Golden Farm Brooklyn, Inc. d/b/a Golden Farm Grocery

National Labor Relations Board - Administrative Judge Opinions

Jul 1, 2014

29-CA-112315 (N.L.R.B. Jul. 1, 2014)

JD(NY)–29–14
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GOLDEN FARM BROOKLYN, INC. D/B/A
GOLDEN FARM GROCERY
and Case Nos. 29-CA-112315
29-CA-114873
LOCAL 338, RETAIL, WHOLESALE AND 29-CA-118032
DEPARTMENT STORE UNION, UNITED FOOD
AND COMMERICAL WORKERS
Emily Cabrera, Esq. and Naoki Fujita, Esq.,
Brooklyn, NY for the General Counsel.
Francis T. Coleman, Esq., Chevy Chase, MD
for the Respondent.
Eric LaRuffa, Esq. and Matthew Rocco, Esq.,
(Law Office of Richard Greenspan, PC),
Ardsley, NY for the Charging Party.
DECISION
Steven Fish, Administrative Law Judge: Pursuant to charges filed by Local 338, Retail,
Wholesale and Department Union, United Food and Commercial Workers (the Union) in Case
Nos. 29-CA-112315, 29-CA-114873 and 29-CA-118032, filed on August 28, 2013, October 16,
2013 and November 26, 2013,1 respectively, the Director for Region 29 issued an Order
Consolidating Cases, Consolidated Complaint and Notice of Hearing on December 10, alleging
that Golden Farm Brooklyn, Inc. d/b/a Golden Farm Grocery (Respondent) violated Section
8(a)(1) and (5) of the Act by engaging in surface bargaining and withdrawing recognition from
the Union, absent a showing that the Union had lost the unit's majority support, and
notwithstanding the fact that the prior unfair labor practices committed by Respondent were
unremedied and thus, tainted any showing that the Union had lost majority support.
The trial was held before me on January 29 and 30 and February 10 and 11, 2014.
At the opening of the trial, General Counsel, upon prior notice to Respondent, moved to
amend the complaint to include allegations that “Steve” (last name unknown), a store manager,
is a supervisor and/or agent of Respondent and that Respondent by “Steve” committed a
number of 8(a)(1) violations on various dates between August and November and that one of
these violations, an alleged promise to employees of additional hours of work if they signed a
decertification petition, constituted more than ministerial assistance to employees in helping
them get rid of the Union. General Counsel also moved to amend the complaint to request some
additional remedies.

1 All dates hereinafter are in 2013, unless otherwise indicated.
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The motion to amend the complaint was granted, and the trial proceeded until it was
closed on February 11, 2014, as noted above.2
Briefs were filed by General Counsel and Respondent. Subsequent to the receipt of the
briefs, General Counsel sent a letter responding to Respondent's request in its brief to strike
testimony of some of General Counsel’s witnesses due to alleged inappropriate conduct by the
interpreter used by General Counsel to translate the testimony of these witnesses. Thereafter,
Respondent filed an objection to General Counsel’s letter and motion for leave to file reply
briefs. Respondent asserted, therein, that General Counsel’s letter was tantamount to a reply
brief, although no motion to leave to file a brief, as required, accompanied it and it should be
rejected. Further, Respondent asserted that the accompanying brief, which it also filed,
addressed the substance of General Counsel’s letter as well as other matters raised in General
Counsel’s brief. Respondent contended that General Counsel’s brief misstates the facts and
mischaracterizes them to the point of undermining their entire argument in all issues. For these
reasons, Respondent contends that it felt compelled to file the accompanying brief.
General Counsel, thereafter, filed an opposition to Respondent's motion, asserting that
its letter was not a reply brief but rather a response to Respondent's request in its brief to strike
testimony of all of General Counsel’s Spanish-speaking witnesses and that its letter addressed
this limited issue only and did not delve into any other assertion or argument put forth by
Respondent in its brief. Therefore, General Counsel argued that this letter cannot be construed
as a reply brief and should not be rejected.
Further, General Counsel contends that Respondent's request to file a reply brief should
be denied since a mere desire to respond to “questionable contentions” in General Counsel’s
brief is not a legitimate ground upon which to file a reply brief. International Harvester, 227
NLRB 85, 88 (1976) at fn. 1.
Subsequent to this opposition, General Counsel wrote a letter to “correct an error” made
in its post-hearing brief. This clarification appears to have been based on reading Respondent's
reply brief, which pointed out a critical error in the date of a particular comment by “Steve,”
relied upon by General Counsel in its brief. As a result, General Counsel asserted that it had
made an “inadvertent error” and revised its position as to the date of this comment by “Steve,”
and in effect, withdrew its assertion in its brief that this alleged statement by “Steve” tainted the
decertification petition. General Counsel further argued that this change did not change other
arguments in its brief that other unfair labor practices of Respondent and that Respondent lent
more than ministerial aid to the decertification as a whole.
Based upon the above facts, I shall receive and consider all of the documents submitted,
as detailed above. It is apparent that each side chose to respond to allegations made by the
other in their brief and in these circumstances, I find it appropriate to receive and consider the
documents as reply briefs or limited reply briefs and in the exercise of my discretion, I shall do
so. Coca-Cola Bottling Works, 186 NLRB 1050, fn. 2, 20-16 (1970).
On the entire record, including the briefs and the reply briefs and my observation of the
demeanor of the witnesses, I make the following:

2 After the hearing closed, General Counsel made a motion to introduce into the record
documents submitted by one of Respondent’s witnesses. The motion is granted and GC Exhibit
38 is received.
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Findings of Fact
I. Jurisdiction
Respondent is a corporation with an office and place of business located at 329 Church
Avenue, Brooklyn, New York, and has been engaged in the operation of a retail grocery store.
During the 12-month preceding period, Respondent derived gross revenues in excess of
$500,000, purchased and received at its facility, products, good and materials valued in excess
of $5,000 directly from suppliers located outside the State of New York.
Respondent admits, and I so find, that it is and has been at all material times, an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization
It is also admitted, and I so find, that the Union is and has been a labor organization
within the meaning of Section 2(5) of the Act.
III. The Representation Case: Case No. 29-RC-77022
On March 21, 2012, the Union filed a petition in Case No. 29-RC-77022, seeking to
represent employees of Respondent. Pursuant to a stipulated election agreement, signed by the
parties and approved by the Director, an election was conducted on May 2, 2012 of employees
of Respondent in a unit consisting of all regular and full-time employees, including cashiers,
clerks, stock persons, drivers and general merchandise handlers, employed by Respondent,
excluding managers, buyers, office clerical employees, guards and supervisors.
The Corrected Tally of Ballots resulted in 13 yes votes, 8 no votes and 5 challenged
ballots. Thus, challenges were sufficient in number to affect the results of the election.
The Union challenged the ballots of Young Chung Chun,3 Jose Cuautle and Sharon Kim
on the ground that they are supervisors within the meaning of Section 2(11) of the Act. The
Union also challenged the ballot of Kim on the ground that she is a former owner of the
employer and enjoys certain benefits due to her status as a former owner. The Union also
challenged the ballot of Seung Seup Lee on the ground that this individual is not employed by
Respondent. The Board agent conducting the election challenged the vote of Maria Gomez
because her name did not appear on the Excelsior list. Thereafter, the Union and Respondent
filed timely objections to conduct affecting the election.
On May 25, 2012, the Director issued a Report on Objections and Notice of Hearing, in
which he directed a hearing be held before a hearing officer concerning the Union’s challenges
to the ballots of Chun, Cuautle, Kim and Lee, and the Union’s allegation in the first objection that
Respondent interrogated employees and directed that the ballot of Gomez be opened and
counted.4

3 Young Chung Chun is the individual, referred to as “Steve” in the complaint as a
supervisor and/or agent of Respondent.
4 In order to safeguard the secrecy of Gomez’s ballot, it was decided not to open and count
that ballot until disposition of the remaining challenges or until at least one additional challenge
was opened and counted.
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Thereafter, on June 5, 2012, the Director issued a Supplemental Report upholding his
original finding that Respondent did not establish that Lucas Sanchez is an agent of the Union
and his conduct with regard to the election is properly analyzed as that of a third party. No
exceptions were filed to the Director’s Supplemental Report on Objections. Also, on June 5,
2012, the parties entered into a stipulation, wherein the Union withdrew its challenges to the
ballots of Chun, Cuautle and Lee, and the parties agreed that these employees are eligible to
vote and that their ballots be opened and counted. The parties further agreed that Sharon Kim
was not eligible to vote and that the Union’s challenges to her ballot be sustained. Finally, the
parties agreed that Gomez was eligible to vote and her ballot be opened and counted.
Accordingly, the ballots of Chun, Cuautle, Lee and Gomez were opened and counted and a
Revised Tally of Ballots was issued on June 5, 2012. It revealed a final tally of 13 yes votes and
12 no votes and no challenges.
The hearing was held before a hearing officer of the NLRB on June 5, 2012 concerning
the objections filed by the parties. At the hearing, the Union requested to withdraw all of its
objections, which was granted by the hearing officer.
The hearing officer then proceeded with respect to Respondent’s objections, which
alleged that the conduct of Lucas Sanchez, who was an employee of NY Communities for
Change (NYCC), a community organization, affected the results of the election. As noted above,
the hearing officer analyzed the evidence presented based upon the Director’s previous
decision that Sanchez was not an agent of the Union and must be considered as third party
conduct.
The hearing officer’s reports subsequently issued on July 27, 2012, made the following
findings:
Documentary Evidence:
During a conversation more fully discussed below, Lucas Sanchez handed
employee Alberto Lozada an 8 ½ inch by 11 inch size sheet of paper containing
the letterhead, "NY Communities for Change," with Sanchez' name, phone
number and his NY Communities for Change e-mail address on the bottom. (Tr.
70, 72, attachment to Union Ex. 1(a)) More specifically, the document indicates
that, "The Kensington and Brooklyn community support workers from Golden
Farm supermarket (329 Church Ave)," in connection with the workers "suing the
owner, Mr. Sonny Kim, for back pay owed to them after having worked for many
years earning well below the minimum wage." The above document states that,
"New York Communities for Change is a coalition of working families in low and
moderate income communities fighting for social and economic justice
throughout New York State. We are working to ensure that every family
throughout New York has access to quality schools, affordable housing and good
jobs. It is through the power-in-numbers approach that NY Communities is able
to win REAL change for our towns and neighborhoods. For more information call:
Lucas Sanchez..."
Subsequently, the hearing officer considered and did not credit the testimony of
employee Lozada that Sanchez offered him money if he voted for the Union but credited
Lozada’s testimony that he had a conversation with Sanchez, where money was discussed, but
the discussion related to money from the lawsuit, which was referred to in the leaflet given to
Lozada by Sanchez, described above.
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The hearing officer also evaluated testimony from employees Francisco Gomez, wherein
Sanchez on March 4 or 5, 2012 told Gomez about a lawsuit at a store called “Master Food” and
that the employees at Master Food had won already and urged Gomez to participate in the
lawsuit. Gomez asked Sanchez how much money was mentioned, and Sanchez replied,
“You’ve been here a while. He said from $8,000 down.” Gomez testified that he believed that
this was because he wasn’t paid the right amount for his wages. Notably, the hearing officer did
not credit Gomez’s testimony that Sanchez had mentioned the Union in connection with their
conversations.
The hearing officer recommended that the Respondent’s objections be overruled based
on the following analysis:
DISCUSSION:
In third party cases involving threats, the Board will not overturn election
results unless the third party's conduct was "so aggravated as to create a general
atmosphere of fear and reprisal rendering a free election impossible." Westwood
Horizons Hotel, 270 NLRB 802, 803. In third-party cases not involving threats,
the Board has rephrased the standard, to evaluate 'whether the conduct at issue
so substantially impaired the employees' exercise of free choice as to require that
the election be set aside.' See e.g., Hollingsworth Management Service, 342
NLRB 556, 558 (2004) (where electioneering by nonparties was evaluated). The
Board has noted that this heightened standard for objections based on third-party
conduct reflects a recognition of the unfairness of saddling parties with the
consequences of conduct over which they had no control. See Independence
Residences, 355 NLRB No. 153 (2010).
The credited evidence presented at hearing shows that on March 4 or 5,
Lucas Sanchez, had a conversation with employee Francisco Gomez wherein
Sanchez spoke about Master Food. Sanchez also discussed money which
Gomez believed was related to him not being paid the right amount for his
wages, i.e., back pay. Since the evidence does not clearly show that this
conversation took place after March 7 (the filing date of the earlier petition), the
conversation took place outside the critical period. Accordingly, inasmuch as the
evidence does not clearly establish that the aforementioned conversation took
place during the critical period, it is not objectionable. Ideal Electric and
Manufacturing Company, 134 NLRB 1275 (1961). Additionally, the credited
evidence presented at hearing shows that in about mid-March, Lucas Sanchez
had a conversation with employee Alberto Lozada. Contemporaneously,
Sanchez gave Lozada an 8 ½ inch by 11 inch size sheet of paper containing the
letterhead, "NY Communities for Change," with Sanchez' name, phone number
and his NY Communities for Change e-mail address on the bottom. More
specifically, the document indicates that, "The Kensington and Brooklyn
community support workers from Golden Farm supermarket (329 Church Ave),"
in connection with the workers "suing the owner, Mr. Sonny Kim, for back pay
owed to them after having worked for many years earning well below the
minimum wage." The above document states that, "New York Communities for
Change is a coalition of working families in low and moderate income
communities fighting for social and economic justice throughout New York State.
We are working to ensure that every family throughout New York has access to
quality schools, affordable housing and good jobs. It is through the power-in-
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numbers approach that NY Communities is able to win REAL change for our
towns and neighborhoods. For more information call: Lucas Sanchez..." The
leaflet was in English; it was the only document Sanchez gave Lozada. As noted
above, I do not credit Lozada’s testimony that Sanchez offered him $2,000 for
supporting or voting for the Union, as a reliable complete accounting of the facts.
In the circumstances of this case, where Sanchez handed the NY Communities
for Change leaflet to employee Lozada at the time of their conversation, it would
be reasonable to conclude that Sanchez discussed money in connection with the
lawsuit and back pay referred to in the leaflet. This is also consistent with
employee Gomez' testimony that indicated he believed the money Sanchez
referred to in their March 4th or 5th conversation was related to him not being
paid the right amount for his wages, i.e., back pay owed. In this regard, I note
that the Board has recently held in Stericyle, Inc., 357 NLRB No. 61 (2011), that
a union engages in objectionable conduct warranting a second election by
financing a lawsuit filed during the critical period which states claims under
Federal or State wage and hour law claims on behalf of employees in the unit.
Here, there is no evidence that the lawsuit referred to in the leaflet was filed by
the Union or a third party during the critical period.22 Moreover, even assuming
Sanchez, a third party, promised to file a lawsuit on behalf of Lozada, in the
circumstances of this case, I do not find such a promise would be objectionable.
In this regard, a promise to assist an employee concerning his rights under labor
laws or to improve his terms and conditions of employment is clearly
distinguishable from objectionable union conduct which bears no connection to
the employer-employee relationship. Further, Lozada testified that when Sanchez
mentioned the $2,000 to him, he declined and stated that he preferred working.
Lozada also testified that Jose Cuautle, the only other employee that knew about
his conversation with Sanchez, also indicated no interest in Sanchez’ offer.
Accordingly, there does not appear to be evidence that such a promise
substantially impaired the exercise of free choice.23 Compare Hollingsworth
Management Service, 342 NLRB 556, 558 (2004).
SUMMARY AND RECOMMENDATIONS
Based upon the findings of fact, credibility resolutions, and discussion of
the applicable legal principles, it is recommended that Employer Objection Nos. 1
and 2 be overruled. I further recommend that the request for withdrawal of the
Petitioner's allegation in its first objection that the Employer interrogated
employees prior to the election, be approved. As the Tally of Ballots shows that a
majority of the valid votes counted has been cast for the Petitioner, it is
recommended that a Certification of Representative be issued.
22
The Employer would be in a position to know who filed a lawsuit against it and when it was
filed.
23
Although the conversation between Sanchez and employee Gomez took place outside the critical
period, I note that Gomez also testified that he told Sanchez that he was not interested in the
money. (Tr. 95)
No exceptions were filed to the hearing officer’s report, detailed above. Accordingly, the
Board, on September 20, 2012, accepted the hearing officer’s findings and recommendations
and issued a certification of representatives of the Union as the representative of Respondent's
employees in the unit, detailed above, on that date.
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IV. The NYCC Boycott
In June of 2011, NYCC assisted employees in filing a lawsuit against Respondent as
well as against Sonny Kim, its owner, individually for alleged violations of the Fair Labor
Standards Act. The lawsuit was filed as a class action in federal district court in the Eastern
District of New York on June 20 and assigned to Judge John Gleeson. It alleged that
Respondent failed to pay statutory minimum wages as well as failed to proper required overtime
pay to its employees.
Ultimately, a settlement stipulation was agreed upon by the parties, wherein Respondent
agreed to pay an undisclosed sum of money to its employees.5
The lawsuit generated a significant amount of public interest, which resulted in a boycott
of the store and its supporters, including NYCC and another community agency called Occupy
Kensington. The boycott included leafleting, protesting and some entry into the store by
protestors attempting to pay for items with pennies and disrupting the store.
According to Sonny Kim, the picketing and demonstrations occurred at Respondent's
store started in March of 2011. Kim testified that three representatives for NYCC and Occupy
Kensington would bang on drums and buckets in front of the store, come inside the store with
drums and buckets banging, would yell and scream at customers and at Respondent's cashiers,
and while in the store, would attempt to purchase items with bags of pennies and would leave
carts in the aisles filled with goods that they did not even try to check out. He further testified
that he had to call the police because of the confrontation between a demonstrator and one of
Respondent's cashiers.
In September of 2012, Respondent filed a complaint in the Supreme Count Kings
County against NYCC and Lucas Sanchez, alleging various causes of actions, including
trespass, private nuisance and tortuous interference with its relationship with its customers. In
connection with that complaint, Respondent filed a motion with the court for a preliminary
injunction along with an affidavit from Sonny Kim in support of the injunction request. In the
affidavit, Kim asserts that NYCC and Lucas Sanchez as well as other supporters, who are
agents and supporters of NYCC have since October of 2011 been engaged in “a malicious
campaign to disrupt, interfere with, injure and frustrate Golden Farm’s business by conducting
improper, unlawful and unreasonable demonstrations in or around the private property.
Kim’s affidavit as well as its attorney’s memorandum in support of Respondent’s request
for an injunction asserts that the defendants have assembled since October of 2011, a least
once a week and increased in the past month to 2 or 3 times a week and demonstrated for 5-8
hours at a time, with picket signs, loud drums, whistles, sticks and other noisemaking
instruments. It is further alleged that demonstrators often parade into and throughout the store
harassing Respondent's customers, littering the floor with flyers and leaflets, blocking customers
and workers from accessing entrances, aisles and check-out registers as well as blocking
Respondent’s customers from entering and existing the store. It is also alleged that excessive
noise created by the defendants’ drums and whistles was significantly disruptive to
Respondent’s business and that they frequently harass and intimidate customers, who enter the
store by following them throughout the store and while making angry and offensive remarks.

5 The stipulation of settlement was approved by Judge Gleeson, after he denied a motion to
place the agreement under seal, on March 19, 2013, wherein he issued an order dismissing the
case based on the settlement agreement.
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Finally, it was alleged that Respondent was on many occasions required to call the local
law enforcement to have defendants removed from the property. Kim also asserts in his affidavit
that since the demonstrations began in October of 2011, the number of customers of
Respondent has significantly decreased and the volume of sales has decreased by 20%.
The record reflects that as a result of these documents, Respondent was able to obtain
a court order stating that protestors must stay 5 feet away from Respondent’s fruit table.
On November 28, 2012, Kim sent the following letter to the police department in
Brooklyn, NY in regard to the demonstrations and the above court order, which he asserts has
been violated. The letter is as follows:
Commanding Officer, Patrol Borough Brooklyn South
2820 Synder Avenue
Brooklyn, NY 11226
11/28/12
Dear Chief Chan,
My name is Sonny Kim, the owner of a grocery store located at 329 Church
Avenue, Brooklyn NY. I am writing this letter seeking assistance from the Police
Department.
For last two years, I have been dealing with a boycott by Community for change
and Local 338. The organizers and the participants have been harassing me,
worker and customers who continue to support my store.
I went to a court and received stipulation from by Judge Sweeny blocking the
anyone participating in the boycott come within 5 feet of the store or impede any
pedestrian traffic.
The local 338 and the community for change were served with the court paper
but continue to violate the court order.
I have been calling 911 numerous times to seek the police protection. However,
when the police comes, officers often leave without taking any police actions. I
tried to show officers video recording that show how these union people severely
violate the court order. Officers seemed not interested in looking at the video but
just tell these people to stay away from my store.
Of course when the cops show up, they don't do anything that violates the court
order. However, they continue to harass by blocking the entrance shouting and
yelling.
I am attaching the copy of the court order and some of images that show that
these people are violating the court order. Please help me and help my workers
to work without any harassment.
You can contact me at 718-530-3665. Thank you.
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Sincerely,
Sonny Kim
C: CO 66 Precinct
I note that this letter makes a reference to Local 338 (the Union, herein) as having been
involved in the boycott and in harassing his customers and workers and asserts that “Local 338
was served with the court paper,” However, neither of the documents submitted in connection
with the injunction (Kim’s affidavit) and Respondent’s attorney make any reference to the Union
or Local 338 whatsoever and does not assert that the Union was involved in the allegedly
unlawful conduct of NYCC.
It is apparent from Kim’s testimony that he believed that there was union involvement in
the boycott. Indeed, as further evidence will establish below, Respondent continually asserted
during bargaining with the Union that the Union was participating in the ongoing boycott and in
fact, demanded that the Union persuade NYCC to cease the boycott and demonstrations.
Indeed, one of the complaint allegations, to be detailed more thoroughly below, alleges that
Respondent conditioned bargaining over economics on the Union being successful in ending
the boycott and demonstrations, an alleged non-mandatory subject of bargaining.
However, no probative evidence was presented of any union involvement in the boycott.
Indeed, as will be detailed below, whenever Respondent brought up that subject at bargaining,
the Union denied any involvement or participation in the boycott and stated to Respondent's
representatives that the Union opposed such conduct.
The Union’s field director and representative, Jack Caffey, testified that the Union was
not involved in the boycott or demonstrations and that he had made a number of unsuccessful
attempts to persuade Sanchez and representatives of Occupy Kensington to stop such
activities. However, these individuals initially refused to stop and chided the Union for not joining
in the demonstrations.6 Caffey also testified that the Union had initially been contacted by NYCC
representatives and been informed about the lawsuit filed by employees of Respondent and
sponsored by NYCC and that Respondent had paid out $400,000 in back wages. Caffey was
further informed that harassment of employees was going on and that NYCC was afraid that
workers were going to be retaliated against. Thus, NYCC thought it would be a good idea to
have a union in the shop and introduced the Union to the employees. As will be also detailed
below, Caffey continued to press NYCC and Occupy Kensington to cease the boycotting
activities and finally in March of 2013 was successful in persuading these groups to “suspend”
the boycott activities and demonstrations. The boycott and demonstrations did not resume.7

6 Immediately, after the certification in September of 2012 and before negotiations, Caffey,
on his own, contacted Sanchez and asked him to stop the boycott and picketing. He informed
Sanchez that the Union was going to start negotiations, and he did not think it’s a good thing to
have pickets in front of the store while the Union was negotiating and asking for raises. Sanchez
replied that workers were being harassed because of the lawsuit, and he would not stop the
boycott.
7 As will be detailed below, in September, after negotiations broke down, the Union started
picketing, utilizing a “rat” outside the store with two union representatives. No employees of
Respondent or NYCC were involved in this activity.
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V. The Negotiations
The first negotiation session was held on November 28, 2012 at the Williamsburg Diner.
Present were union attorney Eric LaRuffa and union director Jack Caffey. Present on behalf of
Respondent were Sonny Kim, labor consultant Joe Mieluchowski and Ron Pfeiffer,
Respondent's attorney. Prior to this meeting being scheduled, Caffey has asked Pfeiffer about
arranging a negotiation session with Respondent, in view of the certification. Pfeiffer responded
to Caffey that Sonny Kim did not want to meet with the Union because of the boycott and
demonstrations. Caffey replied that the Union had nothing to do with the demonstrations or the
boycott and reminded Pfeiffer that the Union was certified and wished to commence
negotiations.
Sometime after that conversation, Pfeiffer got back to Caffey and agreed to the initial
bargaining meeting, as set forth above, on November 28, 2012. Caffey began the meeting by
stating that Union wanted to put the “bad blood” behind them and move forward in an amicable
way.
Pfeiffer brought up the boycott and stated that Kim believed that the Union was involved,
and Kim was upset that Respondent was losing money as a result. Caffey assured
Respondent’s representatives that the Union was not supporting, advocating or condoning the
boycott.
Caffey handed Respondent’s representatives a typical industry agreement that the
Union had with some other small stores and stated that it would not put Respondent out of
business.
Apparently, prior to this meeting, the Union had filed an unfair labor practice charge,
alleging that Respondent imposed a disciplinary policy that had not been in place prior to the
certification without bargaining with the Union. Pfeiffer addressed that issue and asserted that it
was difficult to manage the store if Respondent had no disciplinary policy, for example, theft or
drinking on the job, so it needed a disciplinary policy to be able to operate without too much
disruption. Pfeiffer gave the Union a list of infractions, such as stealing, gambling on the job and
drinking, where it needed to be able to discipline employees. Caffey responded that the Union
would take a look at the list, and the Union would respond to it during the negotiations.
The parties met again on January 28 at a Marriott Hotel, near La Guardia Airport. At this
meeting with the same participants present, the Union presented a 15-page comprehensive
contract proposal. Thereafter, the parties negotiated based on this proposal and the Union’s
attorney and negotiator LaRuffa would make annotations on the document indicating what was
agreed upon, what was still open and what counter proposals, if any, were presented to each
union proposal.
At the January 28 meeting, both Pfeiffer and Mieluchowski make similar comments
about the negotiations and the boycott. They asserted that Kim was claiming that he was losing
money because of the boycott and that he (Kim) was very angry about it. Therefore, he (Kim)
would not agree to discuss any economic issues until the boycott stopped.
Caffey reiterated that the Union as not involved in, did not participate in and was not
supporting the boycott.
The Union attempted to discuss some of the economic items in their proposal, such as
vacations and holidays. Respondent’s representatives responded that Kim was not even
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approachable about these issues because of the boycott.
The parties then discussed some of the non-economic items in the Union’s contract
proposal. Paragraph 2(a) of the proposal, union recognition, provided that Respondent
recognizes the Union as the exclusive collective bargaining representatives of its employees.
Mieluchowski replied that Kim had a problem with that and he did not want to recognize the
Union as the exclusive bargaining representative for its employees. The Union’s representatives
replied that this is unfortunate, but Respondent was going to have to recognize the Union, in
view of the certification.
The Union’s proposals for a union security clause and checkoff were also discussed.
Respondent representatives rejected both of these proposals, stating that it was up to the
employees to decide if they wanted to join the Union or not and that if the Union wanted to
collect dues, they could collect it themselves.
The Union’s proposal on union visitation (Article 12), provided that the Union’s
representatives may visit the store as long as the visit does not disrupt the regular business
operations. Respondent's representatives rejected this proposal, stating that Respondent did
not want a union representative or any type of agent of the Union at the facility.
The Union proposed a clause, entitled Shop Stewards (Article 13), which provided that
the shop steward is the representative of the Union, and the Union may appoint a shop steward
in the store as well as a request that the steward be given a day off once a year to attend the
Union’s shop steward conference.
Respondent’s representatives' response was that Respondent wanted to appoint the
shop steward because it did not want to deal with the Union. The Union representatives replied
that it is not Respondent, who chooses the steward, but the Union chooses its shop steward.
Respondent’s representatives repeated that Respondent wanted to choose the shop steward
and wanted to deal only with that steward because it did not want to deal with the Union.
The parties next met on February 13 at the same Marriott Hotel. Tom Coleman was
Respondent’s attorney and represented Respondent at this meeting as well as at subsequent
sessions. At this meeting, the Union submitted a revised proposal to Respondent, which was
discussed in part. Respondent, at this meeting, agreed to recognize the Union (Paragraph 2(a))
as the collective and bargaining representatives of the employees.
Paragraph 2(b), Union security, was discussed. Respondent’s representatives stated
that Kim would not agree to it because he did not feel that employees should be required to be
made members of the Union. Respondent’s representatives repeated its previous opposition to
the Union’s checkoff clause, stating that Kim would not agree to it because he believed that if
the Union wanted that, they should get it themselves.
The Union attempted to discuss wages, but Respondent's representatives stated that
Kim was reluctant because of the boycott, and Respondent would not talk about wages or any
economic issues until the boycotts are down. Caffey replied again that the Union did not want
the boycott, was not involved and that it cannot control a third party. Respondent's
representatives repeated that they would not discuss any economics until the boycotts are
down.
The Union’s proposal on visitation was discussed as well, and once again, Respondent
rejected it, stating that Kim did not want any union representatives in his store.
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The shop steward clause was also discussed, and once again, Respondent’s
representatives stated that Kim wanted to appoint the shop steward, and that was the person
that Kim wanted to deal with. LaRuffa and Caffey responded that the Union was responsible for
selecting the shop steward, and Respondent should have no role in that decision.
The parties also discussed the Union’s arbitration proposal (Article 18), which provides
for arbitration, if the parties do not or cannot meet within 15 days of the dispute or if they are
unable to adjust the dispute between themselves. Respondent did not want to agree to go to
arbitration immediately, and the Union agreed that the parties should meet before arbitration is
scheduled, as provided for in their proposal. Respondent’s representatives replied that it wanted
to deal only with the shop steward on all grievances and not the union representatives. The
union representatives responded that normally the shop steward is not involved in the grievance
procedure at that level and that Respondent must meet with the union representative on the
grievance. LaRuffa added that the shop steward could file a grievance but that the union
representative must be the one, who Respondent deals with on grievances, prior to the
arbitration being scheduled.
The parties then turned to discussing the disciplinary policy that Respondent had
proposed implementing. Caffey, on behalf of the Union, stated that the Union was hesitant to
sign off on a point system, as Respondent had proposed. Caffey also commented why should
the Union agree to a disciplinary policy when Respondent has a store manager, Steve, who has
been browbeating, harassing and threatening employees and generally giving the employees a
hard time. Mieluchowski responded, “We know he’s a problem.”8
The next negotiation meeting was on March 22 at the Marriott Courtland Hotel. During
the previous session, Caffey had urged that Respondent bring Sonny Kim to the negotiations,
so that the Union could explain to him that it was not responsible for or participating in the
boycott and that it was trying to have the boycott end.
At the March 22 meeting, Kim was in attendance along with Coleman and Mieluchowski,
plus an individual introduced as a partner of Kim, who was present for part of the meeting but
said nothing.9

8 My findings with respect to this latter discussion are based on a compilation of the credited
portions of testimony of Caffey, LaRuffa, Coleman and Mieluchowski. I do not credit the
testimony of Caffey that both Coleman and Mieluchowski admitted that Steve was a manager
(which was not corroborated by LaRuffa) nor Mieluchowski’s testimony (not corroborated by
Coleman) that Mieluchowski specifically stated that Steve was not a manager. Rather, I find, as
I related above, that Mieluchowski responded, “We know he’s a problem,” as testified to by both
LaRuffa and Caffey, and not denied by Coleman. I also note, in this regard, Mieluchowski’s
negotiation notes, reflected as follows: “Union informed me that Steve (Management) told
employees that support the Union the company had guys lined up to replace them.” There is
nothing in the notes that reflected that Respondent disputed Steve’s status as management.
9 The individual was named Joong Yun. According to Kim’s testimony, Yun is actually the
sole owner of Respondent and that Kim is now only the manager. According to Kim, he was the
owner of Respondent until 2009, when he sold it to Yun and that since that time, Kim has been
the manager and Yun the owner. Kim did not dispute the testimony of the union witnesses, as
described above, that Respondent identified Yun as a “partner” of Kim at the negotiations.
Further, Kim testified that he is only the "manager” and that he essentially makes all major
decisions, such as running the store, dealing with employees and making decisions concerning
Continued
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Kim stated, at the meeting, that he was very angry about the boycott and that he
believed that the Union was involved and supporting it, and that he was drawing a line in the
sand and would not discuss economics because of the boycott. Caffey replied, “Let’s try to be
civil.” Kim answered that he would not be civil until the boycott is over with.
Caffey insisted that the Union was not doing this boycotting, was not participating or
supporting it, and in fact, had made efforts to get the people, who were involved in the boycott to
stop it. Caffey specifically informed Kim that he had made calls to Sanchez of NYCC and
explained to Sanchez that NYCC needed to pull the boycott because of the detrimental effects
on the negotiations.
Kim answered by repeating his prior comments about “drawing lines in the sand” and
added that he had no intention of attending any other sessions. At that point, Kim and Yun left
the meeting.
The remaining participants (LaRuffa, Caffey, Coleman and Mieluchowski) turned to
discussing non-economic issues, such as union security, checkoff and union visitation. The
position of Respondent was the same as it had been previously. Respondent rejected the
Union’s proposals, stating that it did not want to force people to join the Union and that it was up
to the Union to convince employees to become members, and that if the Union wanted dues,
they could collect it directly from the employees. Respondent also reiterated that it did not want
any union agent or organizer on the premises at any time.
The subject of shop stewards was again discussed, and Respondent agreed that the
Union would be able to select the shop steward, as opposed to Respondent's prior position that
Respondent could decide who the shop steward would be. However, Respondent continued to
insist that the shop steward be the union representative involved in the grievance procedure and
that it would not allow the union representative access to the store for any purpose, including
meeting to discuss grievances.
During this meeting, Respondent's representatives proposed that the duration of the
contract be for one year from the date of the contract’s signing and ratification. The Union had
proposed a three-year agreement.
Shortly after this meeting, Caffey and the union officials again spoke to Sanchez and
were able to persuade NYCC (and Occupy Kensington) to suspend the boycott.
The parties met again in early April. Caffey began the meeting by stating that the Union
had been able to convince NYCC and Occupy Kensington to suspend the boycotts, “to see how
things went” and that the Union expected to start discussing economics.
Respondent's representatives responded that because of the boycott Respondent had
lost business so that it could not make any offers on wages or other economic issues due to the
impact of the boycott on its business.
The discussion then turned to open non-economic items, such as union security,
checkoff and visitation. Respondent adhered to the same position that it had taken at the
previous sessions with respect to these issues. Respondent did not believe that it should have
_________________________
the bargaining.
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to compel anyone to join the Union if they don’t want to and if employees wanted to join the
Union, the Union can go collect dues from the employees. They repeated that Respondent did
not want a union staff member on its property.
While Respondent agreed that the Union could select the shop steward, it continued to
insist that Respondent would deal only with that shop steward during the grievance process
since Kim did not want to deal with union representatives.
The parties agreed to the Respondent’s proposal for a temporary disciplinary policy to
be in effect for the period of negotiations.
Subsequent to that meeting, on April 10, Mieluchowski sent LaRuffa an email, attaching
the agreed upon language on the temporary disciplinary policy that the parties agreed upon to
be effective only for the period of negotiations, so management could run its store. The email
requested that the Union sign off and return it to Mieluchowski. Ultimately, the Union executed
this document.
The parties next met on June 2 with the same individuals present. The Union presented
a new wage proposal, modifying its previous request for wage increases.
Respondent’s representatives rejected this modified proposal of the Union, reiterating its
previous position that due to the impact of the boycott, it was not prepared to offer any wage
increases to the employees.
The parties did discuss other items in the Union’s proposed contract, including some
economic issues such as vacation, holidays, funeral leave and sick days. Respondent made
counterproposals on each of these items, and the Union made some additional
counterproposals.
The parties agreed upon Article 16 of the Union’s proposal, as modified, entitled Funeral
Leave. The agreement was that all employees, who, after completing 150 actual working days,
have a death in the immediate family, shall be entitled to two consecutive working days off with
pay. Immediate family is defined, and the employees shall provide proof of death upon request
when they return to work.
No agreements were reached on the other economic issues discussed, such as
vacations, holidays and sick leave although, as noted, Respondent did submit
counterarguments on these subjects and discussed them with the Union as well as some
additional counters from the Union on these matters.
I note that Respondent had been providing no current benefits with respect to any of the
above items.
After that meeting, on June 18, LaRuffa prepared a document, which reflected his
summary of where the parties stood on each issue. It consisted of the Union’ proposed
agreement and indicated where there were agreements and what were the open issues and the
counterproposals on each of the outstanding issues. He forwarded this document to
Mieluchowski, who emailed LaRuffa back a response, dated June 23. This email from
Mieluchowski thanked LaRuffa for the email, commented that LaRuffa had done a good job in
summarizing the state of negotiations and stated that he had three minor corrections to make,
which Mieluchowski highlighted. The email added that if LaRuffa and Caffey feel that the
highlighted areas must be discussed, please advise and a conference call can be worked out.
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Otherwise, Mieluchowski suggested that calendars be compared and a meeting scheduled. One
of the highlighted areas in Mieluchowski’s email referred to Article 18 was the arbitration
provision and referred to Respondent’s counterproposal of referring to Respondent's meetings
with the shop steward and then if the grievance is not resolved after the request of either the
Employer or the Union, the Employer and the Union shall meet within 15 days, and if they
cannot reach agreement, the dispute shall be submitted to arbitration.
The Union’s proposal on arbitration made no mention of any role for the shop steward
and reflected that the Employer and the Union shall endeavor to meet within 15 days after
Respondent is advised of a dispute. It further states that if the parties did not meet within 15
days Respondent is advised of the dispute and the parties are unable to adjust the differences
between themselves, the dispute shall be submitted to arbitration.
The parties met again in July. Caffey stated that the Union needed to get a wage
increase for the employees. The Union offered to sign a one-year contract if the wage increase
was 50 cents an hour in that year or alternatively a three-year contract with a 40-cent raise the
first year and $1.00 over three years.
Respondent rejected that Union’s proposals, stating that due to the impact of the
boycott, it was proposing a wage freeze.
The parties discussed all items in the Union’s proposed contract and indicated which
items were and had been agreed to and where the parties stood on each proposal. They
included Respondent’s offers on some economic issues, such as holidays, vacation and sick
leave. In that regard, Respondent proposed after one year of employment, employees would
receive one paid holiday, and after twenty-four months, two holidays, after three years of
employment, they would be entitled to five vacation days, and after ten years, ten days, and
after working three years, employees would receive one sick day.10
Other items discussed included leave of absence, overtime work hours, seniority and
management rights, which were or had been agreed upon previously.
Union security, checkoff and union visitation were also discussed, and Respondent
again rejected these union proposals for the same reasons expressed in the previous sessions,
including that it did not want to deal with the Union at the store.
After that meeting, LaRuffa prepared another document which he sent to Mieluchowski,
summarizing LaRuffa’s view as to the parties’ positions and the status of negotiations at that
time after the July meeting. This document reflected that the parties had reached agreement on
the following items:
Article 1(a)(b)(c)(e) and (f) only – Definition and Coverage

10 The Union proposed all employees employed for six months shall be entitled to five paid
holidays, and then counterproposed all employees employed for twelve months received these
holidays. On vacations, the Union maintained its proposal of five days vacation pay for
employees employed between one and seven years, ten days for employees employed
between seven and twenty years, and fifteen days for employees employed for twenty years or
more.
The Union had requested three sick days per year for all employees employed one year or
more.
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Article 2(a) only – Union Recognition and Union Shop
Article 3(a)-(d) – Probationary Period and Tenure of Employment
Article 4 – Hours of Work
Article 6 – Overtime Pay
Article 9 – Management Rights
Article 10 – Individual Agreements
Article 13 – Shop Stewards
Article 14 – Benefit Returns
Article 16 – Funeral Leave
Article 17 – Leave of Absence
Article 18 – Arbitration – except the issue of what the shop steward’s role would be
Article 19 – Severability
With respect to the arbitration proposal, Article 18(b), the clause agreed upon by the
parties contained the identical language in the Union’s proposals. That is no reference is made
to the shop steward or the shop steward’s role in the arbitration process. LaRuffa included a
statement in his document, “dispute remaining over the shop steward’s role in the procedure.” In
his testimony, LaRuffa explained that while there had been an agreement that the shop steward
would not have to be included in the steps of the grievance procedure since the Respondent
was still insisting that the union representatives had no access to the store, there was still an
issue remaining to be resolved, which the Union viewed as pertaining to the arbitration clause.
Essentially, LaRuffa appears to be asserting that since the Respondent was refusing to allow
the union representatives on the premises that the Employer would be unable to meet with the
Union within the 15 days specified in the grievance procedure.
On August 23, the parties’ next, and ultimately, last negotiation session was conducted
by conference call. The parties discussed the updated proposal and some of the open issues.
Mieluchowski stated that Kim did not want to pay anyone while they didn’t work, which led to a
limited discussion and no agreements on the open issues, such as vacations, sick days and
holidays.
The subject of wage increases was discussed. Respondent was still insisting on a wage
freeze. The parties mentioned that the minimum wage would be going up by law, as of January
1, 2014.
Caffey stated that the Union was interested in a contract with raises, effective
immediately, and wanted to also resolve all open issues, including union access, union security
and dues deductions.
Respondent’s representatives replied that it was difficult dealing with Sonny Kim but that
they wanted to come back with an offer for the Union.
The parties then caucused among themselves on the phone. Caffey informed LaRuffa
that he had been called by the union president and told to go immediately to one of the union
shops to handle a problem. Caffey told LaRuffa to restart the conference call without him, and
he would try to return to the call, if possible.
Thus, when the conference call resumed, it included only LaRuffa, Mieluchowski and
Coleman. Coleman began the discussion by stating that Respondent had an offer to convey to
the Union but that he and Mieluchowski had not discussed it with Kim and still had not received
Kim’s OK, but if the Union agreed to it, they would go back to Kim to get his approval and that
they felt that with their strong support and urgence, Kim would agree to the proposal. The
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proposal was for a contract that would last until December 31, a contract for essentially four
months. Coleman proposed a raise of fifty cents an hour immediately for employees but added
the requirement that the Union would agree to prevent any third party from engaging in
boycotting or picketing against the store. Further, Coleman stated that the Union had a deadline
of 11:59 p.m. on Monday, August 26 to accept the offer. LaRuffa replied that he did not think
that the offer would fly too well with Caffey but he would present it to the Union. LaRuffa asked
Coleman to send the offer to him in writing, so he could present it to Caffey.
An email exchange between LaRuffa and Mieluchowski began on Friday, August 23 at
1:54 p.m. and ended on Tuesday, August 27 at 9:03 a.m. The exchange is set forth below:
From: Eric LaRuffa [mailto:eric.rmglaw@verizon.net]
Sent: Friday, August 23 1 2013 1:54 PM Joe Mieluchowski
Cc: Jack Caffey
Subject: Re: Update Conference Call Number
Joe,
Subject to the Union's review of the Company's "tentative" proposal which you
will be sending, the Union is suggesting to meet either in-person or via
conference call on either 8/28/13, 8/30/13 or 9/6/13. Please advise asap.
From: Joe Mieluchowski
To: Eric LaRuffa
Cc: Jack Caffey; francistcoleman@gmail.com
Sent: Saturday, August 24, 2013 8:34 AM
Subject: RE: Company Proposal & Future Meetings
Eric,
First, Tom will be away on vacation beginning Tuesday 8/27/13 and will not be
returning until mid-September.
Second, as we indicated, our contingent proposal is only on the table until 11:59
PM Monday 8/26/13. It is unfortunate that Jack got called away from negotiations
prior to its conclusion yesterday and discussion regarding this proposal did not
include him. Based on your email regarding scheduling additional meetings I
send you the proposal that we discussed yesterday, in writing, it appears that the
union has already rejected it. If this is the case, there is no need for me to send a
written version. Please advise me at your most earliest opportunity as to if this is
the case or not. If it is the case, all of our other positions from prior negotiating
sessions up to this point remain unchanged. Unless the union is willing to agree
to our last offer, there appears little point in further meetings.
Again, let me know at your very earliest opportunity if you still want me to send
our written contingent proposal for your consideration, since the dates that you
suggest indicate that the union won't accept our conditional proposal within the
time frame that we proposed.
Joe Mieluchowski
President/ Owner
National Labor Relations Consulting
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www.nlrc.info
0: 484-770-8384
C: 215-287-1740
Email: jm@nlrc.info
From: Eric LaRuffa [mailto:eric.rmglaw@verizon.net]
Sent: Tuesday, August 27, 2013 8:32 AM
To: Joe Mieluchowski
Subject: Re: Company Proposal & Future Meetings
Yes,
Send your proposal.
From: Eric LaRuffa [mailto:eric.rmglaw@verizon.net]
Sent: Tuesday, August 27, 2013 9:20 AM
To: Joe Mieluchowski
Cc: RMGLAW; Jack Caffey
Subject: Re: Company Proposal & Future Meetings
I believe that it was incumbent upon the Employer to provide the document in
writing as it advised it would. I expressly advised that I did not have the authority
to accept or decline the offer. Further, I requested that you provide the offer, as
you said you would, in writing so that the Union could review it.
-- Original Message ---
From: Joe Mieluchowski
To: Eric LaRuffa
Cc: francistcoleman@gmail.com
Sent: Tuesday, August 27, 2013 9:03 AM
Subject: RE: Company Proposal & Future Meetings
Eric,
As we discussed, our proposal was on the table up through & until 11:59 PM of
Monday 8/26/13. I regret that our offer was not addressed by the union prior to
that.
Joe Mieluchowski
President/Owner
National Labor Relations Consulting
www.nlrc.info
0: 484-770-8384
C: 215-287-1740
Email: jm@nlrc.info
From: "Joe Mieluchowski"
To: "Eric LaRuffa"
Cc:
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Sent: Tuesday, August 27, 2013 10:35 AM
Subject: RE: Company Proposal & Future Meetings
After Tom & I discussed the offer during our last negotiating session with only
you due to Jack being called away from the negotiations and prior to us having
the opportunity to draft and send you the proposal that was discussed, the union
forwarded future negotiating dates, clearly signaling to Tom & I that our offer was
not being considered therefore, it was not drafted. On August 24th I requested
confirmation of our suspicion, the 26th came and went and the union was not
heard from again until today, 27th regarding this matter.
After receipt of Mieluchowski’s last email on August 27, neither the Union nor
Respondent requested any additional negotiation meetings. The Union filed its charge with the
Region on August 28, alleging that Respondent engaged in surface bargaining and has refused
to bargain in good faith with the Union in violation of Section 8(a)(1) and (5) of the Act.11
VI. The Union’s Picketing
Shortly after the Union filed its charge, sometime in late August or early September, it
began to picket in front of Respondent's store by setting up an inflated rat with a sign stating the
name of the Union. Two union representatives, Eddie Diaz and Marcus Lopez, were present at
the store, Monday through Friday, which lasted through mid-December. On occasion, some
other union representatives would also be present. There is no evidence that any NYCC or
other community group participated in or was involved with this picketing during this period.
During the month of September, Steve approached Diaz and Lopez while they were
picketing. Steve informed the union representatives that Sonny wasn’t going to sign a contract
with the Union and that they were wasting their time. Steve repeated these comments to the
union representatives on several occasions in early September.
In mid-September, Steve approached that union representatives again and began a
number of similar discussions with them over the next several weeks. Steve informed the union
representatives that there were only ten days left for your union, your contract is up. Steve

11 My findings above concerning the negotiations, including the August 23 conference call
are based on a compilation of the credited portions of the testimony of the participants as well
as my examination of bargaining notes, proposals and Respondent’s position statement. There
is very little dispute in testimony about any of the above findings. There is some dispute in
testimony about the terms of Respondent’s offer conveyed in the August 23 conference call
from Coleman to LaRuffa.
I have credited LaRuffa’s version of the conversation. I note that Mieluchowski testified, and
he was asked if there were any conditions attached to Respondent’s offer, other than the
deadline. He responded, “Not that I recall.” Thus, he did not specifically deny LaRuffa’s
testimony, which I have credited, that Coleman also stated that the Union would be required to
agree to prevent any third party from engaging in boycotting or picketing against the store.
More significantly, while Coleman did take the stand to testify concerning another issue
(denying that he had agreed that “Steve” was a manager at negotiations), Coleman did not
testify about the conference call.
Thus, Coleman did not refute or deny LaRuffa’s credited testimony that Coleman
conditioned acceptance of Respondent's offer or the Union’s agreeing to prevent third parties
from engaging in boycotts of picketing.
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added that he is not the boss and he is not going to sign the contract.
A few days later, Steve walked by the union representatives again and said that you
guys only have five days left. A day or two later, Steve approached the union representatives
again. On this occasion, Steve flicked up his hand and said, “You get three more days left for
your contact year to be over.” Finally, in the last discussion, Steve told the union representatives
that the Union’ s “out of here in another day or two,” and added that the Union should get
somebody to replace employee Martin because Respondent was “going to let Martin go once
the Union is out of here.” Martin is employee Martin Gonzalez, who was one of the leading
union supporters as well as once of the witnesses for General Counsel in this case, whose
testimony will be detailed below. Gonzalez credibly testified that he was present and overheard
Steve commenting outside the store, sometime in August, while the protest was happening in
front of the store, that as soon as the protest was happening in from of the store was over, every
member “is going to go home.”12
VII. The Withdraws of Recognition
On October 11, the Union received a letter from Coleman, advising that Respondent is
withdrawing recognition from the Union “based on objective evidence that the great majority of
Golden Farm’s employees have clearly signified that they no longer wish to be represented by
Local 338, RWDSU/UFCS.” This resulted in another charge filed by the Union in Case No. 29-
CA-114873 on October 16, alleging that Respondent unlawfully withdrew recognition from the
Union.
On November 21, 2013, Coleman sent another letter to the Union, once again
withdrawing recognition from the Union. The letter indicates that this letter is a follow-up to
Coleman’s previous October 11 letter and states that the Region regards that petition, which
served as a basis for Golden Farm’s earlier withdrawal of recognition as an insufficient basis for
withdrawal. It goes to say that while Respondent does not agree with the Region’s position, Kim,
Respondent’s owner, “received new petitions signed by 26 of its 32 bargaining unit employees.”
These petitions stated unequivocally that each and every signer no longer wished to be
represented by Local 338 and on the basis of these new petitions, Respondent renews its
withdrawal of recognition of the Union as representative of its employees, covered by the
Board’s certification. The Union then filed another charge in Case No. 29-CA-118832, alleging
that this withdrawal of recognition was also violative of Section 8(a)(5) of the Act.
Respondent presented a number of witnesses and documents in connection with the
petitions submitted to it, supporting its decisions to withdraw recognition, as detailed above, in
its October and November letters.
Bong Ki Hong (Bong) and Jimmy Hong (Jimmy) (father and son) were both employees
of Respondent. Bong Hong began working for Respondent in approximately February of 2013.
Bong had previously owned and operated businesses in Mexico and China. His company in
Mexico had a union representing its employees, and he characterized his experience with
unions in Mexico as unpleasant.

12 The above findings concerning Steve’s comments in August and September is based on
the credited testimony of Diaz and Gonzalez. While Steve testified and denied that he ever
threatened any employees with terminations because of their support for the Union, he did not
deny making any of the statements attributed to him by Diaz and Gonzalez, as I have detailed
above.
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According to Jimmy, Bong had informed him that because of the union, Bong had to
close his factory in Mexico.
Bong returned to the United States in 2009 and began working for the Korean-American
Small Business Service Center doing office work. Sonny Kim was and is a member of this
association, and Bong met him at that time. At some later point, Bong asked Kim if he could
give a job to his son, Jimmy, who was in college. Respondent hired Jimmy in late 2012, after the
union election and certification.
Thus, Jimmy was an employee of Respondent before his father became employed by
Respondent as a part-time employee in February of 2013.
Both Jimmy and Bong testified that Jimmy spoke to Bong at some point about his
dissatisfaction with the “union” at the time of the demonstrations by NYCC, where the
demonstrators were banging drums, paying with pennies and messing up the store. According
to Jimmy, he believed that the Union was involved in the boycotts and protests because he saw
some of the protestors were wearing union buttons and because some of the cashiers told him
that they believed that the protestors had been hired by or were working with the Union.
According to Jimmy, this boycott and demonstrations were making more work for him and he
was unhappy about it. He testified that he spoke to some other employees during that period of
time, who informed him that they were unhappy about the Union because of the boycott and
that as the Union was progressing, Respondent was losing money because of the boycott and
employees as a result were losing hours.
Jimmy testified that he spoke to his father at that time about the boycott and the conduct
of the protestors and complained to him about it, and his father informed him that they were not
suppose to be in the store. However, according to Jimmy, he did not discuss with Bong getting
rid of the Union until September of 2013 when the picketing resumed.
According to Bong, Jimmy mentioned to him at the time of the boycott by NYCC that
Jimmy did not know whether it was a union boycott or a strike and that they were there every
day.
Both Jimmy and Bong agreed that they did not discuss getting rid of the Union or the
petitions until late September of 2013. According to Jimmy, the picketing and boycotts started
again at the time and he decided that he wanted to do something about the Union. He asserts
that he spoke to his father and said the Union was back, they were pissing me off, they’re
making more work for me, that he had enough of the Union and what can we do about getting
rid of them. Jimmy further stated that Bong replied that he (Bong) is not a fan of unions in the
first place and he would look into determining what can be done to do something about the
Union.
Bong concurred with Jimmy that the first time that he and Jimmy spoke about getting rid
of the Union was in September of 2013, but his testimony about what was said differs from
Jimmy’s. According to Bong, Jimmy asked him why “such a small store a union is needed,
especially in light of the fact that we were paying these workers hourly wages.” Bong added that
Jimmy asked if there is some way that this union activity and boycott in such a small store could
be stopped. Bong further testified that he replied that he did not know that answer and he would
look into the matter.
Bong testified further that he researched on various websites, including the National
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Labor Relations Board and finally found a website for the Right to Work organization. This
website provided information as well as sample language for a petition, which he printed out and
used in preparation for the petitions, which were eventually circulated by Jimmy as well as other
employees of Respondent.
Both Jimmy and Bong concurred that Bong prepared that petition and the language and
gave it to Jimmy to circulate amongst Respondent's employees.
According to Jimmy, Bong gave him the petitions and informed him that to get signatures
from a majority of employees, then they can get rid of the Union.
Bong testified that when he gave the petition to Jimmy, he told Jimmy that it was written
in three different languages (Spanish, Korean and English) and instructed Jimmy to show it to
each employee in whatever their first language is and ask them to read it. He also claims that he
told Jimmy not to press anyone to sign it, it should be completely voluntary and that they should
not tell the owner or the manager that they were circulating the petition because that would be
contrary to the rules. Bong further asserts that he added that “we may not obtain 50 percent of
the signature, and it may fall through and it may become a moot point, and there was no need to
aggravate and irritate the bosses, the managers.” Bong further testified that he had looked into it
and found that it was lawful and possible (to get rid of the Union), “so let’s try this.” Bong added,
“My son is the type, who, you know, he goes along with his father’s wishes, and, you know, I
told him, you know, we should try this, and he went. He didn’t, you know, speak against it. You
know, under our culture, he respects me.”
Jimmy testified that upon receiving the document from his father in late September, he
began to distribute the petition to employees in the store and that he enlisted employee, Jose
Cuautle, to speak to the Spanish-speaking employees and to cashiers, Angelina Garcia and
Sherry, to distribute it to the other cashiers. They all agreed to do so and, according to Jimmy,
these employees were also in favor or getting rid of the Union. According to Jimmy, Angelina
and the cashiers blamed the Union for the demonstrations and for the reduction in hours.
Jimmy further testified that he had conversations when he first started working with
employees about the Union, and primarily the produce employees, such as Victor, Jose and
Martin, were in favor of the Union but that most of the other employees, including the cashiers,
were not happy with the Union because of the boycott and did not want the Union.
Thus, in late September, Jimmy testified that he distributed the petitions as well as the
explanatory language contained therein to the English-speaking employees and Korean-
speaking employees. He also testified that he gave the Spanish translation, plus blank petitions,
to Garcia and Cuautle to distribute to the cashiers and other Spanish-speaking employees.
According to Jimmy, he distributed the petition to English-speaking employees, Egminiriz
Tim and Lena Hong on September 22 and signed the petition himself on that date, He also
testified that he showed the explanatory language accompanying the petition and its purpose
and the actual petition, signed by the employees as well as Jimmy himself, contained the
following language at the top: “Hereby request that our employees immediately withdraw
recognition from the Union, as it does not enjoy the support of a majority of employees in the
bargaining unit.” Jimmy testified that he gave the documents to Hong and Tim and told them to
read it and if they didn’t want the Union to represent us, they could sign it. They both read the
documents and petition and signed the petition on that date.
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Jimmy further testified that he obtained the signature of employee Francisco, also on
September 28, with the assistance of Angelina, who translated for him to Francisco in Spanish
what the petition was. Initially, Jimmy asserts that Francisco was reluctant to take the paper or
to sign but after Garcia spoke to him in Spanish, he signed it. Jimmy could not understand what
Garcia said to Francisco.
Jimmy also testified that he obtained signatures from employee Mike (Mannonov) and
his father Bong on September 30 and from employees, Tony Diaz and David Choudhly, on
October 1. These petitions also contained the language cited above, that the signatures request
that the employees immediately withdraw recognition from the Union as it does not enjoy the
support of a majority of employees in the bargaining unit.
Jimmy testified that he told these employees to read the language and they did and
explained that it was about the Union and if they want to sign it and “we have enough people,
we can get rid of them.” They read it, said fine and signed the document.
Jimmy testified that he solicited the signatures of Korean-speaking employees, Myong
Lii Park, Boo Young Lee and Hyung Zuk Oh, on September 28. He asserts that he told these
employees that if they want to get rid of the Union, they should read and sign the petition.
According to Jimmy, they read the petition and the accompanying explanation in Korean and/or
English and signed the petition, which contained the same language, detailed above, at the top,
referring to the request of the employer to withdraw recognition from the Union “as it does not
enjoy the support of employees in the bargaining unit.”
Garcia and Cuautle corroborated Jimmy’s testimony that he gave them the petitions and
accompanying explanations in late September and explained it was to “get rid of the Union,” and
for them to read it and circulate it to other Spanish-speaking employees. Sherry, another
cashier, was present when Jimmy spoke to Garcia and both of them were enthusiastic about
handing out the petition to get rid of the Union. Cuautle read the paper and said OK and took
the documents from Jimmy.
Garcia testified that she obtained the signatures of employees that she identified as
cashiers. She specifically named Maria, Margarita and Estella as cashiers, whom she solicited,
and also testified that she obtained signatures from all of the cashiers. The document that she
identified as having been signed by the employees contained five names and signatures,
including her own. The names and signatures of Shemane Zakir Zakim, Margarita Gomez and
Maria Gomez contained dates of September 28. Garcia’s signature was dated September 29,
and that of Estella Flores was dated September 30. Garcia did not corroborate Jimmy’s
testimony that she assisted him in helping translate and obtaining the signature of Francisco. I
note that the last name on the signature of Francisco is not possible to read. However, the
Excelsior list in the representation case lists an employee, Francisco Gomez, as a stock person.
Garcia also, at another point in her testimony, stated that she solicited signatures only from the
cashiers.
According to Garcia, she told these cashiers to read the petition and the language on it
and the accompanying documents and sign it if they wish and that she added, if they do not
want to sign, no problem. They all read it and signed the petitions without any questions or
discussion. Garcia denied that she promised any benefits if they signed the petition or promised
them any additional hours or additionally money if they signed the petition.13

13 Employee Roberto Ramirez Martinez testified that he overheard Garcia speaking to
Continued
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Garcia testified further that she gave the petition that she got signed to Jimmy.
Cuautle testified, also corroborating Jimmy’s testimony, that he obtained the signatures
of several Spanish-speaking employees in late September and one on October 1.
According to Cuautle, he showed these employees the petition along with several other
pages of explanatory language in Spanish.14 Cuautle testified that he obtained the signatures of
employees Marcus, Hugo, Joshua, Javier, Alejandro, Jose Perez and Rolando. The pages that
he identified as having been obtained by him in September and October consisted of three
pages. The first page contained the Spanish translation of the petition of the explanatory
language reading “the undersigned employees of Golden Farm do not want to be represented
by” and the name of the Union was left blank on this document. However, the explanatory
pages, which, as noted, were according to Cuautle, given to the employees did contain the
Spanish translation of this language with the Local 338 filled in after the phrase “do not want to
be represented by.”
The first page of the document, which, as noted, contained the language without Local
338 filled in, and a blank space in that section, contained two signatures, the first one, Cuautle’s
signature and the second one, Marcos Gomez). Both of these signatures had dates of August
28 listed next to their names. Cuautle testified that the dates were a mistake and the actual
dates were September 28 and not August 28 as reflected on the petition.
The second page identified by Cuautle contained one name that of Alejandro with no last
name, dated October 1, 2013. This page contained no other language on it but, as noted,
Cuautle testified that he did show the employees, whose signatures he solicited, the Spanish
translations of the explanatory language referred to above.
The third page of the document identified by Cuautle contained the signatures of four
employees. This document also did not contain any explanatory language on it but contained
only the four employees’ signatures and dates.
The first two names on this document were Jose Perez and Rolando with a last name
crossed out, both signatures dated August 28. Accordingly to Cuautle, both of these signatures
were also dated improperly and were signed on the same date that he and Marcos signed the
petition on September 28. This document also contained the signatures of Hugo and Joshua
and another name, which has a first name that appears to read “Javier.”
The record does reflect that the Excelsior list contained the name of an employee, Javier
Rios Sevilla, living on E. 9th Street in Brooklyn. Further, General Counsel called as a witness
Jesus Consuelo Rios Sevilla, who was also employed by Respondent, as a witness and whose
name appeared in the Excelsior list with the same E. 9th Street address as Javier Rios. Rios
_________________________
cashiers about the petition and that she told the employees that the boss will find out who’s with
him and who’s not, and if they signed, they would get more money and more hours. Martinez
testified that he couldn’t recall the exact date of this conversation that he overheard, but it was
about a month ago. He testified on January 30, 2014. Martinez did testify as to who or how
many employees Garcia was speaking to when he overheard these comments.
14 These pages are the translation of the English version of the explanatory language,
testified to by Jimmy and Bong, detailed above, that Bong testified that he obtained from the
Right to Work website.
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Sevilla testified that Javier Rios was his brother and that Javier informed him that he (Javier)
had signed the petition to decertify the Union because he (Javier) was afraid of getting fired.15
Cuautle testified that he made no promises or threats to any of the employees from
whom he solicited signatures. According to Cuautle, he gave the petition, plus the explanatory
pages to each employee and asked them to read the pages and the petition and sign if they
wanted to. Cuautle testified that he also said and understood the petition and the documents
given to him by Jimmy, and understood that he was signing the petition because he didn’t want
the Union. Cuautle states that he asked the employees to read the petition and the
accompanying documents, that it was about the Union and that they could sign or not.
He also testified that he gave the petition and the signatures that he obtained to Jimmy.
Jimmy and Bong are in agreement that after Jimmy obtained the signatures that Jimmy
gave the petition, plus the explanatory documents back to Bong.
Subsequently, these documents were transmitted to Respondent’s attorney, which led to
Respondent's first withdrawal of recognition, as detailed above.
However, the testimony of Bong and Kim is inconsistent and muddled concerning how
these documents, plus an additional list of employees, came to be submitted to Respondent's
attorney. Kim testified first, initially asserting in his direct testimony that he first received these
petitions from Bong by email and that subsequently Bong gave him the original petitions.
On cross-examination, however, Kim testified that he spoke to Bong in late September,
before receiving the petition, during which Bong informed Kim that Bong’s son Jimmy had come
to him and wanted to find out how to get rid of the Union. Bong further informed Kim, according
to Kim, that he (Bong) was going to look it up on the internet about how to decertify the Union
and that he was going to get three separate petitions, one in English, one in Korean and one in
Spanish. Kim asserts that Bong said that he knows lots of things about unions16 and added that
it was up to Bong and Jimmy to do it or not.
Kim further testified that he became aware that the petition was being circulated by
Jimmy, Angelina and Jose. Kim claims that sometime in early October, Bong came to him with
the original petitions that Jimmy and the other employees had obtained and informed him that
he had obtained signatures from 26 employees and that he wanted to send it to Respondent's
lawyer. Kim further testified that he gave Bong his lawyer’s email address, and two days later,
Bong spoke to him again and informed Kim that he had emailed copies of the petition to
Respondent’s lawyer (Francis Coleman) and gave Kim the original petitions and instructed Kim
to put them in his safe and make sure not to lose it.
Kim further testified that after he received the original petitions, he prepared a list of
Respondent’s employees using the Excelsior list and Respondent’s wage statements, and in
some cases, asked employees for their last names.17
Kim testified that based on this effort, he prepared a document, entitled, “Golden Farm

15 Javier did not testify.
16 Kim testified that he knew that Bong had experience dealing with unions in Mexico.
17 The wage statements that Kim referred to that he consulted did not include employees’
last names.
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Employees,” which reflected the number of employees at the time and compared signatures of
the employees, which were included on the wage statements.
This document, according to Kim, reflected the names of the employees, and which
employees signed the petitions and which did not sign the document, is set forth below:
GOLDEN FARM EMPLOYEES
1 JOSE CUAUTLE X
2 MARTINE SILVA
3 ROBERTO MARTINEZ
4 FRANSISCO GOMEZ
5 GONALO PARALTA
6 VICTOR SILVA
7 JAVICER RIOS X
8 JESUS DELCONSUELO
9 MARIA YOMEZ
10 MARGARITA GOMEZ
11 ANGELINA GARCIA
12 SHAMANE ZAKIR
13 MOUNG UI PARK
14 JOON CHUL LEE X
15 BOO YOUNG LEE
16 BONG KI HONG
17 MIKE MANNONOV
18 TONY DIAZ
19 LENA HONG
20 DAOUD CHOUDHIG
21 EGMNIZRZ TIM
22 JIMMY HONG
23 ESTELA FLORES
24 YOUNG OH
25 ROLANDO YOMEZ
26 JOSE PEREZ
27 HYUNG OH
28 HUGO TOSHUA
29 MARCOS GOMEZ
30 RODOLFO PRIEGO
31 ALEJANDRO YOMEZ
32 NOH SOON PARK
As noted, this document does contain a list of employees with an “X” marked next to
three names but Kim furnished no testimony as to what these three “Xs” meant. He did testify,
however, that based upon this list and the signature comparison that he made, as detailed
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above, he determined that a majority of Respondent’s employees had signed the petition.18 He
further asserted that he emailed the petition and the list of employees to his attorney, and after a
discussion with the attorney, in which the attorney told him that he had received the email from
Bong, the attorney (Coleman) told Kim that he would send it to the NLRB and withdraw
recognition from the Union.
Kim also testified that when he compared the signatures on the petition with those of
Respondent’s employees, Bong had already sent copies of the petition to his attorney. Kim
further testified that Coleman had asked for a list of employees and that he subsequently
forwarded the list to Coleman that he prepared.
During the investigation, Respondent’s attorney, Coleman, sent in a position statement
to the Region, reflecting Respondent’s position and arguments and attached various supporting
documents. These documents included copies of the petitions signed by the employees, which
also included circled numbers next to each signature. The numbers corresponded to the
numbers that appeared on the document. For example, the first signature on the list of
employees was Cuautle. Thus, next to Cuautle’s signatures on the petition was a circled “1.” On
the list at number “31” is Alejandro Yomez. The petition, as related above, contains the name
Alejandro with no last name, dated October 1, 2013. Number “25” on the list is Rolando Yomez.
The petition lists Rolando with no last name and was dated August 28, 2013.
Further, number “7” on the list is Javier Rios, while the petition contains only the first
name, which appears to read Javier.
When asked on cross-examination about these numbers, Kim testified that he wrote the
numbers on the petition and sent it to Coleman in early October, and as a result of the
comparison of the list and the signatures, as noted above, the withdrawal of recognition was
sent by Coleman to the Union.
Bong testified subsequent to Kim, and his testimony was significantly different from Kim
in several respects concerning several of the above matters. According to Bong, after he
obtained the signed petitions from Jimmy, he brought them to Kim and informed Kim that he had
obtained signatures from employees. According to Bong, Kim asked what it was about, and
Bong explained that this “is a legal way for us to stop the union boycott, I found out, and I got
the signatures. And that the necessary number of employees signed off on this petition.” Bong
then asserts that he added that it may be advisable to send it over to an attorney so he could
review it before sending it to anyone else. Bong further states that he added that more than 20
people had signed the petition and that he (Kim) looked at the petition and flipped through the
pages at that time. Kim then, according to Bong, gave Bong Respondent’s attorney’s email
address. Bong denied that he had spoken to Kim about the petition prior to it being circulated,
contrary to Kim’s own testimony, as related above, and asserts that the only conversations that
he had with Kim about the Union were when Kim allegedly informed him that “I got hurt” in a
discussion about the Union at some prior time. Bong also testified that he had told Kim about his
own experience with unions in Mexico.
Bong, at first, testified that he then emailed copies of the signed petitions to Coleman. At
that point, when General Counsel requested copies of the email to Coleman, Coleman stated
that he never received any email from Bong. Bong then changed his testimony and stated that
the email address that he was given was actually to “Joe” and that is where he sent the email.

18 Kim also testified that there were signatures from 26 employees on the petition.
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When asked by General Counsel whether the email that he sent contained numbers
next to the signatures, he then stated that he sent two emails to “Joe,” the second of which
contained the numbers next to the signatures. According to Bong, it was he (and not Kim), who
wrote the numbers next to the signatures.
The email that Bong eventually sent was finally retrieved by Bong and produced after the
hearing closed and was introduced into the record. This revealed one email, and not two, from
Bong was sent to “Joe” on October 3, 2013 at 11:41 am.19 The email reads, “Dear Sir, If you
need more detail information let me know.” The email contained attachments, which included a
list of Golden Farm employees from 1-32, which is similar to the list identified by Kim that he
identified and allegedly utilized to compute the number of employees, who signed. The
attachments also included the explanatory language that accompanied the petitions as well as
copies of the petitions with the number circled next to their names from the attached list. Again,
Bong insisted that he had written in the numbers next to the signatures on the petitions. Bong
did not testify where and when he had obtained the list of Respondent's employees that he
submitted to “Joe,” nor how he was able to determine which names corresponded to which
signers. For example, as noted above, the signatures appearing on the petition had no
signature of Rolando and “Javier” or “Javicer” had no last names included. He did not indicate
how he concluded that number “2” was the signature of Javicer Rios and number “25” of
Rolando Yomez.
Kim testified that after the first petition was sent and the first withdrawal of recognition
forwarded to the Union that he was informed by Coleman that the petition had to be redone.
According to Kim, Coleman told him that the petition submitted was “insufficient” because each
signature needed to have a heading on the same page that contained the signatures, explaining
what the petition was meant to convey.
According to Kim, he then spoke to Bong and explained what his attorney, Coleman, had
explained to him was wrong with the first petition and a new petition had to be circulated and
that there needed to be headings on each page of signatures in Spanish, English and Korean.
Kim states that Bong told him that he would try to go back and make new forms on the
computer and try to put a heading on each signature page.
Bong’s testimony is slightly different but similar to Kim on this issue. Bong testified that
Kim told him that at the end of October that Respondent’s attorney had informed Kim that the
petition was insufficient and needed to be redone and that the signatures needed to be obtained
all over again in “a proper form.” According to Bong, Kim told him that the signatures were
signed erratically, meaning that some pages had only two signatures and others’ four, and it had
to be redone more neatly and simpler.
According to Bong, he redrafted the petitions and with explanatory language on each
page in three languages and gave the documents to Jimmy to recirculate to the same
employees, who signed the first petition. The second batch of petitions, as testified to by Bong
and confirmed by Jimmy, consisted of documents in three languages, entitled, “Petition to
Remove Union as Representative.” Each page then included the language that “the
undersigned employees of Golden Farm do not want to be represented by Local 338 hereinafter
referred to as the Union.” It also contained language that if the undersigned consisted of more
than 50% or more of the unit employees, the employees request that the employer withdraw

19 Joe is Joe Mieluchowski.
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recognition from the Union as it does not enjoy the support of the majority of the employees in
the bargaining unit.
Jimmy testified that he then distributed and obtained signatures from the same
employees that signed the first petition with the assistance of Garcia and Cuautle.
They obtained the signatures and, which were turned over to Jimmy, who gave the
petitions to Bong. Bong then submitted the new signed petitions to Kim. The new petitions
consisted of six pages with each page containing the heading, as described above, in the
language of the signers. Thus, one page included a Korean translation with five signatures,
three dated October 13, one dated November 9 and another November 17. Two pages had an
English translation of the language and included five signatures dated October 30, three dated
October 31 and one dated November 2. Finally, three pages include a Spanish translation,
contained twelve signatures, dated from October 30 to November 4.
After Bong gave the new petitions to Kim, he told him that he had obtained new
signatures and gave them to Kim. Bong also testified that he asked Kim to give him back the
originals of the first petition that Bong had given to Kim to keep, so that Bong could compare it
to the second set of petitions. Bong asserted that he did so and confirmed the fact that the same
signatures were on each and returned the originals to Kim.
Kim did not testify about the latter event, but merely stated that Bong returned the
second set of petitions to him and that he (Kim) reviewed the second set and determined that
the signatures were the same. Kim testified further that he reviewed the new petitions and again
compared the signatures with a list of its employees, ones employed at the time of the second
petition. Kim testified that this list contained 31 employees and while the prior list contained 32
names since one employee was in the hospital between the dates of the two petitions. Kim
prepared a second list of employees entitled, “Golden Farm employees,” which contained 31
names, and Coleman marked a column “signed,” which contained an “X” for 26 employees and
column marked “not signed,” which contained an “X” for five employees.
Kim testified further that he then sent a copy of the new petitions, plus the above-
detailed list of employees to Coleman, who in turn, sent a second withdrawal of recognition
letter to the Union in November, as detailed above.
The record also reflects that the list of employees submitted by Kim and prepared by
Respondent did not contain the name of Young Chung Chun (Steve). According to Kim, Steve
was out of work at the time of the signing of the first petition, so he was not asked to sign it.
Therefore, Steve was not asked to sign the second petition although he was back at work by
that time since he had not signed the first one. Jimmy confirmed that Steve wasn’t there when
the first petition was signed, so he didn’t ask Steve to sign the second petition since he only
asked the same people, who signed the first petition to sign the second petition.
I note though that when Steve testified, he testified the he was out sick for three days in
December but not in September and October when the petitions were circulated. Steve added
that when the first petition circulated, he understood from some employees that Jimmy was
looking for him to sign but that he (Steve) was never asked to sign either petition.
The record reflects that two signatures on the petitions, described above, were Joon
Chal Lee and Noh Soon Park. These names did not appear in the wage statements, provided to
General Counsel in response to its subpoena in this proceeding. Kim testified that both of these
individuals were employed by Respondent at the time that both petitions were signed, and in
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fact, were still employed as of the date of the trial. According to Kim, Lee is a buyer and Park
was and is a nighttime cashier. Kim testified that these employees do not punch timecards but
do sign in, but Respondent did not produce any sign-in sheets or wage sheets for these
individuals. Kim testifies that this wife, Sharon, prepared the documents to be sent to the Region
to respond to the subpoenas, implicitly arguing that she simply overlooked submitting wage
statements or sign-in sheets for these employees. However, Sharon was not called as a witness
nor were any wage statements or sign-in sheets submitted that included these employees.
I note that neither of these two names appeared on the Excelsior list, which was
prepared at the time of the election in the fall of 2012.
Jimmy testified that he solicited the signatures of both Lee and Park and testified that
these individuals worked for Respondent at night and that he obtained their signatures in the
evening on October 1, 2013. Park and Lee also signed the second petition on October 30, 2013.
Finally, it is also notable that the certification specifically excludes buyers from the
bargaining unit along with managers, office clerical employees, guards and supervisors as
defined by Section 2(11) of the Act. As related above, Kim testified that Lee was employed as a
buyer.
Respondent produced a document pursuant to a subpoena entitled, Golden Farm Staffs
Schedule. It lists names of 33 employees, plus schedules and has a heading of department.
This document lists a “Mr. Park,” as a night cashier, working from 8pm to 8am (Thu.), 8pm-2am
and off days on Tue. and Wed. It also lists “Joon Chul,” as a buyer, working 3am to 11am with
off days on Sat. and Sun.
The Excelsior list, which as noted, reflected employees as of September of 2012, listed
an employee, Muong Park as a cashier but had no listing for a Hoo Soon Park.
VIII. Status and Conduct of Steve
Young Chung Chun (Steve Chun) has been employed by Respondent for approximately
eight years. According to Steve, he is a stockman, that he has items that he handles, keeps
track of inventory, places orders, takes deliveries and displays them. The Excelsior list listed
him merely as a “stockperson,” while the staff schedule listed Steve as “grocery buyer and
security.” That schedule also, as noted, listed Joon Chul as a buyer and also listed Jose,
presumably Cuautle, as produce buyer, working from 8am to 8pm. No other employees have
the listing of buyer.
A number of employees, who testified, including Garcia, who was a witness for
Respondent, testified that they considered or believed Steve to be a manager.20 These
employees testified that they were told by other employees that Steve was a manager and that
when a customer or an inspector asks to see a manager and Kim is not there, the employees
refer that individual to Steve.
In December of 2013, Steve approached Silva while he was working peeling potatoes.
They had an argument, Steve pushed Silva and pushed the box of potatoes to the floor. At that
point, Kim came over and started yelling at Steve in Korean and Steve screamed back at Kim,

20 Employees Victor Silva, Hugo Hernandez, Martin Gonzalez, Jesus Consuelo, Rio Sevilla
and Roberto Ramirez Martinez.
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also in Korean. After Kim and Steve finished their yelling at each other, Steve turned to Silva
and said to Silva in Kim’s presence, “Why are you still working here. The boss is not going to
give you a contract. And, the Union is not going to come here. Why don’t you go home?” Kim,
who was present during these comments, did not say anything. Silva then turned to Kim and
said, “What’s going on with your manager?” Kim replied, “I don’t know, maybe he is crazy.” Silva
did not go home, as Steve had ordered, and continued to work for Respondent after the above
comments from Kim.
According to Silva, the above incident with him was a familiar and common result.
Employees Benjamin and Alberto were also told by Steve that they were fired and that these
employees subsequently went to Kim, and Kim also overruled Steve and told the employees
that Steve was crazy.
Martin Gonzalez works for Respondent in the produce department. He testified that his
direct supervisor is Jose Cuautle but that Steve is also a manager and that Steve writes orders,
receives merchandise that arrives and has given work orders to Gonzalez, such as to go sweep
the street, which Gonzalez complied with when told to do it by Steve.
About two years ago, Gonzalez was passing by Steve while at work and said excuse
me. Steve then turned around, started to curse at Gonzalez and then said to Gonzalez, “If you
don’t want to work, you can go home.” Gonzalez initially complied with Steve’s instructions and
went home. At that time, Gonzalez was a participant in the lawsuit against Respondent,
described above. When he did go home, he telephoned the attorney in charge of the lawsuit,
who informed him that he should return to work and that only if the owner fired him, he should
go home.
The next day, Gonzalez returned to work. He spoke to Cuautle, who, as noted, Gonzalez
considered to be his direct supervisor. Gonzalez asked Cuautle what did he think about
yesterday and what Kim said about it. Cuautle responded that Kim said that he didn’t care if
Gonzalez came back to work or not. Gonzalez asked Cuautle what he thinks. Cuautle
responded that Gonzalez should go ahead and work like nothing happened. Gonzalez did not
speak to Kim about the incident and he continued to work for Respondent since that day.
Sometime in August of 2013, Gonzalez was outside the store with onions when he
overheard Steve make a comment to other employees that “as soon as the problem stops,
every worker is going to go home.” According to Gonzalez, the problem that Steve was referring
to was “the protest that was happening in front.”21
Sometime in December of 2013, Gonzalez was having a work-related discussion with a
co-employee, Bonafacio, when Steve observed their discussions and called Bonafacio over to
talk to him. Later on, Gonzalez asked Bonafacio, “What did the manager say?” Bonafacio
replied that Steve informed him not to talk to Gonzalez because Gonzalez was a bad person.
Gonzalez was never asked to sign the decertification petition by any of the solicitors and, as
related above, Jimmy testified that the produce employees, including Gonzalez, were known to
be union supporters, which explains why he as well as the other produce employees were not
asked to sign the decertification petition.
Jesus Consuelo Rios Sevilla testified that he works on the night shift in the dairy
department and his direct supervisor and manager is Steve. Steve gives Rios Sevilla orders,

21 As noted above, the Union began picketing in late August of 2013, utilizing a rat.
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such as to clean the dairy and clean the shelf and that he complies because if he doesn’t, he
will get fired. Rios Sevilla was asked by a customer to speak to a manager because there were
problems with a cashier. Rios Sevilla informed the customer that at 8:00, Steve, the manager,
will be in and the customer could speak to him.
Sometime in December, Rios Sevilla was working in the freezer downstairs. Rios Sevilla
was putting in a box of milk and Steve was checking that order of a box of milk that had arrived.
Steve said to Sevilla that “when the Union leaves as well as Roberto, Victor and Martin, I will
give you more hours and more money because you are the number one person, you are a good
person.”
Roberto Ramirez Martinez works for Respondent since 2005 in the vegetable area. His
hours are 11am to 8pm. He testified that his direct supervisor is Cuautle and that Steve is the
manager for the grocery department. Martinez testified that Steve receives all grocery products
in the morning and in the afternoon and places orders for the next day for the products. Steve
also signs for delivers that come in for products, such as rice and other products, and will pay
the delivery employees with a check from Respondent or with cash. He testified that Steve gives
orders to employees, such as when Martinez was on the phone, Steve told him to stop talking
on the phone and get back to work. Martinez testified that he stopped talking because I know
that he’s my manager and I knew if I don’t follow what he’s saying, they’re going to fire me
automatically.
Martinez was not asked to sign the decertification petition that was circulated in the Fall
of 2013. As I have detailed above, he did testify to overhearing a conversation between Garcia
and some co-workers about the petition, which, as also noted above, Garcia denied.
About 15 days from the date of his testimony, which would make it in January of 2014,
Martinez was speaking with a newly hired employee, whose name he did not know, and Steve
called the employee to the back. After the employee returned from his conversation with Steve,
the employee said to Martinez that he (Martinez) was a fathead. Martinez asked if the employee
was calling him a “fathead,” and the employee replied yes. Martinez asked why and the
employee answered that Steve had said to him that “you, Victor and Martin are fatheads.”
Martinez asked what was going on and why was he telling Martinez all this. The employee
replied, “Well, Steve told me that I couldn’t talk to you, that you are bad people because you
called the Union.”
At around the same time, Martinez overheard Steve speaking to this same employee.
Steve told this employee to help the boss with signatures for the Union to leave, and if the Union
leaves, then “we will give you more hours of work.” Steve also told the employee “not to talk to
him (referring to Martinez) that he (Martinez) was a bad guy and that “we were shit and we
needed to leave.” Steve did not have a petition in his hand at that time. The employee did not
respond to Steve and merely nodded his head.
About four years ago, Martinez was listening to music on the radio while he was working.
According to Martinez, he had previously asked Kim if he could listen to music while working,
and Kim agreed that he could do so.
However, Steve came over to him, took his radio and kicked it and destroyed it. Martinez
asked Steve what’s the problem, why are you going this. Steve replied that Martinez’s area was
messy, he didn’t clean up. Martinez replied that he did not work yesterday, so he wasn’t here.
Steve responded that it doesn’t matter.
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Another employee came over and told Steve to calm down and corroborated that
Martinez wasn’t working that day. Steve replied that he didn’t care and that both Martinez and
the other employee should leave. According to Martinez, Steve “fired us.” However, Martinez
recalled that previously Kim had informed him that he (Kim) was the boss and only Kim can fire
someone. Therefore, Martinez and the other employee didn’t go home but spoke to Kim about
the incident. Kim told them to go back to work and “to pay no mind to Steve, that he’s crazy.”22
The record also contains several notices of inspection documents, signed by an
inspector from the New York State, Department of Agriculture and Markets dated on June 7,
2012, September 25, 2012 and October 3, 2013, respectively, which reflected that an inspector
made an inspection of Respondent’s store on these dates, and included the results of the
inspections. Thus, two of the reports found no critical deficiencies and that the establishment
was in substantial compliance, but the third report indicated critical deficiencies, which were
detailed in the report. All of these documents were signed by Steve Chun on behalf of
Respondent and reflected that his title was manager. In fact, Chun signed his name next to or
under the designation of manager on each of these forms.
While Chun conceded that his signatures appeared on these documents, I do not credit
his testimony that he told the inspector that he was not the manager and that Kim, the manager,
is not there this week. He also asserted that after he saw that his signature was next to the title
of manager, he told the inspector it was a mistake and also allegedly said “you seem to be a
good worker, you might as well be a manager.”
I find this testimony to be disingenuous and not believable, and I do not credit his
testimony in this regard. I note that Steve admitted that he posted the notice at the store and
that it was his job to post the notice after the inspector completed the report. Further, other
testimony from employees in this record confirmed that when an inspector comes into the store,
looking for the manager and Kim is not there, that the employees refer the inspector to Steve
and that Steve accompanies the inspector while they conduct the inspections.
Therefore, I find that Steve signed the reports as manager of Respondent, and further
that Steve held himself out as manager to the inspectors, employees and customers when
customers asked to see a manager, as testified to by the employees.
The record also contains two documents entitled, discipline notice for employee, Cecilio
Trinidam, on July 2 and 3 of 2012. The documents contained the employee’s name, the date of
the infractions and the details. One was a violation of the no call, no show policy and the other
violation reflected that the employee was drunk on the job and contained specific details of this
activity and how the employee looked on the day in question. These documents were signed by
Steve Chun as well as by Jose Cuautle, designated as senior grocery man and senior produce
man, respectively. Steven Chun testified that he wrote up the documents as the direction of

22 My findings with respect to the above conversations between Steve and the employees
and conversations that employees heard between Steve and other employees are based on the
credited and mutually corroborative testimony of Silva, Rios and Martinez. I note that Steve did
not deny making any of the specific comments attributed to him by the employees. Steve merely
made generalized denials of the complaint allegations. Further, the testimony of all the
witnesses, who were all current employees, is apt to be particularly reliable since it is testimony
adverse to their personal interest. Farris Fashions, 312 NLRB 547, 554 fn. 3 (1993), enf. 32
F.3d 373 (8th Cir. 1994); Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Advocate
South Suburban Hospital, 346 NLRB 209 fn. 1 (2006).
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Kim, who signed the documents, next to the title of manager. Kim confirmed that he instructed
Chun to write up the notices and that Chun did so in addition to signing of the notices as a
witness.
Edwin Diaz, as noted above, is a union representative, who was involved in the picketing
on behalf of the Union with the rat at Respondent’s store in late August. Diaz was also
organizing for the Union in March of 2013 outside the store. He had come to the store because
Gonzalez had informed him that Respondent had posted something on the wall that he should
see. When Diaz arrived, Gonzalez was speaking to a young Russian employee. They were
talking, and Diaz approached the employees and asked the Russian employee if he knows
what’s been going on the last year with the workers. The employee replied that he knew and felt
it was unfair. At that point, Steven Chun walked out from the store, and when the employee saw
Steve, he walked away from Diaz and Gonzalez. A few minutes later, Diaz approached the
employee while he was unloading the van. Diaz asked what’s happening. The employee replied
that “we’ve been told that if we talk to you, we’re going to get fired.”
Later, on that same day, Diaz began to take pictures of the posters that Respondent had
posted, which reflected that 75% of the workers didn’t want the Union. Steve approached Diaz
and asked what he was doing. Diaz answered that he was taking pictures and added that “this
is a violation.” Steve responded that Diaz was wasting his time taking these pictures because
Sonny (Kim) had already lined up private workers at unemployment to replace the five guys that
we had there. So, as soon as the Union was out, these guys, Sonny would replace them with
the five guys lined up at unemployment. Gonzalez was two feet away from Steve and Diaz
during this conversation.
IX. Analysis and Conclusions
A. The Motion to Strike Testimony of General Counsel’s Witnesses
Respondent renews its motion in its brief to strike the testimony of General Counsel’s
witnesses, who testified with the assistance of a Spanish interpreter.
Several of General Counsel’s witnesses testified in this proceeding using the same
interpreter to translate their testimony from Spanish to English. During the testimony of these
witnesses, Angelina Garcia, an employee of Respondent (and a potential witness of
Respondent), was present and observed their testimony. Neither Garcia nor anyone else at the
hearing made any objection at trial to any of the translations made by the interpreter or made
any assertion that the translation was inaccurate or incorrect.
When Respondent called Garcia as a witness in its case, Garcia testified that the
interpreter used to translate the testimony was an individual, who participated in the NYCC
demonstrations and boycott in the Spring of 2012, and specifically recalled that this individual
participated in the demonstration on behalf of NYCC and came inside the store and had an
argument with Garcia at Garcia’s register. According to Garcia, the individual came to her
register with a lot of shopping. Garcia said that she was with the boycott and would not check
her out. According to Garcia, the interpreter replied to her, “I do whatever I want to because this
is the USA. If you want to go, go back to your country.”
Garcia testified that she recognized that the interpreter and the individual, who
participated in the demonstrations and had the argument with her, are the same person
because she “was fat” and that she (Garcia) also saw this individual on a video on the internet
downloaded by NYCC concerning Respondent.
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The interpreter did not testify in this proceeding.
Respondent contends that Garcia’s testimony establishes that the interpreter was a
participant in the NYCC boycott and demonstrations against Respondent and that she cannot
be construed as an unbiased interpreter and should not have been used to interpret the
testimony of the witnesses in this proceeding. Therefore, Respondent contends that the
testimony of all of the General Counsel’s Spanish-speaking witnesses should be stricken.
General Counsel argues, initially, that I should discredit Garcia’s testimony as to her
identification of the interpreter as the same person, who participated in the demonstrations and
boycott, because, according to General Counsel, Garcia’s testimony that she knew that the
interpreter was the same person at the demonstrations because “of how fat she was” was
“incredible.” I find nothing incredible about that testimony, particularly since there is no
testimony or any evidence in the record, indicating whether the witness was or was not “fat.”
Further, Garcia also testified that she observed the interpreter on a video on the internet
by NYCC, which contained pictures of the demonstrations at Golden Farms, as a participant in
these demonstrations. I find that testimony of Garcia credible although, initially, she testified that
she saw the video at the store or on Facebook. More significantly, General Counsel never called
the interpreter to testify on rebuttal to deny Garcia’s testimony that she participated in the
demonstrations on behalf of NYCC or made the comments to Garcia on that day, as Garcia
recounted.
I, therefore, credit Garcia’s testimony, as detailed above, that the interpreter, who
translated the testimony of five of General Counsel’s witnesses, was the same individual, who
participated in the demonstrations and boycott on behalf of NYCC against Respondent in the
Spring of 2013 and had an argument with Garcia during that day, wherein she told Garcia “to go
back to her country.”
Respondent argues in its brief (as it did at the hearing) that based on the above finding
that the Spanish interpreter was anything but unbiased and objective and there was no way for
Respondent to determine if the interpretations of the interpreter were accurate reflections of
what the witnesses responded. It further asserts that the appearance of bias and prejudice
alone is sufficient for rejecting the testimony of General Counsel’s witnesses.
I do not agree. As I ruled at the trial, and as reflected in the record, there is no evidence
that any of the translations by the interpreter were inaccurate or shaded in any way. To the
contrary, Garcia, when she testified, was asked this question, admitted that she heard the
testimony of the witnesses and the translations of the interpreter and conceded that she did not
detect that any errors or mistakes were made.23
I, therefore, reaffirm my ruling at trial that there is no legitimate basis to strike the
testimony of these witnesses, which was translated accurately and correctly.
I reject the contention of Respondent that “the appearance of bias and prejudice” is
sufficient to reject the testimony of these witnesses. There is no evidence that the General

23 Moreover, I also note that General Counsel asserted on the record that she is bilingual
and heard the testimony of the witnesses and the interpretation, and that as an officer of the
court, stated that the interpretations were accurate.
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Counsel was aware, prior to the trial, that the interpreter utilized by the Region may have been a
participant in the demonstrations on behalf of NYCC. Further, I also note that NYCC is not a
party in this case, and there is no evidence that the interpreter had any connection to the Union.
Accordingly, the motion to strike the testimony of General Counsel’s five witnesses is
denied.
B. Status and Conduct of Steve Chun
Although the complaint alleges that “Steve” (Chun) is a 2(11) supervisor and an agent of
Respondent, General Counsel appears to have abandoned the position that Chun is a 2(11)
supervisor as it makes no such contention in its brief. That position is not surprising since the
record is bereft of evidence that Chun had exercised or possessed the indicia set forth in
Section 2(11) of the Act. Thus, I conclude that the record does not establish that Chun was a
supervisor within the meaning of Section 2(11) of the Act, and I shall recommend dismissal of
that portion of the complaint.
However, that still leaves the portion of the complaint that alleges that Chun was an
agent of Respondent, which General Counsel has not abandoned and vigorously argues in its
brief.
That still leaves the crucial issue for determination of whether Chun has been an agent
of Respondent within the meaning of Section 2(13) of the Act.
In this regard, the Board applies common law principles when examining whether an
employee is an agent of the employer. Apparent authority will result from a manifestation by the
principal to a third party that creates a reasonable basis for the latter to believe that the principal
has authorized the alleged agent to perform the acts in question. Southern Bag Corp., 315
NLRB 725 (1994). The test is whether, under all the circumstances, “employees would
reasonably believe that the alleged agent was acting on behalf of management when he took
the action in question.” California Gas Transport, 347 NLRB 1314, 1317 (2006); Great American
Products, 312 NLRB 962, 963 (1993). As stated in Section 2(13) of the Act, when making the
agency determination, “the question of whether the specific acts performed were actually
authorized or subsequently ratified shall not be controlling.”
Here, while I have found that Chun did not exercise supervisory responsibilities sufficient
to establish 2(11) supervisory status, his position and duties are relevant in determining agency
status. It is well-settled that agency can be established when the employee is held out as
conduit for transmitting information to the employees. D&F Industries, 339 NLRB 618, 619
(2003); Hausner Hard-Chrome of KY, 326 NLRB 426, 428 (1998).
Here, I conclude that Respondent placed Chun in a position, wherein employees would
reasonably believe that he was “speaking and acting for management.” The evidence
establishes that Chun directed, assigned and corrected work of employees, told them that they
were terminated or to go home, signed and wrote up disciplinary notices, signed inspection
notices by government agencies as manager, which were posted in the store, dealt with
customers, who asked to see managers and was perceived by employees to be a manager.
Further, while Respondent by Kim overruled Chun’s attempts to discharge employees, he did
not disavow Chun’s conduct to the employees and did not discipline Chun for his conduct in
attempting to fire employees and did not tell employees that Chun was not their manager or
supervisor. Kim’s only comments to employees, when they complained to him about Chun and
referred to Chun as “your manager,” was that Kim said that Chun was “crazy” and not that he
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(Chun) was not a manager or that they should not listen to what Chun tells them.
Therefore, I conclude that based on the evidence, detailed above, that the employees
would reasonably believe that Chun was speaking for management and that he is and was an
agent of Respondent at the time that he engaged in the conduct, described above and below.
D&F Industries, 339 NLRB 618, 619-620 (2003) (assistants to packaging manager held to be
agents although not supervisors of employer in view of their roles in assigning work to
employees; Board concludes that in these matters, the assistants “spoke to employees as
representatives of management and that employees perceived them as such”); Bill’s Electric,
350 NLRB 292 fn. 3 (2007) (foreman found to be agent, who assigned and directed work of
employees and was highest paid employee on jobsite); United States Service Industries, 319
NLRB 231, 237 fn. 4 (1995) (again, status found based on Board’s findings that employer
placed disputed individuals in positions, where employees believed that they spoke on behalf of
management, where they assigned work, checked work of employees, issued written warnings
and were identified as supervisors); Three Sisters Sportswear, 312 NLRB 853, 864-865 (1993)
(section supervisors agents although not 2(11) supervisors, where they assigned and corrected
work of employees and were designated by employer as supervisors); Medical Center
Convalescent Hospital, 247 NLRB 586 fn. 3, 590 (1980) (alleged supervisor held herself out to
other employees as agent of employer by signing documents and warning notices as
supervisor); Portsmouth Ambulance Service, 323 NLRB 311, 314 (1997) (agent in charge, when
manager not present, assigned work to employees and maintained keys to offices); Great
American Products, 312 NLRB 962, 963 (1993) (agent assigned work to employees, warned
employees that they could be terminated if they did not meet production goals and was
introduced to employees as a supervisor).
Since I have found Chun to be an agent of Respondent, I now turn to various statements
made by Chun to employees, alleged to be violative of the Act.
In late August, the Union began to picket outside the store, utilizing an inflated rat with
two or three officials, including Eddie Diaz present. In late August and September, Chun spoke
to Diaz in the presence of other employees and to employees directly outside the store. Chun
informed Diaz that the Union will “be out in another day or two” and that the Union should get
somebody to replace Martin (Gonzalez) because Respondent was “going to let Martin go, once
the Union is out of here.” Chun also informed an employee (overheard by Gonzalez) that as
soon as the problem stops (referring to the Union’s picketing), every worker is going to go
home.”
I find these comments of Chun to be unlawful threats of termination of employees
because of their support for and activities on behalf of the Union.
Similarly, in December, Chun informed employees Rios Sevilla that when the Union
leaves Robert (Martinez), Martin (Gonzalez) and Victor (Silva) will be terminated and that he
(Rios Sevilla) will be given more hours. This comment also represents another threat that
Respondent would discharge union activists because of their union activity in further violation of
Section 8(a)(1) of the Act.
Similarly, also in December, Chun, in the presence of Kim, yelled at Silva and asked
Silva “why are you still working here.” Chun added that the boss is not going to give you a
contract. I find these comments by Chun (which were, as noted, made in Kim’s presence and
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not disavowed by Kim),24 constituted implied requests that employees quit because of their
support for the Union and is an implied threat of discharge. Heritage Nursing Homes, 269 NLRB
230, 231 (1984); Rolligon Corp., 254 NLRB 22 (1981); Stoody Co., 312 NLRB 1175, 1181
(1993); Steinerfilm, 255 NLRB 769 (1981), enfd. in relev part 669 F.2d 845, 849 (1st Cir 1982);
Bell Burglar Alarms, 245 NLRB 990 (1979); Jobbers’ Supply Inc., 236 NLRB 112, 118 (1978);
Sans Souci Restaurant, 235 NLRB 604, 606 (1978); Rabco Metal Products, 221 NLRB 1230,
1233 (1975); Padre Dodge, 205 NLRB 252 (1973) (asking employee, a known union adherent,
why if he was not happy on the job, did he continue his employment, conveys to employee that
management considers engaging in union activity and continued employment essentially
incompatible); NLRB v. Crystal Tire Co., 410 F.2d 916, 918 (8th Cir. 1969) (statement to
employees if they wanted a union, then they should work for another company).
During the above conversation (also, as noted, in Kim’s presence and not disavowed by
Kim), Chun told Silva that Respondent was not going to sign a contract and that the “Union is
not going to come here.” This statement by Chun is also an unlawful threat of futility of Section
8(a)(1) of the Act. Equipment Trucking Co., 336 NLRB 277, 283 (2001); Outboard Marine Corp.,
307 NLRB 1333, 1335 (1992), enfd. mem. 9 F.3d 113 (7th Cir. 1993); Airtex, 308 NLRB 1135 fn.
2 (1992). I so find.
Finally, I have found above that employee Martinez told a fellow employees that Chun
had informed that employee that Martinez, Gonzalez and Silva were “fatheads” and that Chun
informed the employee not to talk to Martinez and “that you are bad people because you called
the Union.”
Gonzalez had a similar conversation with a different fellow employee, who informed him
that Chun had instructed this employee not to talk to Gonzalez. A union representative was
informed in March by an employee that the employee could not talk to Diaz because he had
been told that he could not talk to Diaz because he would be fired. I find that these comments
by Chun were further violative of Section 8(a)(1) of the Act. P.S.K. Supermarkets, 349 NLRB 34,
36 (2007) (directive to employee “not to be seen speaking with anyone from the union”); Airport
2000 Concessions, LLC, 346 NLRB 958, 959 (2006) (supervisor’s instructions to employee not
to speak to union organizer is unlawful).
I recognize that these findings are based on hearsay testimony from Gonzalez, Silva and
Diaz as to what Chun told the respective employees. However, the Board permits and relies on
hearsay evidence, where such evidence is probative and corroborative. Dauman Pallet, 314
NLRB 185, 186 (1994); RJR Communications, 248 NLRB 920, 921 (1980); Livermore Joe’s Inc.,
285 NLRB 169 fn. 3 (1987).
Here, I find that the credited testimony of the three witnesses presents corroboration of
the similar comments allegedly made to three different employees by Steve Chun.
I find additional corroboration of this hearsay testimony from the direct testimony of
Silva, that I have credited above, wherein Chun made similar comments directly to Silva in the
presence of Kim, who did not disavow these statements made by Chun.
I, therefore, conclude that Respondent further violated Section 8(a)(1) of the Act by
these comments made by Steve Chun to employees.

24 See Intertherm, 235 NLRB 493 (1978).
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C. The Alleged Surface Bargaining
Under Section 8(d) of the Act, an employer and its employees' representative are
mutually required to "meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment…but such obligation does not compel
either party to agree to a proposal or require the making of a concession...." "Both the employer
and the union have a duty to negotiate with a 'sincere purpose to find a basis of agreement,"'
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (quoting NLRB v. Herman Sausage Co.,
275 F.2d 229, 231 (5th Cir. 1960)), but "the Board cannot force an employer to make a
'concession' on any specific issue or to adopt any particular position." Id. (quoting NLRB v. Reed
& Prince Mfg. Co., 205 F.3d 131, 134 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953)). The
employer is, nonetheless, "obliged to make some reasonable effort in some direction to
compose his differences with the union, if [Section] 8(a)(5) is to be read as imposing any
substantial obligation at all." Ibid. (Emphasis in original.) Therefore, "mere pretense at
negotiations with a completely closed mind and without a spirit cooperation does not satisfy the
requirements of the Act." Mid-Concrete, 336 NLRB 258, 259 (2001), enfd. sub nom. NLRB v.
Hardesty Co., 308 F.3d 859 (8th Cir. 2002) (quoting NLRB v. Wonder State Mfg. Co., 344 F.2d
210 (8th Cir. 1965)). A violation may be found where the employer will only reach an agreement
on its own terms and none other. Id.; Pease Co., 237 NLRB 1069, 1070 (1978).
In determining whether a party has violated its statutory obligation to bargain in good
faith, the Board examines the totality of the party's conduct, both at and away from the
bargaining table. Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d
1173 (10th Cir. 2003); Overnite Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d
815 (7th Cir. 1991); Atlanta Hilton & Tower, supra, at 1603. From the context of the party's total
conduct, the Board must decide whether the party is engaging in hard but lawful bargaining to
achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the
possibility of arriving at any agreement. PSO, 334 NLRB at 487.
The Board considers several factors when evaluating a party's conduct for evidence of
surface bargaining. These include delaying tactics, the nature of the bargaining demands,
unilateral changes in mandatory subjects of bargaining, efforts to bypass the union, failure to
designate an agent with sufficient bargaining authority, withdrawal of already-agreed-upon
provisions, arbitrary scheduling of meetings, and insistence on non-mandatory subjects of
bargaining, Bryant & Stratton Business Institute, 321 NLRB 1007, 1042 (1996). Atlanta Hilton &
Tower, supra, at 1603. It has never been required that a respondent must have engaged in
each of those enumerated activities before it can be concluded that bargaining has not been
conducted in good faith. Altorfer Machinery Co., 332 NLRB 130, 148 (2000). Indeed, avoidance
of the statutory bargaining obligation can be demonstrated without engaging in wholesale and
wide-ranging activities in every one of these areas; rather, a respondent will be found to have
violated the Act when its conduct in its entirety reflects an intention on its part to avoid reaching
an agreement. See Id at 130 fn. 2.
I conclude that based on the totality of conduct that Respondent conducted its
negotiations with a closed mind, which included a series of roadblocks designed to thwart and
delay bargaining. Fallbrook Hospital, 360 NLRB No. 73 ALJD slip op at 9 (2014).
I note that although the Union was certified on September 20, and shortly thereafter the
Union by Caffey requested the commencement of negotiations, Respondent throughout its first
attorney, Ron Pfeiffer, initially refused to meet, stating that Kim would not meet with the Union
because of the boycott and demonstrations. Caffey replied that the Union had nothing to do with
the demonstrations or the boycott and that the Union was certified and wished to commence
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negotiations.
After that conversation, Respondent finally relented and agreed to a meeting on
November 28, unreasonably delaying negotiations for over two months. However, when
negotiations began, Respondent's representatives continued to assert that Kim was angry about
the demonstrations and the boycott and that Respondent was losing money as a result. Thus,
Respondent would not discuss any economic issue until the boycott stopped. Caffey reiterated
that the Union did not participate in and was not supporting the boycott and attempted to
discuss some economic items in its proposal that it had submitted. Respondent's
representatives responded that Kim was not approachable about these issues because of the
boycott.
Thus, it is clear that from the start of negotiations and until June of 2013, Respondent
has refused to discuss economic issues until the demonstrations and boycott have ended.
It is well-settled that the insistence on a non-mandatory or permissive subject of
bargaining is unlawful and an indicia of bad faith bargaining. Fallbrook Hospital, supra at 11;
Universal Fuel Inc., 358 NLRB No. 150 at 1 and ALJD slip op at 20 (2012); ServiceNet Inc., 340
NLRB 1245, 1246-1247 (2003); Quality House of Graphics, 336 NLRB 497, 507-509 (2001);
Grosvenor Orlando Associates, 336 NLRB 613, 615 (2001); Tennessee Construction Co., 308
NLRB 763 (1992); Pleasantville Nursing Home, 335 NLRB 961-963 (2001); Briarcliff Pavilion,
260 NLRB 1374, 1377 (1982).
Here, Respondent's insistence that it would not bargain economic issues until the Union
stops the demonstrations and boycotts by third parties (NYCC and Occupy Kensington) is
unlawful and indicative of bad faith bargaining, as set forth in the above cited precedent.
While Respondent may have believed that the Union was involved in or responsible for
the boycotts and demonstrations, the evidence does not so establish, and I have credited
Caffey that the Union was not involved in nor supported the demonstrations or the boycott and
that, in fact, had attempted to persuade NYCC to stop this conduct when the Union became
certified was initially unsuccessful in persuading it to do so. Eventually, in March, after the
repeated refusals of Respondent to negotiate on economic issues was reaffirmed by Kim
himself at his brief appearance at the only session that he attended, Caffey was able to
persuade NYCC and Occupy Kensington to suspend its demonstrations and boycott activities,
which ceased at that time.
Respondent did adduce some evidence in this proceeding that some of the
demonstrations were from NYCC wearing union buttons from time to time and that one
employee of Respondent gave Kim a union authorization card, which the employee allegedly
told Kim was given to him by an individual at the demonstration. This evidence hardly suffices to
establish union involvement in or responsibility for the third parties’ conduct.
Indeed, Respondent asserted during the representation case that there was a
relationship between NYCC and the Union by claiming that Sanchez, a NYCC representative,
was an agent of the Union and made objectionable comments. However, the hearing officer
concluded that Respondent had not established that Sanchez was an agent of the Union and
the Union was not responsible for his conduct. Thus, his statements to employees must be
judged under third party standards for evaluating objectionable conduct. In this regard, the
hearing officer concluded that Sanchez’s statements to employees with respect to possible
monetary rewards related to the participation of employees in the lawsuit against Respondent,
then in process, rather than for supporting the Union. I note that Respondent filed no exceptions
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to the hearing officer’s report and these findings were adopted by the Board when it issued its
certification.
Further, this conduct of Respondent, failing and refusing to discuss economic issues
until the boycott stopped, unreasonably delayed bargaining and is an indication of Respondent's
bad faith bargaining, whether or not the stopping the boycott and demonstrations was a non-
mandatory subject or not. The fact is that Respondent delayed discussing economic issues for
over six months and engaged in rather limited discussions of economic issues even after the
boycott and demonstrations ended. Such conduct is reflective of bad faith bargaining. Health
Care Service Group, 331 NLRB 333, 336 (2008) (failure to make proposals for 6 ½ months
indicative of bad faith); Erie Brush Mfg., 357 NLRB No. 46 at 2, ALJD slip op at 11 (2011)
(employer refused to discuss economics until union changed its position); Bryant & Stratton
Business Institute, 321 NLRB 1007, 1041-1043 (1996) (respondent submitted its proposals five
months after union submitted its proposal); Hyrdotherm Inc., 302 NLRB 990, 1005 (1991) (no
economic proposals for over three months, despite union having made several over two
bargaining sessions); United Technologies, 296 NLRB 571, 572 (1989) (employer made no
counterproposals to the union for 7 months, and no economic proposals at all after 1 year of
bargaining); Southside Electric Cooperative, 243 NLRB 390, 397 (1979); Inter-Polymer
Industries, 196 NLRB 729, 761 (1972) (15 weeks and 7 meetings before employer submitted
any economic proposal).
Respondent's bad faith was further demonstrated by its position in bargaining, as stated
by its representative, that it would not agree to the Union’s proposal for a recognition clause,
providing that it recognize the Union as the exclusive collective bargaining representative of its
employees because Kim had a problem with recognizing the Union as the exclusive bargaining
representative of its employees. While the Union simply responded that Respondent would have
to so recognize the Union in view of the certification, and Respondent eventually agreed to the
Union’s recognition clause as submitted consistent with the certification, this initial position is
symptomatic of its bargaining posture throughout and its refusal to accept the results of the
election and the obligation to recognize and bargain with the Union, pursuant to that
certification.
Initially, Respondent refused to accept the Union’s shop steward clause and insisted on
the right to select the Union’s steward. This is a clear interference with the Union’s internal
affairs and is also indicative of bad faith bargaining. While subsequently Respondent backed off
from this counterproposal and agreed that the Union could select the shop steward to represent
the employees, Respondent's position on this issue obstructed bargaining. It’s bargaining
continued to reflect its rejection of the Union’s role as the representative of its employees by
initially refusing to deal with the union representative in the processing of the grievances under
the grievance procedure and insisting on dealing with the shop steward only with respect to
these matters. While this position was again eventually dropped by Respondent and it agreed to
meet with the union representative during the grievance process, its initial position on this issue
was reflective of bad faith bargaining and obstructed the bargaining process. Indeed, even
though Respondent finally agreed to meet with the union representative during the grievance
procedure, pursuant to the arbitration and grievance procedure clauses tentatively agreed to by
the parties, the issue of whether the Union would be able to meet with the Respondent on the
Respondent's premises was still not resolved inasmuch as Respondent had still refused to
agree to the Union’s access proposal.
Thus, the tentative agreement by Respondent on the grievance and arbitration clauses
is somewhat illusory inasmuch as the union representative cannot meet with Respondent on the
Respondent’s premises during the grievance procedure.
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This continuing refusal of Respondent to accept the Union’s role as the representative of
its employees is further manifested by its obdurate refusal to agree to or bargain about the
Union’s access proposal. In that regard, the Union proposed that the Union be permitted access
to the store as long as the visit does not disrupt the regular business operations. Respondent
rejected this proposal and continued to do so throughout negotiations by stating that
Respondent did not want a union representative or any type of agent at the facility. Kim
explained this position by asserting that Respondent believed that the Union was responsible for
the boycott and demonstrations, which had caused disruptions in the store. However, as noted
above, the Union was not involved in or responsible for these demonstrations and boycotts and,
more importantly, these activities had ceased at the behest of the Union in March. Yet,
Respondent persisted in refusing to permit access to its store by union officials at any time for
any purpose.
While access to its premise by union officials is a mandatory subject of bargaining and
need not be agreed to, Respondent does not satisfy its obligation to bargain about that subject
by simply rejecting the Union’s requested proposal with a blanket refusal to allow the Union
access to its premises at any time for any purpose. C.C.E. Inc., 318 NLRB 977, 978 (1995)
(denial of access to union representative, especially in first contract negotiations, prevents union
from gaining complete understanding of its operations and prevents employees from gaining the
representation that they voted for in the certification election); Holyoke Water Power, 273 NLRB
1369, 1370 (1985) (property right of employer must be balanced against union’s right to
access). Here, Respondent’s store is open to the public, and no evidence was presented that
permitting access to union representatives would or could interfere with Respondent’s business.
Indeed, the Union’s proposal that the Respondent rejected allowed access as long as it does
not disrupt business operations, which would alleviate any justifiable concerns about union
representatives’ presence inside the store. I, therefore, conclude that Respondent's unyielding
posture of refusing access of any union representative to its store, without any
counterproposals, is a further indicia of bad faith bargaining and a continuation of its refusal to
accept the results of the certification and the recognition that the Union is the exclusive
bargaining representative of its employees.
I also agree with General Counsel that Respondent’s bargaining over union security was
reflective of bad faith bargaining inasmuch as its continuing opposition to these proposals was
without legitimate business justification and indicative of a closed mind. The Board, support by
the Courts, has made such findings in numerous cases. Universal Fuel, supra, 358 NLRB No.
150 at 1, ALJD slip op at 1; Chester County Hospital, 320 NLRB 604, 622 (1995), enfd. 116
F.3d 469 (3rd Cir. 1997); Langston Companies, 304 NLRB 1022, 1058, 1061 (1991); CJC
Holdings, 320 NLRB 1041, 1047 (1996), enfd. 110 F.3d 794 (5th Cir. 1997); Sivalls Inc., 307
NLRB 986, 1009, fn. 46 (1992); A-1 King Size Sandwiches, 265 NLRB 850, 854-860 (1982),
enfd. 732 F.2d. 872, 876-877 (11th Cir. 1984); Rockingham Machine-Lunex Company, 255
NLRB 89, 107 (1981); Hospitality Motor Inn, 249 NLRB 1036, 1040 (1980); Preterm Inc., 240
NLRB 654, 673 (1979); Betra Mfg. Co., 233 NLRB 1126, 1133 (1977); Queen Mary
Restaurants, 219 NLRB 776, 795, 796 (1975), enfd. 560 F.2d 403, 409 (9th Cir. 1977); Carolina
Paper Board, 183 NLRB 544, 550-551 (1970); Kayser-Roth Hosiery, 176 NLRB 999, 1004
(1969), enfd. 430 F.2d 701 (6th Cir. 1970); Sweeney & Co. Inc., 176 NLRB 208, 211 (1969),
enfd. 437 F.2d 1127, 1134-1135 (5th Cir. 1971); Roanoke Iron Works, 160 NLRB 175, 181
(1996), enfd. 390 F.2d 846, 849 (DC Cir. 1967).
The most compelling evidence of Respondent’s bad faith bargaining is demonstrated by
its conduct concerning its last offer, which it conveyed to the Union during the August 23
conference call.
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It is significant to note that this August 23 meeting was less than a month from the end of
the certification year, which expired on September 20. As of that date, Respondent had still not
submitted any offer of wages and had made limited counteroffers on a few economic issues,
such as vacation, sick leave and holidays, but no tentative agreements had been reached on
these issues.
The Union had been pressing for a wage increase and, in fact, had bargained against
itself by lowering its demands to a fifty cents an hour increase for a one-year contract or a $1.00
per hour increase in a three-year contract with forty cents for the first year.
During the course of this session, which was conducted by conference all, there was a
caucus. When the call resumed, Caffey from the Union had been called away, but LaRuffa
continued to represent the Union. At that time, Coleman stated that it had an offer to convey but
added that he and Mieluchowski had not discussed it with Kim and had yet received Kim’s ok,
but if the Union agreed, it would go back to get Kim’s approval and that he felt with their strong
support and urging that Kim would agree to the proposal. The proposal was for a contract
lasting until December 31 with a raise of fifty cents an hour immediately for employees and that
the Union must agree to prevent any third parties from engaging in picketing or boycotting the
store. Coleman added that the Union had a deadline of 11:59 p.m. on Monday, August 26 to
accept the offer. Coleman did not explain the reason for this deadline.25
LaRuffa replied that they would present the offer to the Union (since Caffey was not
there by that time) but asked Respondent to send the offer in writing. At 1:54 p.m. that day,
LaRuffa sent an email to Respondent, stating “subject to the Union’s review of the Company’s
tentative proposal which you will be sending, the Union is suggesting to meet either in person or
via conference call on either 8/28, 8/30 or 9/6. Please advise asap.”
Respondent never sent the proposal in writing as requested by LaRuffa, and instead
Mieluchowski sent an email on August 24, reiterating that their offer is on the table only until
11:59 p.m. on August 26, and Respondent believed that the Union rejected the offer by
LaRuffa’s request for more meetings. Thus, Respondent would not send a written offer and
added that unless the last offer is agreed to, there appears little point in further meetings.
LaRuffa responded that he wanted the proposal in writing as promised and added that
he had not declined or accepted the offer but wanted the offer in writing so that the Union could
review it.
Respondent responded by repeating its assertion made in the prior email that since
LaRuffa had asked for additional negotiation dates in his initial response, the Union was
rejecting Respondent’s offer and that the deadline for acceptance had passed.
I find Respondent's conduct, as detailed above, to be filled with several indicia of bad
faith bargaining. Initially, I note that Respondent in presenting its last and ultimately its final
offer, Respondent stated that the offer, which was Respondent’s first and only wage increase
offer, was subject to the approval of Kim. While its negotiators had previously entered into
tentative agreements on several proposals, mostly non-economic in nature, in this instance for
the first time, its negotiators stated that it needed to get Kim’s approval for the offer and had as

25 At trial, Mieluchowski testified that the reason that Respondent imposed the deadline was
because Coleman was due to be on vacation from August 27 through mid-September.
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of yet, not done so.
It is well-settled that the duty to bargain includes the obligation to appoint a negotiator to
carry on meaningful bargaining regarding fundamental issues. Wycoff Steel, 303 NLRB 517,
525 (1991); Natural Amusements Inc., 155 NLRB 1200, 1206 (1965). Although an employer is
not required to be represented by an individual possessing final authority to enter into an
agreement, this is subject to a limitation that it does not inhibit the progress of negotiations.
United Brotherhood of Carpenters, Local 1780, 244 NLRB 277, 281 (1979). See also J.P.
Stevens & Co., Inc., 239 NLRB 738, 768 (1978).
Here, the importance of Respondent’s last, and indeed only, wage offer cannot be
overstated as a wage increase was indisputably an important issue for the Union. In fact, as
noted above, the Union had bargained against itself by lowering its wage increase demands
from its previous offer without a counter from Respondent. Thus, when Respondent finally
conveyed its first and only offer on this subject, it did so with the caveat that it had not received
approval of Kim, Respondent’s principal. Particularly, where, as here, Respondent made this
offer with an arbitrary deadline for acceptance of two days from the offer to make it without the
approval of Kim and to inform the Union of the same is, in my judgment, a hindrance to the
overall negotiations and indicative of bad faith. J.P. Stevens, supra; Wycoff, supra; Local 1780
Carpenters, supra.
As also noted, the offer was subject to a deadline of August 26, giving the Union three
days to accept the offer.26
Respondent did not furnish the Union any reason for this arbitrary deadline for
acceptance of the offer. The setting of arbitrary deadlines for acceptance of offers has been
deemed by the Board to be indicative of bad faith by an employer. Here, I conclude that
Respondent furnished no reason for its arbitrary deadline of August 26 to accept its offer. Its
post hoc explanation by Mieluchowski’s testimony that it did so because Coleman would be on
vacation from August 27 through September 15, hardly suffices as an adequate reason for the
deadline. It only serves to reinforce the conclusion that I draw that it was motivated by the
impending end of the certification year (September 20), and Respondent's desire to insure that
negotiations break down by that time. While Respondent never declared actually impasse in
bargaining, it, in effect, did by refusing to meet with the Union since the Union had not accepted
Respondent’s last offer and stating that in view of that refusal, it saw no need for any further
meetings.
I, therefore, conclude that Respondent's arbitrary deadline for acceptance of its last offer
was destructive of the bargaining process and is further evidence of its bad faith bargaining.
Whitesell Corp., 352 NLRB 1196, 1197 (2008); Newcor Bay City Division, 345 NLRB, 1229,
1241 (2005) (artificial deadline for acceptance of offer coinciding with contract’s expiration); Ead
Motors, 346 NLRB 1060, 1064 (2006) (artificial deadline truncated negotiations).
Further, Respondent’s last offer provided for an expiration date of December 31,
essentially a contract of four months duration. A contract of unreasonably short duration without
adequate explanation has long been considered significant evidence of bad faith bargaining.
Cleveland Sales Co., 292 NLRB 1151, 1155-1156 (1989) (offer of 3 months and 8 days
duration); Briarcliff Pavilion, supra, 260 NLRB at 1377 (4 ½ month contract, linked closely to end
of certification year); Deister Concentrator, 253 NLRB 358 (1980) (3 ½ months); Insulating

26 Notably, two weekend days including Saturday and Sunday.
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Fabricators, 144 NLRB 1325, 1329-1330 (1963) (6 months); Huck Mfg. Co., 254 NLRB 739, 755
(1981) (2-month contract corresponding to end of certification year); Holmes Tuttle, 186 NLRB
73, 82-83 (1970) (2-week contract to expire at end of certification year).
Here, Respondent provided no explanation for its insistence on a contract of four months
duration. Indeed, none is apparent other than the obvious proximity to the expiration of the
certification year. Briarcliff, supra.
This proposal by Respondent provides substantial evidence of bad faith bargaining by
Respondent in these circumstances.
This conclusion is fortified by the fact that Respondent’s offer was a regressive proposal
by Respondent, inasmuch as it had previously offered a contract of one year’s duration shorter,
although the Union was still seeking a three-year contract.
While regressive proposals are not automatically evidence of bad faith bargaining when
they are interposed without any or unreasonable explanation, they can be evidence of bad faith.
Clarke Mfg. Co., 352 NLRB 141, 145 (2008); Mid-Continent Concrete, 336 NLRB 258, 260
(2001).
Thus, Respondent’s regressive proposal of reducing the duration of the contract from
one year to four months without any explanation leads to the conclusion that I draw that it was
interposed in bad faith and further evidence of its engaging in surface bargaining.
I also rely upon Respondent’s refusal to supply a written copy of its last offer as
promised. As related above, Caffey was not present when, after the caucus ended, Respondent
conveyed its offer. LaRuffa asked that it be sent in writing so he could present it to Caffey.
Respondent agreed to do so but did not, even after LaRuffa renewed the Union’s request. I find
this conduct by Respondent inexcusable and further demonstrative of Respondent's bad faith.
This was indeed Respondent's first and only wage offer, and it also involved various other
conditions, such as a four-month duration and the Union’s agreement to prevent third-party
picketing or boycotts.
The record is somewhat uncertain as to whether the offer included Respondent’s
previous counteroffers on such issues as vacations, holidays and sick days, and indeed,
Respondent’s cross-examination sought to establish that these offers had not been withdrawn
prior to the conveyance of the last offer. Thus, it was important to send that offer to the Union in
writing, so that there could be no dispute as to what was included, particularly where
Respondent had added a deadline of three days to accept the offer.
I conclude that Respondent was determined to cut off negotiations and end bargaining
prior to the end of the certification year, which it did, in anticipation of a decertification petition
and wanted to make sure that the Union would not accept its offer. Thus, this accounts for the
roadblocks that it set up for its acceptance, such as the arbitrary deadline for acceptance of its
offer and the refusal to put the offer in writing. South Carolina Baptist Ministries, 310 NLRB 156
(1993) (refusal to put in writing proposals found to be evidence of bad faith and impeding
bargaining process).
I also note Respondent’s inclusion of the non-mandatory subject of bargaining (Union
must agree to prevent third-party picketing and boycotts) in its last offer. It is significant that
Respondent had previously taken the position early in bargaining, as I detailed above, that it
would not discuss economic issues until the demonstrations and boycotts by the third parties
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ceased. I concluded above that conduct was reflective of bad faith bargaining, a conclusion
which I do not change, but note that after the boycott ended, Respondent commenced
discussing economic issues, and ultimately made a wage offer on August 28. However, in the
same offer, Respondent renewed its previously withdrawn unlawful demand of its offer by
demanding that the Union agree to prevent any third party from picketing or boycotting
Respondent. Such conduct is further reflective of bad faith and makes its final offer “predictably
unacceptable” to acceptance since the Union cannot agree to prevent any third party from
boycotting or picketing the Respondent.
Finally, I note that the Board also considered conduct both away from the table and the
table in examining an employer’s conduct of a real desire to reach agreement. South Carolina
Baptist, supra; Overnite Transportation, 296 NLRB 669, 671 (1989); Mid-Continent Concrete,
supra, 336 NLRB at 261; U.S. Ecology Corp., 331 NLRB 223, 224 (2000).
Here, I found above that Respondent violated Section 8(a)(1) of the Act by virtue of
numerous statements of its agent, Steve Chun. These comments included statements that
Respondent would never sign a contract as well as threats to discharge union supporters.
These kinds of statements are reflective of and evidence of Respondent’s bad faith and its
intention not to reach agreement with the Union. South Carolina Baptist, supra; Overnite
Transportation, supra (telling employees that employer would not sign contract and threatened
with job loss); Mid-Continent Concrete, supra (statements that bargaining would be futile); U.S.
Ecology, supra (statement that there would be no contract regardless of what the union did).
Even more significantly, I rely on Steve Chun’s statements made to the union
representatives in late August and in September, some of which were heard by employees,
such as Gonzalez. On these occasions, after the Union began its picketing, after Respondent
cut off negotiations, as I have detailed above, and utilized a rat in front of the store, plus the
presence of two union representatives.
Chun came outside the store and made similar comments to Diaz, such as Kim wasn’t
going to sign a union contract and they (the Union) was wasting their time. Chun, in later
conversations, began to taunt the union representatives by telling them that there “were only 10
days left for your union,” and repeated that no contract is going to be signed. Chun then
continued similar comments over the next few days, such as “you’ve got three more days left for
your contract year to be over,” and that the Union was out of here in a day or two,” and then
adding that Gonzalez (the main union advocate) would be fired once the union is out of here.”
These comments made by Chun in September, shortly before the certification year was
to expire, is highly probative of Respondent’s bad faith bargaining and its conduct at the
bargaining table.
These comments clearly are indicative of Respondent’s intention to draw out the
negotiations until the certification year had passed. Mid-Continent Concrete, supra at 258; U.S.
Ecology, supra; Overnite Transportation, supra. See also Burrows Paper, 332 NLRB 82 (2000)
(statements to union representative about another vote and questioning why anyone would want
to be a union member after certification year ended).
Accordingly, I conclude based on the totality of Respondent’s conduct, both at and away
from the table, as detailed above, that it has bargained in bad faith with the Union and its
conduct did not evidence a sincere desire to enter into an agreement with the Union.
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It has, therefore, engaged in surface bargaining in violation of Section 8(a)(1) and (5) of
the Act. Fallbrook Hospital, supra; Universal Fuel, supra; Health Care Service, supra; Chester
County Hospital, supra; Whitesell Corp., supra; Cleveland Sales, supra; Holmes Tuttle, supra;
Mid-Continent Concrete, supra; South Carolina Baptist, supra; Overnite Transportation, supra.
D. The Alleged Refusal to Meet
The complaint alleges that on or about August 27 Respondent refused the Union’s
request to meet and bargain with the Union. I agree.
This conduct continued until, and, of course, after its withdrawals of recognition from the
Union in October and June.
Respondent disputed that it had refused to meet and bargain with the Union on or after
August 27 and argues that the Union had not requested any further meetings after allegedly
“rejecting” Respondent's offer and instead chose to file a charge with the Board and engage in
picketing of Respondent.
I cannot agree. The Union had, in fact, requested that negotiations continue and offered
several negotiation dates for additional sessions, either in-person or by teleconference.
Respondent rejected the Union’s request for further meetings by Mieluchowski’s email to
LaRuffa, wherein he stated that Respondent viewed the Union as having rejected Respondent's
offer by not accepting it within the timeframe required, and, therefore, Respondent saw no need
for further meetings.
While the email asserted that Coleman, Respondent's attorney, was not available on the
dates proposed by LaRuffa because of Coleman’s vacation, that did not preclude meeting on
other dates, and it was incumbent on Respondent to propose additional dates when Coleman
would be available. It is, of course, notable and not without significance that all of the dates
requested by the Union were within the certification year.
This is further supportive of my conclusion, set forth above, that Respondent's
bargaining was not in good faith and motivated by a desire to run out the string and that a
decertification petition could and would be filed, which coincidentally happened, as detailed
above and below, in late September when the employees signed a petition seeking to get rid of
the Union, which petition was given to Respondent.
I find that Respondent independently violated Section 8(a)(1) and (5) of the Act from on
August 27, and of course, including the period after it withdrew recognition in October and
November.
At no time during these periods did Respondent agree to the Union’s request to meet
and bargain, and its failure to do so is violative of the Act, apart from the validity of the petition
and the withdrawal of recognition. For the period between August 27 and October, the Union
was still the certified bargaining representative of Respondent's employees, and it refused to
meet and bargain with the Union, even though it had not received any petition from the
employees or had any evidence that the Union had lost its majority status.
I conclude, therefore, that Respondent violated Section 8(a)(1) and (5) of the Act by this
conduct.
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E. The Withdraw of Recognition and the Petition
There is no dispute that Respondent withdrew recognition from the Union in October and
again in November based upon a petition signed by a number of its employees, which
Respondent received sometime in October.
General Counsel contends the Respondent's withdrawals of recognition from the Union
was violative of 8(a)(1) and (5) of the Act and has made several alternative arguments in
support of its position. I shall consider and decide all of these contentions and arguments in
view of the possibility of reversal by the Board on General Counsel’s primary argument that the
withdrawal of recognition by Respondent is unlawful.
Respondent may not lawfully withdraw from the union unless it can establish that the
Union has, in fact, lost the majority support of its employees in the bargaining unit. Levitz
Furniture Co. of the Pacific, 333 NLRB 717, 724-725 (2001).
However, even if an employer establishes that a union has lost its majority support, it
cannot withdraw recognition, where the employer is engaged in unremedied, unlawful conduct
that tainted the filing of any petition, establishing loss of majority support or, indeed, any other
evidence that proves that the union no longer enjoys the support of the unit employees. Erie
Brush Mfg., 357 NLRB No. 46 slip op at 2-4, ALJ slip op at 11-12 (2011); Lee Lumber, 322
NLRB 175 (1996), affd. in part and remanded in part, 117 F.3d 1454 (DC Cir. 1997).
The surface bargaining finding that I have made, as detailed above, is sufficient in itself
to taint the petitions and to render Respondent's withdrawal of recognition unlawful, even if
Respondent had no involvement in the petitions. Radisson Plaza, 307 NLRB 94, 96, 115 (1992);
Prentice-Hall, Inc., 290 NLRB 646-647, 673 (1988).
I so find here, and rely additionally on my findings above, that Respondent refused to
meet with the Union on and after August 28 at a time when the certification year had not yet
expired, even though the petition had not been signed or shown to Respondent. I also note the
testimony of Mieluchowski, Respondent's negotiator, who asserted that Kim did not want to
agree to a union security clause because, in part, of the closeness of the election (Union won by
one vote). Thus, Respondent reflected that it was counting on the chance that the slim majority
by which the Union won the election and the passage of the certification year without any real
prospect of a contract would culminate in a sufficient expression of employee dissatisfaction
with the Union to permit Respondent to do what it finally did and withdraw recognition from the
Union. Prentice-Hall, supra, 290 NLRB at 646.
As noted above, General Counsel has advanced various alternative arguments in
contending that the withdrawal of recognition was unlawful, which need to be considered,
particularly, in the event that a higher authority disagrees with my surface bargaining and refusal
to meet findings, detailed above.
General Counsel contends initially that Respondent had not met its burden of
establishing that the Union has lost its majority status. HQM of Bayside, 348 NLRB 758, 759
(2006).
In this regard, the first petition contained 26 signatures. Respondent’s purported list of
bargaining employees contained 32 names. Four of the signatures were dated August 28,
including the signatures of Cuautle. The other three signatures dated August 28 were that of
Marcos Gomez, Jose Perez and Rolando Yomez. Cuautle testified, as related above, that the
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dates on these documents were incorrect and were misdated and should have been September
28, instead of August 28. Cuautle testified credibly that his signature was placed first on the
petition and he misdated it August 28, instead of September 28. Then, when the other three
employees signed the petition, they followed along and put in the same misdate of August 28
that Cuautle had filled in next to his signature. I find Cuautle’s testimony credible and believable
and consistent with the testimony of all the other witnesses, such as Garcia, Jimmy, Bong and
Kim, that the petitions were circulated in late September and early October. I, therefore,
conclude that these signatures are valid and were, in fact, signed on September 28 and that
they can be counted as having demonstrated a desire not to be represented by the Union.
General Counsel also asserts that the signatures of Joon Chal Lee and Noh Soon Park
cannot be counted since Respondent has not established that either one was employed by
Respondent in the bargaining unit. General Counsel relies on the fact that the wage statements
provided for General Counsel in response to its subpoena that wage statements were not
included for these employees. Kim testified that both of the employees were employed by
Respondent, Lee as a buyer and Park as a night-time cashier, at the time of the petition and
were still employed by Respondent at the time of the trial. He speculated that his wife Sharon,
who had prepared the documents to be submitted to General Counsel pursuant to the
subpoena, must have overlooked the wage statements for these employees. I find Kim’s
testimony credible, particularly since it is implicitly corroborated by Jimmy, who testified that he
solicited the signatures of Park and Lee, who were both employees of Respondent working at
night on the evening of October 1, 2013.27
Accordingly, I conclude that they were both employed by Respondent at the time that
they signed the petitions. However, Lee was and is a buyer, and according to the certification, a
buyer28 is specifically excluded from the unit.
Therefore, the signature of Lee should be not counted as demonstrative of loss of
majority support since that employee was not in the unit. Thus, the number of employees in the
unit should be reduced from 32 to 31, and the number of signatures reduced from 26 to 25.
General Counsel also notes that Steven Chun’s name was not on the list, and he did not
sign the petitions. Some testimony was adduced that Steve was out sick or not at work when
the petitions were signed in September and October and that when the second petitions were
signed in late October and early November, it was decided not to ask Steve to sign since he had
not signed the first one.
The fact is, whether Chun was out sick or not, he was still in the unit at the time of the
petitions and was part of the unit. He was an employee of Respondent, and although I have
found that he was an agent of Respondent, he was not a supervisor and was part of the
bargaining unit.
Therefore, his name should have been included on the list of unit employees, which
bring the unit back up to 32, with 26 signatures. General Counsel asserts that two signatures
are duplicates but does not identify them. Assuming that there are two duplicates, the majority
of unit employees have still been proven to have signed the petitions. I, therefore, reject General
Counsel’s assertion that Respondent has not established that a majority of unit employees
wished not to be represented by the Union.

27 Both Park and Lee also signed the second petition on October 30.
28 Based on Kim’s own testimony and Respondent’s schedule.
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General Counsel also argues that the petitions are invalid and cannot be used to support
the withdrawal of recognition because Respondent has violated the Act by rendering more than
ministerial aid to the petitions. Armored Transport Inc., 339 NLRB 374, 377 (2003).
General Counsel relies on speculation and the inconsistencies in testimony of Bong and
Kim as to the circumstances of the petition submissions to Kim and to Respondent's attorney.
General Counsel argues that Kim had a business relationship with Bong since they were both
members of the Korean Business organization and, therefore, they must have discussed the
petitions before they were signed and sent to Respondent’s counsel and that Kim must have
directed Bong to prepare and circulate the petition.
I agree with General Counsel that there are significant inconsistencies between the
testimony of Kim and Bong about various matters, including who placed the number of
employees to the names on the list that Respondent’s sent to Respondent’s attorney. I also
agree that the record establishes that Bong and Kim spoke about the petitions before they were
prepared and circulated and that Kim was the one (contrary to Bong’s testimony), who placed
the numbers on the list next to the names submitted to the attorney, based on the list of
employees prepared by Kim himself. Indeed, Kim admitted that he discussed the petitions with
Bong before they were circulated and that Bong informed Kim that he was preparing to circulate
a petition along with his son, Jimmy, to get rid of and to decertify the Union. Kim further testified
that he responded that it was up to Bong and Jimmy to do it or not.
I find that testimony credible and cannot conclude, as General Counsel apparently
contends, that Kim directed or even encouraged Bong to engage in the decertification effort and
circulate the petitions.
I also conclude, based on the overall evidence, including, particularly, the email sent by
Bong to Mieluchowski, in forwarding the October petition to him, that it was Kim, who had
written in the numbers corresponding to the employees, who signed based on Kim’s preparation
of the list of Respondent’s employees and his comparison of the signatures. I find, therefore,
that this information was sent by Bong to Mieluchowski after Kim prepared the list and inserted
that corresponding numbers next to the signatures.
Nonetheless, I do not believe that this evidence establishes that Respondent provided
more than ministerial assistance to the petitioners.
The evidence does not establish that Kim directed or encouraged the petitions’
circulation. He merely told Bong, when Bong informed him of the intentions of his son and
himself to circulate a petition to decertify to get rid of the Union, that it was up to Bong and
Jimmy to do it or not.
Thus, while Kim discussed circulation of a decertification petition to get rid of the Union
with Bong before it was prepared and circulated, Kim did not solicit or encourage Bong to
engage in that conduct. Kim merely told Bong that it was up to Bong and Jimmy to do it or not.
In short, Kim was informed that the employees intended to circulate the petition and that
Kim’s conduct was telling Bong that he could do it or not. While Kim, after the petition was
circulated and signed by employees and shown to him, made a list of unit employees,
calculated the number of employees, who signed and placed numbers on the petition,
corresponding to the list and furnished the email of Respondent’s consultant to Bong, so that
Bong could send the petition to him, this conduct cannot be construed as coercing or interfering
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with the petition since it occurred after it was signed by the employees.
Thus, Respondent’s conduct was limited to aiding the employees in their expression of
their predetermined objectives. Eastern States Optical, 275 NLRB 371 (1985) (employees
attorney’s conduct in assisting employees with wording of decertification petition, telling him to
contact the NLRB about it and subsequent providing information to employees about
information necessary to process Board’s forms, such as employee unit, names of employer’s
officials and whether number of signatures obtained were sufficient, found insufficient to
constitute more than ministerial assistance to petition since employer did nothing to encourage
petition, contacted was initiated by employee and employer did little more than render editorial
suggestions and supply factual information); Poly Ultra Plastics, 231 NLRB 787, 790 (1977)
(involvement of supervisor in preparation of language for petition to be sent to NLRB); KONO-
TV-Mission Telecasting, 163 NLRB 1005, 1006 (1967) (employee asked employer how to get
rid of union and was told to contact NLRB and suggested language to use in letter to NLRB,
held conduct of employer insufficient to establish that “petition filed did not constitute free and
uncoerced act of employees concerned”).
I, therefore, reject General Counsel’s alternative contentions with regard to
Respondent’s involvement in the petition and do not find that Respondent rendered anything
more than ministerial assistance to the employees in their desire to end union representation.
However, as I have detailed above, Respondent’s surface bargaining and refusals to
meet and bargain with the Union, prior to the petitions being signed and sent to Respondent,
taints the petitions, and Respondent cannot rely on them to withdraw recognition from the
Union.
Accordingly, I conclude that Respondent violated Section 8(a)(1) and (5) of the Act by
withdrawing recognition in October and November.
Conclusions of Law
1. Golden Farm Brooklyn, Inc. d/b/a Golden Farm Grocery is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. Local 338, Retail, Wholesale and Department Store Union, United Food and
Commercial Workers is a labor organization within the meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been the certified exclusive collective
bargaining representative for the Respondent’s employees in the following appropriate unit:
All regular and full-time employees, including cashiers, clerks, stock persons,
drivers and general merchandise handlers, employed by Respondent, at its
Brooklyn, NY facility, excluding managers, buyers, office clerical employees,
guards and supervisors as defined in the Act.
4. By threatening its employees with termination, with futility of their support for the
Union as Respondent would never sign a contract with the Union and directing employees not
to speak to union representatives or to employees, who support the Union, Respondent has
violated Section 8(a)(1) of the Act.
5. By refusing to meet and bargain with the Union, by engaging in surface and bad faith
bargaining with the Union and by withdrawing recognition from the Union, Respondent has
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violated Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that Respondent meet and bargain in good faith with the Union, and if
an understanding is reached, embody it in a signed agreement.
Inasmuch as I have found that Respondent has bargained in bad faith with the Union
from the inception of bargaining as well as a refusal to meet with the Union for a period of time,
even before the petition was submitted to it, I shall recommend that the certification year be
extended by one year from the date that good faith bargaining begins. Fallbrook Hospital, supra,
360 NLRB No. 73 slip op at 2; Regency Service Carts, 345 NLRB 671, 727 (2005); Mar-Jac
Poultry, 136 NLRB 785 (1962).
General Counsel also requests that Respondent be required to meet with the Union
within 15 days of a Board Order and for a minimum of 24 hours until an agreement is reached or
lawful impasse reached. I find such a remedy is not necessary and that the standard order
requiring Respondent to meet and bargain is sufficient to remedy the unfair labor practice that I
have found. I note that Respondent did meet with the Union regularly either in-person or by
conference call and bargained over a period between November 28, 2012 and August 28, 2013.
Although Respondent did, as I have concluded, refuse to meet on and after August 28 with the
Union, even though the Union had requested additional meetings, this refusal was not for an
extended time and it continued only because Respondent withdrew recognition from the Union
based on the petition that it received in early October from its employees. While I have found
Respondent's withdrawing of recognition and, of course, its continuing refusal to meet to be
unlawful, in view of my surface bargaining findings that tainted the petition, Respondent had not
otherwise dragged its feet in scheduling sessions or cancelling sessions and the primary vice in
Respondent's conduct lies not in the difficulty of getting Respondent to the bargaining table but
what it did when it got there. Universal Fuel Inc., 358 NLRB No. 150 slip op at 2 (reversing ALJ’s
decision to order scheduling remedy requested by General Counsel). See also Myers
Investigative & Security Services, 354 NLRB 367 (2009).
General Counsel also requests that the notice to employees be read to employees
during working hours by Sonny Kim in English, Spanish and Korean. I find such an enhanced
remedy not to be warranted as this case does not contain pervasive and outrageous unfair labor
practices committed by members of high-level management officials. Fallbrook Hospital, supra,
360 NLRB No. 73, ALJD slip op at 15. Cf. Federated Logistics & Operations, 340 NLRB 255,
256-258 (2003) and Homer D. Bronson & Co., 349 NLRB 512, 515 (2007), where such
remedies were found appropriate.
On these findings of fact and conclusions of law and based on the entire record, I issue
the following recommended.29

29 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Continued
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ORDER
The Respondent, Golden Farm Brooklyn d/b/a Golden Farm Grocery, Brooklyn, New
York, its officers, agents, successors and assigns shall
1. Cease and desist from
(a) Failing and refusing to meet with and bargain in good faith with the Union, Local 338,
Retail, Wholesale and Department Store Union, United Food and Commercial Workers, as the
exclusive collective bargaining representative of the employees in the bargaining unit.
(b) Withdrawing recognition from the Union as the exclusive collective bargaining
representative of its employees in the bargaining unit.
(c) Threatening its employees with termination with the futility of their support for the
Union and ordering or directing its employees to cease speaking with union representatives or
with other employees, who are supporters of the Union.
(d) Engaging in surface or bad faith bargaining with the Union as the certified exclusive
representative of employees in the appropriate unit.
(e) In any like to related manner, interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, meet and bargain in good faith with the Union as the exclusive collective
bargaining representative of the employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is reached, embody the understanding
in a signed agreement:
All regular and full-time employees, including cashiers, clerks, stock persons,
drivers and general merchandise handlers, employed by Respondent, at its
Brooklyn, NY facility, excluding managers, buyers, office clerical employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at its Brooklyn, New York facility
copies of the attached notice marked “Appendix.”30 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. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
_________________________
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
30 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily 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 covered
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 employees and former employees employed by the Respondent at any
time since August 27, 2013.
(c) Within 21 days after service by the Region, file with the Regional Director for Region
29 a sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the certification of the Union issued by the Board on
September 20, 2012 is extended for a period of one year commencing from the date on which
the Respondent enters into negotiations with the Union.
Dated, Washington, D.C., July 1, 2014.
____________________
Steven Fish,
Administrative Law Judge
JD(NY)–29–14
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 fail and refuse to meet with or bargain in good faith with the Local 338,
Retail, Wholesale and Department Store Union, United Food and Commercial Workers as the
exclusive collective bargaining representative of our employees in the bargaining unit.
WE WILL NOT threaten you with termination because of your support for the Union or
threaten you with futility because of your support for the Union by informing you that we will
never sign a contract with the Union or direct you not to speak with union representatives or with
employees, who support the Union.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce you in the
exercise of rights guaranteed you in the exercise of the rights listed above.
WE WILL, on request, meet and bargain with the Union as the exclusive collective
bargaining representative of our employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is reached, embody the understanding
in a signed agreement:
All regular and full-time employees, including cashiers, clerks, stock persons,
drivers and general merchandise handlers, employed by us, at our Brooklyn, NY
facility, excluding managers, buyers, office clerical employees, guards and
supervisors as defined in the Act.
Golden Farm Brooklyn Inc. d/b/a Golden Farm
Grocery
(Employer)
Dated By
(Representative) (Title)
JD(NY)–29–14
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two MetroTech Center, Jay Street and Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-112315 or by
using the QR code below. 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.
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.