Lawrence Bros

National Labor Relations Board - Administrative Judge Opinions

Feb 15, 2007

28-A-020824 (N.L.R.B. Feb. 15, 2007)

JD(SF)-05-07
Ruidoso, NM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MAL ENTERPRISES, INC.,
d/b/a LAWRENCE BROS.
and Cases 28-CA-20824
28-CA-21008
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 1564
Chris J. Doyle, Atty., Counsel for the General Counsel,
Region 28, Phoenix, Arizona.
Greg Frazier, Secretary-Treasurer, Charging Party,
Albuquerque, New Mexico.
Shane Youtz, Atty., Charging Party,
Albuquerque, New Mexico.
Fred B. Grubb, Grubb, Quist & Associates, LLC,
Representative of Respondent, Waterbury, VT.
DECISION
I. Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Ruidoso, New
Mexico on November 29 through December 1, and December 13 through 14, 20061 upon Order
Consolidating Cases, Consolidated Complaint and Notice of Hearing (the Complaint), issued
October 31 by the Regional Director of Region 28 of the National Labor Relations Board (the
Board) based upon charges filed by United Food and Commercial Workers Union, Local 1564,
AFL-CIO (the Union),2 alleging that MAL Enterprises, Inc., d/b/a Lawrence Brothers (the
Respondent) violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act).3 The Respondent essentially denied all allegations of unlawful conduct.

1 All dates herein are 2006 unless otherwise specified.
2 Hereinafter correctly designated United Food and Commercial Workers Union, Local 1564.
3 At the hearing, Counsel for the General Counsel twice amended the Complaint. The first
amendment added paragraph 6(f), alleging that Fred B. Grubb, representative of the
Respondent, was at relevant times an agent of the Respondent within the meaning of Section
2(13) of the Act and that Mr. Grubb unlawfully interrogated employees on November 7. The
second amendment added paragraph 8(g), alleging that in withdrawing its recognition of the
Union as the exclusive collective-bargaining representative of unit employees, the Respondent
relied upon a petition that was fraudulently procured. The Respondent stipulated that Mr. Grubb
was, at relevant times, an agent of the Respondent, but otherwise denied the amended
allegations.
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II. Issues
1. Did the Respondent engage in independent violations of Section 8(a)(1) of the Act by
threatening employees with the following: loss of vacation pay, withheld wage
increases, withheld transition to full-time status, written warnings, cessation of the
Union as employees’ collective-bargaining representative, and nonacquisition of new
equipment.
2. Did the Respondent engage in independent violations of Section 8(a)(1) by
promising to convert employees to full-time status if employees decertified the Union
and by interrogating employees?
3. Did the Respondent violate Section 8(a)(3) of the Act by the following conduct:
withholding wage increases from employees Tracy Saenz, Carlos Negrete, Richie
Elisarras, and Justin Blea, withholding vacation pay from employee Linda Padilla,
and imposing more onerous sick leave requirements on Linda Padilla.
4. Did the Respondent violate Section 8(a)(5) of the Act by engaging in the following
conduct concerning employees employed in the unit represented by the Union
without prior notice to the Union and without affording the Union an opportunity to
bargain regarding the changes: beginning on November 15, 2005 ceasing to provide
its employees with commensurate wage increases upon promotion; on October 16,
announcing it would, effective December 1, provide its employees with pay increases
and announcing it would convert certain of its employees to full-time status upon
completion of a review.
5. Did the Respondent violate Section 8(a)(5) of the Act by withdrawing recognition
from the Union on September 20.
III. Jurisdiction
The Respondent, a Texas corporation, with an office and place of business in Ruidoso,
New Mexico (the Ruidoso store) has, at all relevant times, been engaged in the retail sale of
groceries and related products. During the 12-month period ending May 15, the Respondent, in
conducting its operations, derived gross revenues in excess of $500,000 and purchased and
received goods valued in excess of $50,000 directly from points outside the State of New
Mexico. The Respondent admits, and I find, it has at all relevant times been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union
has been a labor organization within the meaning of Section 2(5) of the Act.4
IV. Findings of Fact
A. Company Policies and Collective Bargaining
Respondent, with corporate offices located in Sweetwater Texas, operates twenty-three
supermarkets in the states of New Mexico and Texas. Respondent’s three stores in New
Mexico are located in the cities of Roswell, Albuquerque, and Ruidoso. Respondent acquired

4 Unless otherwise explained, findings of fact herein are based on party admissions,
stipulations, and uncontroverted testimony.
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the Ruidoso store in 2001.5 At all relevant times, the Ruidoso store was managed by Greg
Stewart (Mr. Stewart), store manager, succeeded in August 2005 by Alfred G. Romero
(Mr. Romero), along with Bob Crumpton (Mr. Crumpton), District Manager responsible for the
New Mexico stores, whose office was at the Ruidoso store (the respective store manager and
Mr. Crumpton are hereinafter referred to collectively as store managers). Mr. Crumpton
reported to Jay Lawrence (Mr. Lawrence), president of Respondent.
At all relevant times, certain terms and conditions of employment of Respondent’s
employees companywide were set forth in a employee handbook issued to employees, which,
in relevant part, provided that employees who regularly worked a minimum of 32 hours per
week in a period of ninety days were entitled to fulltime status while employees who worked
fewer hours were considered part-time. Part-time employees were not entitled to vacation pay,
sick leave, or health insurance benefits. No specific company policy or procedure existed for
transitioning employees from part-time to fulltime status, but according to Mr. Stewart, the
Respondent regularly transitioned employees when their work hours averaged over 32 hours a
week during a 90-day period.6 The handbook further provided that all employees notify the
store manager in advance of absence.
The Respondent’s employee handbook did not address pay increases. However, the
Respondent’s common practice was to grant an attendant wage increase upon promotion to a
higher-paid position. Merit increases were also granted, either by the managers, sua sponte, or
when an employee requested a merit pay increase. In the latter circumstance, the
Respondent’s practice was for store managers to evaluate the employee’s request based on
his/her job responsibilities, attendance, and customer service.7 With regard to time off, the
employee handbook provided for sick leave and vacation benefits only for fulltime employees.
No specific policies or procedures existed for implementation of the leave provisions or for
otherwise allowing leave. The store managers had broad discretion to promote employees, to
grant merit pay raises, to grant paid and unpaid leave, and to transition employees from part-
time to fulltime status.
In July 2005, the Union filed a representation petition with the Board covering employees
at the Ruidoso store. According to Mr. Stewart, thereafter Mr. Crumpton told supervisors in
management meetings that Mr. Lawrence said the company would never sign a union contract.
Mr. Lawrence denied ever having said that to Mr. Crumpton, which denial Mr. Crumpton
corroborated. The following participants in management meetings denied that Mr. Crumpton
ever made any such statement: Ken Redfearn, produce manager, Steve Day, night manager;
Larry Perkins, assistant store manager since August 2005; and Mr. Romero. While I found

5 At the hearing, the General Counsel was not permitted to adduce evidence that at time of
acquisition, Respondent restricted the hiring of union-represented employees of the
predecessor employer in order to avoid having to recognize the Union. In its post-hearing brief,
Counsel for the General Counsel moves for reconsideration of the ruling excluding such
evidence. The motion is denied.
6 In spring 2005, the Respondent’s central payroll office sent Mr. Stewart a list of employees
whose hours worked dictated the transition to fulltime status. On other occasions, when
employees asked for a status change, the managers calculated the hours and directed or
denied the change.
7 As to promotions, merit increases, and part-time to fulltime transitions at the Ruidoso store,
Mr. Crumpton had final approval.
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Mr. Stewart to be generally credible, his testimony in this regard, which provides neither context
nor explicit wording, deters reasonable evaluation of the alleged statements; consequently I do
not accept his testimony.8
Following the filing of the representation petition, the Respondent, through Fred B.
Grubb (Mr. Grubb) its labor consultant, investigated operations at the Ruidoso store. By a
July 28, 2005 memorandum, Mr. Grubb informed Mr. Lawrence, inter alia, that employees felt
they had little hope of getting wage increases, as the practice was to consider an increase only
after an employee requested one. At the request of employees, Mr. Lawrence held an
employee meeting exclusive of Mr. Stewart and Mr. Crumpton. In the meeting, employees
complained about various employment issues, including the failure consistently to transition
qualifying employees into fulltime status and to grant earned vacation time. Mr. Lawrence
concluded that Mr. Stewart had not followed the handbook provisions regarding part-
time/fulltime status and allocation of vacation time. On August 5, 2005, the Respondent
terminated Mr. Stewart, replacing him with Mr. Romero.
On September 12, 2005, following a Board-conducted representation election, the Board
certified the Union as the representative of the following unit of employees in the Ruidoso store
(the unit):
All employees employed by the Respondent at [the Ruidoso store], excluding the Store
Director, Assistant Store Directors, Bakery/Deli Manager, Produce Manager, Market
Manager, guards, and supervisors as defined in the Act.
Thereafter, the Respondent and the Union engaged in collective bargaining over terms and
conditions of employment affecting the union, holding six negotiating meetings between
December 6 2005, and March 15. The Ruidoso store, employing 34 unit employees, was the
Respondent’s only store where employees were represented by a union.
Following the Union’s certification, the Respondent never notified the Union and/or
afforded the Union an opportunity to bargain about changes to the Respondent’s
promotion/wage increase practices. During the course of negotiations between the Respondent
and the Union, the Respondent insisted that the economic status quo be maintained at the
Ruidoso store, of which position the Union informed employees in the Ruidoso store in a
February 3 collective bargaining update:
…
The Union gave Lawrence Brothers a complete economic proposal on
January 24. The Union’s proposal included pay raises for every employee…The
Company rejected the Union’s proposal which then led to the Union making a
second proposal on wages. Lawrence Brothers again rejected the Union’s
proposal. Lawrence Brothers only proposal was to keep the status quo with
Insurance, Wages, Vacations, and holidays, meaning they stay exactly as the
last five years…

8 Inter alia, Mr. Stewart testified, “Basically [Mr. Crumpton said] that the Lawrence Brothers
would never sign a union contract. They would possibly fail or close the stores that were—that
went union.” Mr. Stewart’s use of the word “basically” suggests that he may have been
recounting inferences he drew from Mr. Crumpton’s statements rather than the statements
themselves.
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In May, the Respondent instituted a new system with regard to promotions and wage
increases in all stores except the Ruidoso store. The new wage increase program provided
essentially that the Respondent conduct an annual review of each employee’s performance and
grant wage increases indexed to employees’ performance scores.
B. Post-election Company Actions Regarding
Part-time/Fulltime Status and Promotional Wage Increases
Both before and after the union election, part-time employee Linda Padilla (Ms. Padilla)
asked to be made a fulltime employee consistent with the number of hours she worked. Two
weeks after the election, according to Ms. Padilla, the Respondent reduced her hours. When
she asked Mr. Romero for an explanation, he told her it was because of “this union stuff,” that
everything was on hold, that he had to follow proper procedure, and that until things were
settled the company would reduce her hours so that she would not qualify as fulltime.9
Mr. Romero agreed that he had cut Ms. Padilla’s hours following the election but explained that
all hours were cut because of reduced sales after Labor Day. Although tacitly denying that he
had cut Ms. Padilla’s hours to prevent her qualifying for fulltime status, Mr. Romero did not
otherwise deny Ms. Padilla’s account of their conversation, which I credit.10
When the Respondent hired Justin Blea (Mr. Blea) in March 2005, Mr. Romero told him
he would receive a raise after 90 days. In October or November 2005, Mr. Blea asked
Mr. Romero why he had not yet received the raise. Mr. Romero told him that he could do
nothing because of the Union.11
In November or December 2005, Tracy Saenz (Ms. Saenz) was promoted from the
position of sacker to checker, entitling her to a wage increase.12 The increase was not
forthcoming, and in February Ms. Saenz asked Mr. Romero about her wages. He told her that
there was a rate freeze due to “the other” and that he could look into it after “the other.”
Ms. Saenz assumed he was talking about the Union.13 In April, Ms. Saenz asked Mr. Crumpton
when she would get her raise. According to Ms. Saenz, Mr. Crumpton told her that he could not

9 At about the same time, the Respondent transitioned Judy Kendall to fulltime status. In his
post-hearing brief, Counsel for the General Counsel argues the transition was a discriminatory
reward for antiunion activity that included vocally opposing the Union and serving as the
Respondent’s observer at the representation election. Ms. Kendall’s transition to fulltime status,
while immune from complaint allegation because of Section 10(b) of the Act, can demonstrate
animus if found discriminatory. Smithfield Foods, Inc., 347 NLRB No. 110, fn 9 (2006). There is,
however, insufficient evidence to support a finding that the Respondent was unlawfully
motivated in transitioning Ms. Kendall.
10 The Respondent’s September 2005 reduction of Ms. Padilla’s hours falls outside the 10(b)
period, and it is not clear the reduction was a continuing practice. Therefore, I have considered
only whether the exchange demonstrated animus.
11 Mr. Blea had obvious difficulty with recollection, necessitating frequent leading by Counsel
for the General Counsel. I cannot give weight to Mr. Blea’s testimony where it conflicts with
that of other witnesses. Mr. Blea’s testimony in this regard is uncontroverted, but, as it is
unclear whether the latter conversation occurred within the 10(b) period, I have considered only
whether Mr. Romero’s statements reflected animus.
12 There being no evidence to the contrary, I find the promotion occurred within the 10(b)
period.
13 A later conversation between Mr. Romero and Stella Harris reveals that Mr. Romero did,
in fact, mean the Union by his oblique reference to “the other.”
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guarantee anything until “all this” was cleared up. Mr. Crumpton denied telling Ms. Saenz that
there was a pay freeze. Ms. Saenz’ recollection of that conversation was admittedly weak, and
Counsel for the General Counsel elicited her testimony of it through leading questions. While I
accept Ms. Saenz’ testimony regarding her conversation with Mr. Romero, I do not credit her
account of her conversation with Mr. Crumpton. In June, following the Union’s unfair labor
practice charge, Mr. Romero gave Ms. Saenz a check for retroactive wages to cover the raise
she should have received upon promotion to checker and apologized for the delay.
In December 2005, Carlos Negrete (Mr. Negrete) was promoted from sacker to stocker,
which entitled him to a wage increase. At the time of promotion Mr. Romero told Mr. Negrete he
would receive an increase of $1 to $1.50 an hour. After assuming the stocker duties,
Mr. Negrete asked about the wage increase, but Mr. Romero told him he would not receive one
at that time. According to Mr. Negrete, Mr. Romero said everything was frozen because of what
was going on with the Union, and Mr. Negrete would not receive a raise until everything was
taken care of. Richie Elisarras (Mr. Elisarras) who had also been promoted to stocker and who
also did not receive the commensurate pay raise was present, and Mr. Romero gave
Mr. Elisarras the same explanation for his omitted raise.14 During the ensuing weeks, both
Mr. Negrete and Mr. Elisarras continued to ask Mr. Romero about their raises. Each time
Mr. Romero answered that he could do nothing about it until everything was cleared up with the
Union. Mr. Romero denied telling Mr. Negrete he would receive a raise upon promotion,
testifying that he told Mr. Negrete he would be on probation. Mr. Romero did not otherwise
dispute Mr. Negrete’s testimony of conversations among Mr. Negrete, Mr. Elisarras, and
Mr. Romero concerning raises. Mr. Romero admitted that no other promoted employee had
been placed on probation and agreed that employees customarily received wage increases
upon promotion. The unexplained disparity in denying Mr. Negrete a promotional wage
increase undercuts Mr. Romero’s credibility, as does his failure to recount fully his interchanges
with Mr. Negrete and Mr. Elisarras. The Respondent argues that Mr. Negrete’s testimony
should not be accepted because it was uncorroborated by Mr. Elisarras. However, the absence
of refutative evidence justifies reliance on Mr. Negrete’s testimony.
During the same period, Mr. Negrete and Mr. Elisarras also spoke to Mr. Perkins about
their prospective raises. Mr. Perkins told them that because of what was happening with the
Union, everything was frozen, and the raises might be withheld for three months to a year.
Mr. Negrete received no wage increase during the remainder of his employment with the
Respondent, which ended March 18.
In March, Stella Harris (Ms. Harris) a checker for Respondent who had been employed
at the store since 2001, asked Mr. Romero for a raise. Mr. Romero said that because of the
“other,” everything was frozen. Ms. Harris asked if by the “other,” he meant the Union, and

14 Mr. Elisarras did not testify, and findings as to him are based on Mr. Negrete’s testimony.
Mr. Romero testified that Mr. Elisarras was promoted to stocker at the end of December 2005 or
beginning of January and that he received his pay raise, although Mr. Romero could not recall
the date. No clarifying company records were adduced. Based on Mr. Negrete’s testimony,
credited as explained below, I find that Mr. Elisarras was promoted at about the same time as
Mr. Negrete and that the Respondent withheld a commensurate wage increase.
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according to Ms. Harris, Mr. Romero said he did.15 At about the same time, Ms. Harris
overheard Mr. Perkins tell someone that when all the “union crap” was over the store might be
able to get a needed piece of power equipment.
In late May or early June, Mr. Blea was promoted from courtesy clerk to stocker but did
not receive the commensurate pay increase for two to three weeks. Prior to the advent of the
Union, no other promoted employee had had to wait that long for a promotional raise.
When Respondent hired Amanda Meredith (Ms. Meredith) as a part-time employee in
October 2005, Mr. Romero told her that after a 90-day probationary period, she would be
transitioned to fulltime status with the possibility of a raise. Thereafter, Ms. Meredith worked up
to 40 hours per week. In late May or early June, Ms. Meredith asked Mr. Romero why she was
still classified as a part-time employee. Mr. Romero said that because people were trying to get
the Union in, there was nothing he could do about transitioning her, but that once the Union left,
everything could return to normal.16
C. Post-election Company Actions
Regarding Time Off
In December 2005, Mr. Romero granted Ms. Padilla leave from December 11 through
17, 2005. According to Ms. Padilla, Mr. Romero and Larry Perkins (Mr. Perkins), assistant store
manager, assured her she would be paid for her time off but told her to say nothing about it, as
other employees would not receive a similar benefit.17 The Respondent did not pay Ms. Padilla
for the time off, and when Ms. Padilla protested, Mr. Perkins, and later Mr. Romero, told her that
because of the Union, everything was on hold. Shortly thereafter, when Mr. Lawrence visited

15 Mr. Romero admitted telling Ms. Harris that the Respondent could not give her a raise
“because of the other,” but he testified that when she asked if he meant the Union, he did not
respond. I credit Ms. Harris’ testimony. Even if I were to accept that Mr. Romero did not explain
what he meant by his reference to the “other,” it is reasonable to infer from his silence that he
meant the Union and that Ms. Harris was justified in so inferring.
16 Ms. Meredith’s testimony that the conversation referenced people “trying to get the Union
to come in” seemed to suggest that the interchange occurred prior to the election. Under cross-
examination, Ms. Meredith explained that the conversation took place at a time when the Union
“wasn’t completely voted in, like all of this stuff was going on.” Under redirect examination,
Ms. Meredith further explained that although the Union had been voted in, discussion about the
terms meant that they were not completely in. Contrary to the Respondent’s post-hearing
argument, I find Ms. Meredith’s testimony was not unreliably inconsistent, but merely reflected
an unsophisticated view that the Union was not fully established until contract negotiations were
successfully concluded. I credit her testimony.
17 Mr. Romero denied giving any such assurance. Mr. Romero was vague about whether he
had discussed denial of pay with Ms. Padilla, but he testified he thought he told her she could
not receive vacation pay because she did not accrue vacation as a part-time employee.
Mr. Perkins testified that he did not recall ever having a conversation with Ms. Padilla where
Mr. Romero was also present and denied telling Ms. Padilla she would get paid vacation.
Mr. Perkins’ testimony does not clearly corroborate Mr. Romero’s denial or contradict
Ms. Padilla’s account. After evaluating the directness and sincerity of the three accounts, I
accept Ms. Padilla’s testimony.
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the Ruidoso store, Ms. Padilla complained to him about not receiving either vacation pay or
fulltime status. Mr. Lawrence told her he would check into it, but everything was on hold
because of the Union.18
On May 6, Ms. Padilla missed work because of a family emergency. According to
Ms. Padilla, the following day Mr. Romero told her that in future she would have to provide a
two-week notice before any absence. Mr. Romero denied requiring Ms. Padilla to give two-
weeks notice before missing work.19
D. Employee Disaffection with the Union and
the Respondent’s Withdrawal of Recognition
In the months following certification, the following employees reported to Greg Frazier
(Mr. Frazier), secretary-treasurer of the Union, that because of the Union the Respondent was
refusing to grant wage increases or was changing other conditions of employment: Fred Hall,
who also expressed anger at the Union; Mr. Negrete, who raised the issue during a union
meeting; Ms. Padilla, who was angry with the Union because her hours had been reduced and
she had not been given vacation pay; Ms. Meredith, who said she had been refused a change
to fulltime status because everything was on hold; Leah Harris, who said she was leaving the
Respondent’s employ because everything was taking too long; and Aimee Noel who wanted the
Union to strike to force the Respondent to give wage increases. During the post-certification
period, the Union held three or four meetings of the Respondent’s employees with steadily
decreasing attendance.
During September, Judy Kendall (Ms. Kendall), video, customer service, and office clerk
for the Respondent, contacted three of the Respondent’s stores, asking about their pay raises
and benefits. Upon learning that each store had a pay scale, she contacted the Board and
inquired how to discontinue union representation at the company. Thereafter, she drafted a
handwritten, undated document headed “Please sign this pitition [sic] to stop Union Local 1564”
(the Disaffection Petition) and circulated it among employees. According to Ms. Kendall, she
told each solicited employee that all the Respondent’s other stores had a pay raise scale. She
said she had spoken to the Board, and the only way for employees to receive similar benefits
was to stop the Union.
Eight of the Disaffection Petition signers testified as follows: Julean Rushing and Sandra
Garcia testified, essentially, that Ms. Kendall told them the purpose of the petition was to keep
the Union out, as well as to get a pay raise. Regina Redfearn, Edgar Ulrich, and Steve Day
testified, essentially, that Ms. Kendall told them the purpose of the petition was to get rid of the
Union. Mr. Blea, Joanne Otero (Ms. Otero), and Duane Franco (Mr. Franco) testified that
Ms. Kendall told them the only purpose of the petition was to obtain pay raises. Mr. Blea whose
signature is seventh on the Disaffection Petition and Mr. Franco, whose signature is ninth,
further testified that when Ms. Kendall proffered the petition to them, no heading existed on the
document. As noted above, Mr. Blea was not a reliable witness. As for Mr. Franco’s testimony,

18 Mr. Lawrence agreed he spoke to Ms. Padilla in January. Although he did not recount
their conversation, he denied talking to her about the Union. In its post-hearing brief, the
Respondent states its position that it was forbidden from making changes to the status quo after
the representation petition was filed. As Mr. Lawrence’s nonspecific denial prevents me from
fully assessing his version of his and Ms. Padilla’s conversation, and as the statement
Ms. Padilla charges him with is consistent with the Respondent’s position, I credit her account.
19 I found Ms. Padilla to be forthright and sincere, and I credit her testimony in this regard.
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witnesses who signed before he did recalled seeing the heading,20 and examination of the
original Disaffection Petition showed the “J” in the first signature to have been written over a
letter in the heading, indicating that the first signature was appended after the heading was
written. Consequently, I do not credit Mr. Blea or Mr. Franco’s testimony regarding the
Disaffection Petition. As for Ms. Otero’s testimony, both Ms. Kendall and Ms. Otero were candid
and forthright in recounting, respectively, the former’s circulation and the latter’s reception of the
Disaffection Petition. I find, therefore, that although Ms. Kendall informed all solicited
employees that the purpose of the petition was to stop or get rid of the Union as well as to get a
raise, Ms. Otero, in the press of her busy day, did not take time to read the heading on the
petition and heard only information about a possible raise.
After Ms. Kendall had garnered 26 signatures, she gave the Disaffection Petition to
Mr. Crumpton, who said he would take care of the matter. Following Mr. Crumpton’s
acceptance of the Disaffection Petition, the Respondent, by letter dated September 20,
withdrew recognition of the Union and thereafter had no contact with the Union regarding terms
and conditions of unit employees’ employment.
On October 16, the Respondent held three separate meetings of unit employees at its
Ruidoso store, two of which were conducted by Mr. Lawrence and the last of which was
conducted by Mr. Crumpton. Ms. Otero testified that in the meeting she attended, Mr. Lawrence
said employees had voted the Union out by signing the Disaffection Petition although “there
might be some people that said they didn’t know what they were signing.” Ms. Garcia testified
that in the meeting she attended, Mr. Crumpton or Mr. Romero said that “a lot of people signed
[the petition] and didn’t know what they were signing.”21 In each respective meeting,
Mr. Lawrence and Mr. Crumpton informed employees that based on the Disaffection Petition the
Respondent would no longer bargain with the Union and on December 1 would implement the
employee evaluation and compensation program that other stores in the Respondent’s system
enjoyed. Further, Mr. Lawrence and Mr. Crumpton told the employees that the Respondent
planned to regularly review employees’ hours to determine qualification for fulltime status.
E. Post-Complaint Employee Interviews
During the first week of November, Mr. Grubb met with various employees in preparation
for the upcoming unfair labor practice hearing. Each interviewed employee signed an
“Assurances” statement to the effect that the meeting was voluntary, that the employee could
terminate the interview at any time, that the employee did not have to answer any questions,
and that no reprisals would result. Mr. Grubb asked Edgar Ulrich, inter alia, if he had attended
any union meetings.

20 Steve Day and Regina Redfearn, numbers 2 and 5 respectively on the Disaffection
Petition, credibly recalled seeing the heading.
21 I cannot accept Ms. Garcia’s testimony in this regard. It is inherently implausible that
either Mr. Crumpton or Mr. Romero would inform employees that the Respondent would no
longer bargain with the Union based on the Disaffection Petition while at the same time
admitting that its signators did not know what they were signing.
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V. Discussion
A. Positions of the Parties
The General Counsel’s theory of the case, based Master Slack Corp.,22 is that, following
certification of the Union, the Respondent engaged in a course of unfair labor practices that
resulted in loss of employee support for the Union and consequent withdrawal of recognition by
the Respondent.
The Respondent contends that no unfair labor practices occurred, or, assuming they did,
they were not the proximate cause of employee dissatisfaction with the Union, and that it
lawfully withdrew recognition of the Union based on an uncoerced and clearly demonstrated
disaffection of the majority of its unit employees.
B. Alleged Unfair Labor Practices
1. Alleged Threats and Promises
The Complaint alleges that during the period of November 2005 through June,
supervisors of Respondent made the following threats or promises: threat to withhold fulltime
status or wage increases, threat of loss of vacation pay, threat to issue written warnings, threat
to forestall acquiring new equipment, threat that the Union would cease to be employees’
representative, and promise to grant fulltime status if employees decertified the Union.
In September 2005, Mr. Romero told Ms. Padilla that because of “this union stuff” her
hours would be reduced to prevent her attaining fulltime status until things were settled. The
evidence shows that, albeit somewhat haphazardly applied, the Respondent had a practice of
converting part-time employees to fulltime status when their work hours averaged over 32 hours
a week during a 90-day period. Mr. Romero’s statements to Ms. Padilla threatened that any
transition to fulltime status would be hindered because of the Union, which statements could
reasonably be expected to interfere with, restrain, and coerce employee support of the Union.
See Jensen Enterprises, Inc., 339 NLRB 877 (2003).23
In January, in separate conversations, Mr. Perkins, Mr. Romero, and Mr. Lawrence told
Ms. Padilla (still on part-time status) that promised vacation pay for an absence in December
would not be forthcoming because of the Union. Although the evidence does not establish that
the Respondent had any past practice of granting vacation pay to part-time employees, an
employer violates Section 8(a)(1) of the Act by attributing its refusal to implement a promised
benefit to the representational presence of the Union. See Invista, 346 NLRB No. 107, slip op. 3
(2006).
When the Respondent hired Mr. Blea in March 2005, Mr. Romero told him he would
receive a raise after 90 days. After the Union was certified, Mr. Romero told Mr. Blea that he
could not grant the raise because of the Union, clearly demonstrating animus.

22 271 NLRB 78 (1984).
23 The Complaint alleges that in and after November 15, 2005 through June, the
Respondent threatened to withhold converting employees to fulltime status because of the
union. This interchange between Mr. Romero and Ms. Padilla occurred in September 2005 and
is clearly outside the 10(b) period. However, it demonstrates animus as well as showing the
extent of the Respondent’s attributing changed conditions to the Union.
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On various occasions within the 10(b) period, Mr. Romero and/or Mr. Perkins told
Ms. Saenz, Mr. Negrete, and Mr. Elisarras, each of whom had been promoted to higher paying
positions, and Ms. Harris, who requested a raise, that wages were frozen because of the Union.
Informing employees that they cannot receive wage increases because of the Union or that
wages are frozen during negotiations unlawfully imparts to employees the message that their
wages are endangered because they have selected the Union as their collective bargaining
representative. Federated Logistics and Operations, 340 NLRB 255 (2003), enfd. 400 F.3d 920
(D.C. Cir. 2005); Jensen Enterprises, Inc., at 877. Accordingly, by telling employees their
wages were frozen because of the Union, the Respondent violated Section 8(a)(1) of the Act.
In May or June, Mr. Romero told Ms. Meredith that her promised transition from part-time
to fulltime status could not be effected until after the Union left, at which time everything could
return to normal. Mr. Romero’s statement amounted to a threat to deprive employees of
previously available benefits because they were represented by the Union and violated Section
8(a)(1) of the Act. See Jensen Enterprises, Inc., at 878.
In March, Ms. Harris overheard Mr. Perkins tell someone that when all the “union crap”
was over the store might be able to get a needed piece of power equipment. Counsel for the
General Counsel contends the statement constituted a threat to forestall acquiring new
equipment because employees had selected the Union, citing The Kroger Co., 311 NLRB 1187
(1993). In the Kroger case, the employer, in violation of Section 8(a)(1) of the Act, told
employees that plans to build a new freezer facility had been put on hold because of union
activity. The instant situation is significantly different. Mr. Perkins’ comment could only
reasonably have been perceived as idle speculation about whether and when Respondent
might replace a piece of equipment and could not objectively be viewed as threatening or
coercive. I shall, therefore, dismiss this allegation of the Complaint.
As noted above, I have credited Mr. Crumpton’s denial that he told Ms. Saenz there was
a pay freeze. Accordingly, I shall dismiss the Complaint allegation relating to that alleged
conversation. The General Counsel presented no evidence regarding complaint allegations that
Respondent threatened, in March, to issue written warnings, threatened, on May 31, that the
Union would cease to be the employees’ representative, and promised, on May 31, to grant
fulltime status if employees decertified the Union. I shall, therefore, also dismiss those
allegations.
The General Counsel amended the Complaint at the hearing to allege that Mr. Grubb
unlawfully interrogated employees. Counsel for the General Counsel concedes that when
Mr. Grubb met with employees on November 7 in preparation for the upcoming unfair labor
practice hearing, he gave them the requisite Johnnie’s Poultry24 assurances. Counsel for the
General Counsel argues, however, that Mr. Grubb overstepped the boundaries of those
safeguards when he asked Mr. Ulrich about his union activities. Counsel for the General
Counsel does not specify which of Mr. Grubb’s questions were allegedly unlawful but
presumably Mr. Grubb’s asking whether Mr. Ulrich had attended any union meetings qualifies.
Questions asked in Johnnie’s Poultry circumstances must have a legitimate purpose and not
otherwise interfere with an employee’s statutory rights. Inasmuch as the General Counsel
propounded a Master Slack theory of unlawful withdrawal of recognition, employee attendance

24 145 NLRB 770 (1964), enf. Den. 344 F2d 617 (8th Cir. 1965).
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or nonattendance at union meetings has at least some relevance to the issues.25 Mr. Grubb’s
question about union meeting attendance, by itself, did not constitute a coercive attempt to elicit
information about Mr. Ulrich or other employees’ union sentiments. I find that Mr. Grubb did not
overstep the Johnnie’s Poultry boundaries, and accordingly I shall dismiss this allegation of the
complaint.
2. Alleged Violations of 8(a)(3)
The Complaint alleges that in 2005, the Respondent discriminatorily withheld wage
increases from employees Ms. Saenz, Mr. Negrete, and Mr. Elisarras and in 2006 from
Mr. Blea. In November or December 2005, Ms. Saenz was promoted to the position of checker,
and in December 2005, Mr. Negrete and Mr. Elisarras were promoted to the position of stocker.
Under the Respondent’s usual practice, the four employees would have received pay increases
consequent to their promotions. Mr. Negrete and Mr. Elisarras received no pay increases, and
Ms. Saenz’ increase was delayed for seven months. When Mr. Negrete and Mr. Elisarras
asked Mr. Romero and then Mr. Perkins for an explanation, the two supervisors on several
occasions told them, essentially, that wages were frozen until matters were resolved with the
Union. When Ms. Saenz asked for an explanation, Mr. Romero told her that a wage freeze
existed because of the “other,” meaning the Union, and that he could look into the matter after
“the other.” In June, when Mr. Blea was promoted to a stocker position, the Respondent
delayed his attendant wage increase for two to three weeks. Although there is no evidence the
Respondent expressly linked the delay to the Union, it is reasonable to infer, in the absence of
any explanation and given the abnormality of the delay, that it was a result of the Respondent’s
wage freeze.
When an employer premises withholding wage increases on the Union’s participation in
collective bargaining, the withholding constitutes “discrimination in regard to…[a] term or
condition of employment…” and perforce has the effect of “discourag[ing] membership in [a]
labor organization…”26 In these circumstances, withholding wage increases violates Section
8(a)(3) of the Act. See SNE Enterprises, Inc., 347 NLRB No. 43 (2006). Accordingly, the
Respondent’s withholding of promotional wage increases due Mr. Negrete and Mr. Elisarras,
and its delay of promotional wage increases to Ms. Saenz and Mr. Blea violated Section 8(a)(3)
and (1) of the Act.27
The Complaint alleges that since December 2005, the Respondent has discriminatorily
withheld vacation pay from Ms. Padilla. In December 2005, Mr. Romero reneged on a promise
to Ms. Padilla to grant her paid time off, telling her that because of the Union, everything was on
hold. I find that the withholding of any benefit, even one discretionally bestowed, because of
ongoing collective bargaining negotiations, has the effect of discouraging membership in the
Union and violates Section 8(a)(3) and (1) of the Act.

25 In fact, Counsel for the General Counsel introduced evidence of diminished attendance at
union meetings to support his argument that the Respondent’s conduct vitiated employee
support for the Union.
26 Section 8(a)(3) of the Act.
27 The Respondent contends that its subsequent payment to Ms. Saenz of her withheld pay
increase and concurrent apology render the allegation moot. The alleged conduct is neither de
minimus nor isolated, and the compensation and apology do not dispel the restraining and
coercive effects of the unlawful conduct on employee rights. See In Re Golub Corp., 338 NLRB
515, 516 (2002).
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The Complaint alleges that on May 20, Respondent imposed more onerous sick leave
reporting requirements on Ms. Padilla in violation of Section 8(a)(3) of the Act. In May,
Mr. Romero told Ms. Padilla that she would thereafter have to provide the Respondent with a
two-week notice prior to any absence from work. Although Mr. Romero’s directive may have
been unwarranted and intemperate, there is no evidence that antiunion considerations
prompted it. Accordingly, I shall dismiss that allegation of the Complaint.28
3. Alleged Violations of 8(a)(5)
The Complaint alleges that the Respondent engaged in certain unilateral conduct in
violation of Section 8(a)(5) of the Act: (1) beginning in November 2005 the Respondent ceased
providing its employees with commensurate wage increases upon promotion to higher level job
classifications; (2) on September 20, the Respondent withdrew its recognition of the Union as
the exclusive collective-bargaining representative of its unit employees; (3) on October 16, the
Respondent announced it would provide employees with cost-of-living adjustment pay increases
effective December 1 and would convert certain of its employees to full-time status upon
completion of a review.
When employees are represented by a labor organization, their employer may not
unilaterally change any of their terms and conditions of employment. See NLRB v. Katz, 369
U.S. 736, 747 (1962). The employer has a duty not only to maintain what it has already given its
employees, “but also to implement benefits that have become conditions of employment by
virtue of prior commitment or practice.” Jensen Enterprises, Inc., at 877, citing Alpha Cellulose
Corp., 265 NLRB 177, 178 fn. 1 (1982), enfd. mem. 718 F.2d 1088 (4th Cir. 1983). An employer
may not unilaterally discontinue a practice of granting wage increases during negotiations even
if an employer exercises discretion in setting the amount of such raises. Five Star
Manufacturing, Inc., 348 NLRB No. 94, fn. 4 (2006); Jensen Enterprises, Inc., at 877-78. The
Board has stated, “What is required in such circumstances ‘is a maintenance of preexisting
practices, i.e., the general outline of the program, however the implementation of that program
(to the extent that discretion has existed in determining the amounts or timing of the increases),
becomes a matter as to which the bargaining agent is entitled to be consulted.’” Jensen
Enterprises, Inc., at 878, citing Oneita Knitting Mills, 205 NLRB 500 fn. 1 (1973). Further, an
employer may neither announce nor implement pay or benefit increases without first notifying
the union that represents its employees and offering it an opportunity to bargain over any
prospective change. Highlands Hospital Corporation, 347 NLRB No. 120 (2006); Caldwell
Manufacturing Company, 346 NLRB No. 100 (2006); Kurdziel Iron of Wauseon, Inc., 327 NLRB
155 (1998).
In the months following the September 2005 certification of the Union, Respondent
discontinued its practice of granting commensurate wage increases to its employees who were
promoted into higher-paying job classifications. Respondent did so without first notifying the
Union and offering it an opportunity to bargain over the cessation and thereby unilaterally
changed terms and conditions of unit employment in violation of Section 8(a)(5) of the Act.
On September 20, the Respondent withdrew recognition of the Union based on the
Union’s loss of majority status as evidenced by the Disaffection Petition. On October 16,
following its withdrawal of recognition from the Union, the Respondent informed employees that

28 The General Counsel did not allege that Mr. Romero’s imposition of a two-week notice
requirement violated Section 8(a)(5) of the Act.
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on December 1 it would implement the employee compensation program previously instituted in
its other stores and convert qualifying employees to fulltime status upon completion of a review.
The legality or illegality of this conduct depends on the integrity of the Disaffection Petition.
The General Counsel contends that Respondent could not lawfully rely upon the
Disaffection Petition to withdraw recognition on two grounds: (1) employees were intentionally
misled regarding the purpose of the petition, and (2) the Respondent’s unfair labor practices
created employee disaffection and tainted the Disaffection Petition, precluding the Respondent’s
reliance upon it, as “[a]n employer may not avoid its duty to bargain if its own unfair labor
practices caused the union’s loss of majority support.” Goya Foods of Florida, 347 NLRB No.
103, slip op. 4 (2006) and cases cited therein.
As to the first ground, Counsel for the General Counsel argues that the wording on the
Disaffection Petition was ambiguous at best and that employees were misled regarding its
purpose. The wording read, “Please sign this pitition [sic] to stop Union Local 1564,” a purpose
that Ms. Kendall echoed in circulating the petition. The only reasonable and logical conclusion to
be drawn from the wording and Ms. Kendall’s oral presentation was that the Disaffection Petition
sought to bring an end to union representation, which conclusion five of eight testifying signers
reached, recalling that Ms. Kendall told them the purpose of the petition was, essentially, to get
rid of the Union. I find the wording on the petition demonstrated a clear intention to end
representation by the Union, and Ms. Kendall’s explanation of its purpose further alerted
employees to its objective. Therefore, nothing in the composition or circulation of the
Disaffection Petition precluded the Respondent from relying on it.29
As to the second ground, the Board has set forth a four-part test to determine whether a
causal relationship exists between unfair labor practices and employee disaffection, thereby
tainting or precluding a lawful withdrawal of recognition: (1) [the length of time between the
unfair labor practice and the withdrawal of recognition; (2) the nature of the illegal acts, including
the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to
cause employee disaffection from the union; and (4) the effect of the unlawful conduct on
employee morale, organizational activities, and membership in the union. Master Slack Corp.,
supra at 84.
Proximity in time. Commencing not long after the Union’s certification, the Respondent
withheld fulltime status and promotional wage increases from qualifying employees. The
Respondent also attributed its failure to grant fulltime status and promised vacation pay and/or
to consider otherwise warranted wage increases to the presence of the Union as the
employees’ collective-bargaining representative. The Respondent’s conduct continued into May
or June 2006, spanning the period of collective bargaining meetings between the parties. Thus,
the Respondent’s unremedied unfair labor practices, coupled with their ongoing consequences,
had a significant temporal nexus with the Disaffection Petition.
Nature of the unfair labor practices, possibility of a detrimental or lasting effect on
employees, and tendency to cause disaffection from the Union. Unilateral action is particularly
destructive of employee confidence in a bargaining representative. As the Board stated in Penn
Tank Lines, Inc., 336 NLRB 1066, 1067 (2001), “Where unlawful employer conduct shows
employees that their union is irrelevant in preserving or increasing their wages, the possibility of

29 I find it unnecessary to determine whether Ms. Otero’s signature cannot be relied upon as
an indication of loss of majority support; even without her participation, a clear majority of unit
employees signified their rejection of union representation.
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a detrimental or long-lasting effect on employee support for the union is clear.” The inherent
harm to union support must surely be compounded when unilateral action focuses on matters of
particular concern to employees. Prior to the September 2005 representation election, the
Respondent had identified employee discontent with its failure to consistently transition
qualifying employees into fulltime status and grant promotional wage increases. Indeed,
Mr. Stewart had been fired because of his inconsistent application of the Respondent’s
practices in this regard. Within weeks of the Board’s certification of the Union, the Respondent
unilaterally froze benefits in those areas of greatest consequence to its employees and
attributed its unlawful conduct to employees having selected the Union as their representative.
Concurrent with its unlawful conduct, the Respondent maintained an adamant
bargaining position that precluded wage increases for unit employees. At the same time, the
Respondent instituted a procedure of regular, systematic increases at its other stores. Although
no one contends that the Respondent’s bargaining posture or its institution of a new wage
increase system for its nonunionized employees was unlawful, the Respondent’s unlawful
conduct in such circumstances must have created a logical inference that with the Union gone,
the freeze on wages and benefits would be lifted and benefits extended to other stores would be
attained. Indeed, Ms. Kendall promoted that inference while soliciting signatures for the
Disaffection Petition by telling employees that the only way for them to receive benefits available
at other stores was to get rid of the Union, and a number of employees signed the Disaffection
Petition with the hope of getting raises. It is clear that the Respondent’s widespread and
ongoing unfair labor practices reasonably tended to coerce employees into abandoning support
for the Union.
The effect of the unlawful conduct on employees’ morale, organizational activities, and
membership in the Union. During the period in which Respondent attributed the freeze in
wages and benefits to the Union, employee support for the Union flagged. Six unit employees
complained to the Union about the Respondent’s refusal to grant otherwise merited wage
increases and/or benefits, and Mr. Negrete raised the same issues during a union meeting with
employees. Employees also expressed dissatisfaction with the Union, and attendance at union
meetings steadily decreased. In these circumstances, there is no validity to the Respondent’s
argument that union ineptitude, and not the Respondent’s conduct, created employee
disaffection. Rather, the evidence demonstrates an increasing deterioration in the relationship
between unit employees and the Union, which can reasonably be linked to the Respondent’s
unfair labor practices. See Broadway Volkswagen, 342 NLRB 1244, 1247 (2004) (unilateral
changes involving wage increases and promotions, particularly where the union is bargaining for
its first contract, can have a lasting effect on employee support for the union.)
Inasmuch as the Respondent’s substantial and ongoing unfair labor practices tainted the
Disaffection Petition, the petition cannot provide a lawful basis for withdrawal of recognition.
Goya Foods of Florida, supra; Priority One Services, Inc., 331 NLRB 1527 (2000); Lee Lumber
& Building Material Corp., 322 NLRB 175 (1996) (Lee Lumber II), enfd. In relevant part and
remanded in part 117 F.3d 1454 (D.C. Cir. 1997); Powell Electrical Mfg. Co., 287 NLRB 969
(1987) enfd. 906 F.2d 1007, 1014 (5th Cir. 1990).30

30 Renal Care of Buffalo, Inc., 347 NLRB No. 112 (2006), cited by the Respondent, is
inapposite. In that case, the Board agreed with the ALJ that the unfair labor practice alleged to
have tainted the withdrawal petition therein did not occur, whereas significant and coercive
unfair labor practices have been identified herein.
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Accordingly, I find that the Respondent violated Section 8(a)(5) of the Act by the following
conduct: (1) curtailing its practice of providing its employees with commensurate wage
increases upon promotion to higher level job classifications; (2) withdrawing recognition of the
Union as the exclusive collective-bargaining representative of its unit employees; and
(3) announcing its plans to provide employees with a new wage increase system effective
December 1 and to transition certain of its employees to full-time status upon completion of a
review.31
Conclusions of Law
1. Respondent, MAL Enterprises, Inc., d/b/a Lawrence Brothers, is an employer engaged in
commerce and in a business affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. On September 12, 2005, the Union was certified by the Board as the collective-bargaining
representative in the following unit of Respondent's employees, which is an appropriate unit
for collective-bargaining purposes within the meaning of Section 9(b) of the Act:
All employees employed by the Respondent at [the Ruidoso store], excluding the Store
Director, Assistant Store Directors, Bakery/Deli Manager, Produce Manager, Market
Manager, guards, and supervisors as defined in the Act.
4. The Union has been at all times since September 12, 2005 the exclusive bargaining
representative of the employees in said unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. Since on and after November 15, 2005, the Respondent has violated Section 8(a)(5) and (1)
of the Act by unilaterally ceasing to provide its employees with commensurate wage
increases upon promotion to higher level job classifications.
6. Since September 20, 2006, the Respondent has violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from and refusing to bargain with the Union concerning the terms
and conditions of employment of employees in the above-described appropriate unit.
7. On October 16, 2006, the Respondent violated Section 8(a)(5) and (1) of the Act by
announcing to its employees in the above-described appropriate unit that effective
December 1, 2006, it would institute a new wage increase system and transition qualifying
employees to fulltime status upon completion of a review.
8. Respondent violated Section 8(a)(3) and (1) of the Act by withholding wage increases from
employees Tracy Saenz, Carlos Negrete, Richie Elisarras, and Justin Blea because
employees selected the Union as their collective-bargaining representative.
9. Respondent violated Section 8(a)(3) and (1) of the Act by withholding promised vacation pay
from employee Linda Padilla because employees selected the Union as their collective-
bargaining representative.
10. Respondent violated Section 8(a)(1) of the Act by threatening that any transition to fulltime
status would be hindered because of the Union.
11. Respondent violated Section 8(a)(1) of the Act by attributing its refusal to implement a
promised benefit of vacation pay to representation by the Union.

31 The complaint does not allege that, and I make no findings whether the Respondent
implemented the proposed changes on December 1, as announced. The announcement
violates Section 8(a)(5) of the Act irrespective of implementation. ABC Automotive Products
Corp., 307 NLRB 248 (1992).
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12. Respondent violated Section 8(a)(1) of the Act by Informing employees that wages were
frozen during negotiations, thereby threatening wage endangerment because employees
had selected the Union as their collective-bargaining representative.
13. Respondent violated Section 8(a)(1) of the Act by threatening to deprive employees of
previously available benefits because they were represented by the Union.
14. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1), (3), and (5) and 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 be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
I shall recommend that the Respondent bargain in good faith with the Union as the
exclusive collective bargaining representative of the above-described unit with respect to
wages, hours, and other terms and conditions of employment and, if an agreement is reached,
embody it in a signed document. If requested by the Union, the Respondent must rescind any
unilateral changes in benefits and conditions of employment implemented since November 15,
2005, including any unilateral changes in benefits and conditions of employment implemented
since the withdrawal of recognition on September 20, 2006. Nothing in the recommended
Order, however, should be construed to require the Respondent to withdraw any benefit
previously granted unless requested by the Union. See Taft Broadcasting Co., 264 NLRB 185
fn. 6 (1982).
I shall also recommend that the Respondent make whole those employees who suffered
losses due to the Respondent’s unilateral changes and/or discriminatory withholding of wage
increases and vacation pay for any loss of earnings or other benefits they may have suffered,
with interest, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended32
ORDER
The Respondent, MAL Enterprises, Inc., d/b/a Lawrence Brothers, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with United Food and Commercial
Workers Union, Local 1564 (the Union) by unilaterally ceasing to provide its
employees in the following appropriate unit (the unit) with commensurate wage
increases upon promotion to higher level job classifications:

32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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All employees employed by the Respondent at [the Ruidoso facility],
excluding the Store Director, Assistant Store Directors, Bakery/Deli
Manager, Produce Manager, Market Manager, guards, and supervisors
as defined in the Act.
(b) Withdrawing recognition from and refusing to bargain with the Union concerning the
terms and conditions of employment of employees in the unit.
(c) Announcing to its employees in the unit prospective changes in its wage increase
system and prospective transition of qualifying employees to fulltime status upon
completion of a review without first notifying and bargaining in good faith with the
Union.
(d) Withholding wage increases from employees because employees selected the Union
as their collective-bargaining representative.
(e) Withholding vacation pay from employees because employees selected the Union as
their collective-bargaining representative.
(f) Threatening that any transition to fulltime status would be hindered because of the
Union.
(g) Attributing its refusal to implement a promised benefit of vacation pay to the
representational presence of the Union.
(h) Informing employees that wages are frozen during negotiations, thereby threatening
wage endangerment because employees selected the Union as their collective-
bargaining representative.
(i) Threatening to deprive employees of previously available benefits because they are
represented by the Union.
(j) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive representative of the employees
in the unit concerning terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
(b) Make affected employees, including Tracy Saenz, Carlos Negrete, Richie Elisarras,
and Justin Blea, whole for any losses they may have suffered as a result of the
Respondent’s unlawful unilateral changes, with interest.
(c) Make Tracy Saenz, Carlos Negrete, Richie Elisarras, Justin Blea and Linda Padilla,
whole for any losses they may have suffered as a result of the unlawful
discrimination against them, with interest.33
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.

33 The question of whether Respondent has already made Tracy Saenz and Justin Blea
whole is left to the compliance stage of these proceedings.
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(e) Within 14 days after service by the Region, post at its Ruidoso, New Mexico store
copies of the attached notice marked “Appendix.”34 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being signed by the
Respondent's authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since November 15, 2005.35
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated: Washington, D.C., February 15, 2007.
Lana H. Parke
Administrative Law Judge

34 If this Order is enforced by a Judgment of the 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.”
35 Counsel for the General Counsel requests that a high-ranking official of Respondent or an
agent of the Board read the notice to assembled employees at the Ruidoso facility. As the
General Counsel has not shown that the Board’s traditional remedies are inadequate, I deny the
request. See Chinese Daily News, 346 NLRB No. 81, slip op. 4 (2006).
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 do anything that interferes with these rights. More particularly,
WE WILL NOT withdraw recognition from or refuse to bargain in good faith with United Food
and Commercial Workers Union, Local 1564 (the Union) over the terms and conditions of
employment of employees in the following unit (the bargaining unit):
All employees employed by the Respondent at [the Ruidoso store],
excluding the Store Director, Assistant Store Directors, Bakery/Deli
Manager, Produce Manager, Market Manager, guards, and supervisors
as defined in the Act.
WE WILL NOT make changes to the terms and conditions of your employment without prior
notice to the Union in order to permit the Union to bargain with us about any changes, including
changes to our wage system and/or to the way we change your employment status from part-
time to fulltime.
WE WILL NOT announce to our employees changes in our wage system and/or to the way we
change your employment status from part-time to fulltime without first notifying and bargaining in
good faith with the Union.
WE WILL NOT withhold wage increases from employees because our employees have
selected the Union, or any other collective-bargaining representative, to represent them.
WE WILL NOT withhold promised vacation pay from employees because our employees have
selected the Union, or any other collective-bargaining representative, to represent them.
WE WILL NOT threaten that any transition to fulltime status will be hindered because our
employees have selected the Union, or any other collective-bargaining representative, to
represent them.
WE WILL NOT tell any employee that we will not grant vacation pay because our employees
have selected the Union, or any other collective-bargaining representative, to represent them.
WE WILL NOT inform employees that wages are frozen during negotiations with the Union.
WE WILL NOT refuse to transition employees to fulltime status because our employees have
selected the Union, or any other collective-bargaining representative to represent them.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit.
WE WILL, insofar as we have not already done so, make employees whole, with interest, for
any losses they may have suffered as a result of changes we made in our wage system or to
the way we change your employment status from part-time to fulltime.
WE WILL, insofar as we have not already done so, make Tracy Saenz, Carlos Negrete, Richie
Elisarras, Justin Blea and Linda Padilla whole for any losses they may have suffered as a result
of our unlawful discrimination against them, with interest.
MAL Enterprises, Inc., d/b/a Lawrence Brothers
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
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, 602-640-2146.