P.S.K. Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Jan 22, 2007

349 N.L.R.B. 34 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 6
34
P.S.K. Supermarkets, Inc. and United Food and
Commercial Workers, Local 342. Cases 29–CA–
26862, 29–CA–26983, and 29–CA–27186
January 22, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On August 23, 2006, Administrative Law Judge How-
ard Edelman issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.
Contrary to the judge, we find that the Respondent vio-
lated Section 8(a)(1) by posting an overly broad rule that
interfered with employees’ right to wear union buttons,
by directing employees to wear union buttons inside their

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) when: (1) Vice President Noah Katz coer-
cively interrogated employee Luis Rodriguez in November 2004; (2)
Manager Tony Rosado coercively interrogated Rodriguez in March
2005; (3) Katz solicited employees’ grievances in April 2005; (4) Man-
agers Rosado and Sheryce Hodges asked employees to inform union
organizers that they did not want representation; (5) Manager Hodges
initiated two antiunion petitions and solicited employees to sign them;
(6) Manager Kathy Mahoney snatched a union handbook and cards
from Rodriguez; (7) Katz coercively interrogated a group of employ-
ees; and (8) Katz unlawfully promised benefits to employees. Also, no
exceptions were filed to the judge’s dismissal of an allegation that the
Respondent violated Sec. 8(a)(1) by directing nonemployee union
organizers to stop soliciting in the “shopping cart corral area.”
Because, as stated above, we have found three instances of unlawful
interrogation to which the Respondent did not except, we find it unnec-
essary to pass on the General Counsel’s exception to the judge’s failure
to find that Manager Mahoney unlawfully interrogated employee Rod-
riguez on another occasion in March or April 2005. Also, having found
that the Respondent, through Manager Hodges, violated Sec. 8(a)(1) by
initiating two antiunion petitions, and by soliciting employees to sign
them, we find it unnecessary to pass on the General Counsel’s excep-
tion to the judge’s failure to find that Manager Mahoney participated in
this violation. Any such findings of violations would be cumulative
and would not affect the remedy.
The General Counsel excepts to the judge’s findings that: (1) Rod-
riguez placed incorrectly low price tags on merchandise; (2) the Gen-
eral Counsel issued a complaint regarding Rodriguez’ termination; (3)
Rodriguez declined a reinstatement offer; and (4) the Respondent pro-
vided backpay to Rodriguez. Although the General Counsel excepts to
these findings, he supports the judge’s finding that Rodriguez was
credible. The Respondent does not urge that this latter finding be re-
versed. Because these factual findings are not germane to any legal
conclusion in this case, we find it unnecessary to pass on the General
Counsel’s exceptions in this regard.
uniforms only, by creating an impression of unlawful
surveillance, and by directing employees not to be seen
speaking with union agents.
I. THE OVERLY BROAD RESTRICTION ON
WEARING BUTTONS
The Respondent operates a grocery store. It employs
cashiers, clerks in the deli, bakery, meat, and produce
departments, and stock clerks. These employees have
significant contact with the store’s customers. The Re-
spondent requires employees to wear company-issued
uniforms.
The parties stipulated that, on March 22, 2005,2 the
Respondent posted a memo on a company bulletin board.
In the memo, the Respondent prohibited employees from
wearing buttons other than those issued by it. The memo
said, in relevant part:
At this time, we would like to remind you of a few
dress code issues that we need to adhere to. The com-
pany expects all associates to follow our dress code
policy.
. . . .
No pins or buttons other than those issued by Food-
town to promote our programs such as Fresh Friendly,
and Rewards, etc.
. . . .
You may run the risk of being sent home for the day if
you do not follow this policy. If the problem persists
with the same associates, further disciplinary action
could ensue.
The memo remained posted on the bulletin board for
approximately 10 days, until April 1.
The complaint alleged that, “[o]n about March 22,
2005, Respondent, at its Brooklyn facility, posted an
overly broad rule restricting employees from wearing
Union paraphernalia” in violation of Section 8(a)(1).
The judge failed to address this allegation, and the Gen-
eral Counsel filed an exception. For the following rea-
sons, we find that the Respondent violated Section
8(a)(1) by posting the March 22 memo.
Absent special circumstances, Section 7 entitles em-
ployees to wear union insignia, including union buttons,
in the workplace. Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945); Nordstrom, Inc., 264 NLRB 698, 700
(1982). The burden is on the respondent to prove the
existence of special circumstances that would justify a
restriction. W San Diego, 348 NLRB 372, 372 (2006).

2 All dates are in 2005 unless noted otherwise.
P.S.K. SUPERMARKETS 35
Special circumstances include situations where display
of union insignia might “jeopardize employee safety,
damage machinery or products, exacerbate employee
dissension, or unreasonably interfere with a public image
that the employer has established, as part of its business
plan, through appearance rules for its employees.” Bell-
Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003),
enfd. 99 Fed. Appx. 233 (D.C. Cir. 2004), citing Nord-
strom, Inc., 264 NLRB at 700. The Board has consis-
tently held that customer exposure to union insignia,
standing alone, is not a special circumstance which per-
mits an employer to prohibit display of such insignia.
Meijer, Inc., 318 NLRB 50 (1995), enfd. 130 F.3d 1209
(6th Cir. 1997); Nordstrom, Inc., 264 NLRB at 700. Nor
is the requirement that employees wear a uniform a spe-
cial circumstance justifying a button prohibition. United
Parcel Service, 312 NLRB 596, 596–598 (1993), enf.
denied 41 F.3d 1068 (6th Cir. 1994). Finally, the fact
that the prohibition applies to all buttons, not solely un-
ion buttons, is not a special circumstance. Harrah’s
Club, 143 NLRB 1356, 1356 (1963), enf. denied 337
F.2d 177 (9th Cir. 1964); Floridan Hotel of Tampa, 137
NLRB 1484 (1962), enfd. as modified 318 F.2d 545 (5th
Cir. 1963).
Here, we find that the Respondent has failed to satisfy
its burden of proving that special circumstances justified
its prohibition on the wearing of buttons. The Respon-
dent appears to argue that its button prohibition was jus-
tified because its employees have customer contact, they
must wear uniforms, and the button prohibition is non-
discriminatory. Based on the foregoing precedent, how-
ever, these circumstances do not justify the Respondent’s
complete ban on noncompany-issued buttons, which
would encompass union buttons. Accordingly, we find
that the Respondent violated Section 8(a)(1) by posting
an overly broad prohibition against wearing buttons.
II. DIRECTIVE TO WEAR PINS INSIDE UNIFORMS AND
CREATION OF IMPRESSION OF SURVEILLANCE
In about April 2005, Vice President Noah Katz held a
meeting in the store’s office with several managers and
employees, including employees Barbara Chalk and Luis
Rodriguez. After the meeting, Manager Kathy Mahoney
stopped Chalk and Rodriguez as they were returning to
work. Mahoney told the two employees that they must
wear union pins on the inside of their uniforms.3 She
also told them not to sign union cards and that she was

3 The record does not contain any evidence that Rodriquez or Chalk
was wearing any button when Mahoney uttered this statement.
“always outside taking a smoke break and she can al-
ways see somebody and who they’re talking with.”4
We find that Mahoney’s statements to Chalk and Rod-
riguez violated Section 8(a)(1) in two respects.5 First,
Manager Mahoney’s oral directive that these employees
wear pins only on the inside of their uniforms is unlaw-
fully overbroad. As with the March 22 memo, discussed
above, Mahoney’s directive restricted Chalk’s and Rod-
riguez’ Section 7 right to wear union buttons at work and
was not justified by special circumstances. We also find
that the directive was facially discriminatory because it
restricted the wearing of only union buttons.6
Additionally, we find that the Respondent created an
impression of unlawful surveillance when Mahoney told
Chalk and Rodriguez not to sign union cards and that she
was “always outside taking a smoke break and she can
always see somebody and who they’re talking with.” As
Board precedent makes clear, “[t]he idea behind finding
‘an impression of surveillance’ as a violation of Section
8(a)(1) of the Act is that employees should be free to
participate in union organizing campaigns without the
fear that members of management are peering over their
shoulders, taking note of who is involved in union activi-
ties, and in what particular ways.” Flexsteel Industries,
311 NLRB 257, 257 (1993). Here, Mahoney warned
employees not to sign union cards and immediately
thereafter stated that she can always observe employees’
outdoor conversations. In context, employees would
reasonably interpret Mahoney’s comments as creating
the impression that their union activities were under sur-
veillance. Consequently, we find that Mahoney’s com-
ments violated Section 8(a)(1).7

4 Witness Louis Rodriguez, whom the judge found “entirely credi-
ble,” testified that Manager Mahoney uttered this statement and the
additional statement, described below, in which Mahoney warned Rod-
riguez and Chalk not to be seen speaking with anyone from the Union.
Based on Rodriguez’ credited testimony, we find that Mahoney uttered
these statements.
5 There is no allegation concerning the instruction not to sign union
cards.
6 Chairman Battista agrees with his colleagues that Manager Ma-
honey’s directive was facially discriminatory and that it therefore vio-
lated Sec. 8(a)(1). He need not and does not address whether the direc-
tive was also unlawfully overbroad.
7 Contrary to the judge’s finding, the fact that the union activity on
the Respondent’s premises had been open and easily observable is not
dispositive. Mahoney did not say that she had observed open union
activity in the normal course of her duties. Instead, she told Chalk and
Rodriguez not to sign union cards and implied that she would be ob-
serving the people with whom employees spoke. In our view, an em-
ployee would reasonably fear that Mahoney would spy on their future
union activities, open or not.
The General Counsel excepts to the judge’s failure to find that the
Respondent created an impression of unlawful surveillance in violation
of Sec. 8(a)(1) when Manager Mahoney told employee Rodriguez that
“she was watching [him] through the glass” and “not to be seen speak-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
III. ORAL DIRECTIVE TO NOT BE SEEN SPEAKING
WITH UNION AGENTS
In March or April, employee Rodriguez spoke with
Union Agent Khris Diaz in front of the Respondent’s
store. Diaz gave Rodriguez a union handbook and some
union cards. When Rodriguez returned to the deli de-
partment, Manager Mahoney stopped him and told him
not to be seen speaking with anyone from the Union.
We find that the Respondent’s directive to Rodriguez
not to be seen speaking with anyone from the Union in-
terfered with, restrained, and coerced him in the exercise
of Section 7 activity. See Airport 2000 Concessions,
LLC, 346 NLRB 958 (2006) (employer violated Sec.
8(a)(1) by directing employees not to speak with union
organizers).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, P.S.K. Supermarkets, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning
their union activities.
(b) Initiating an antiunion petition or soliciting its em-
ployees to sign such a petition.
(c) Soliciting grievances from employees and impli-
edly promising to remedy them.
(d) Confiscating union handbooks, union cards, or
other union materials.
(e) Promising benefits, including a 401(k) plan and
medical benefits, to induce its employees to refrain from
joining and supporting a union.
(f) Posting or otherwise maintaining an overly broad
rule that prohibits employees from wearing union buttons.
(g) Directing employees to wear union buttons on the
inside of their uniforms.
(h) Directing employees not to be seen speaking with
union agents.
(i) Creating an impression that it has placed or will
place its employees’ union activities under surveillance.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following action necessary to effectuate the
policies of the Act.

ing with anyone from the Union,” and when Manager Rosado told
Rodriguez that he had observed Rodriguez on a video monitor speaking
with a union agent and that he should not be seen doing so. We find it
unnecessary to pass on these allegations as the findings sought by the
General Counsel would be cumulative and would not affect the remedy.
(a) Within 14 days after service by the Region, post at
its facility in Brooklyn, New York, copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 November 2004.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the 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.
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 had found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate our employees
concerning their union activities.
WE WILL NOT initiate an antiunion petition or solicit
you to sign such a petition.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
P.S.K. SUPERMARKETS 37
WE WILL NOT solicit your grievances or impliedly
promise to remedy those grievances.
WE WILL NOT confiscate union handbooks, union
cards, or other union materials.
WE WILL NOT promise benefits, including a 401(k)
plan and medical benefits, to induce you to refrain from
joining and supporting a union.
WE WILL NOT post or otherwise maintain an overly
broad rule that prohibits you from wearing union buttons.
WE WILL NOT direct you to wear union buttons on the
inside of your uniforms.
WE WILL NOT direct you not to be seen speaking with
union agents.
WE WILL NOT create an impression that we have placed
or will place your union activities under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
P.S.K. SUPERMARKETS, INC.
Tabitha Tyle, Esq., for the General Counsel.
Steven Glassman, Esq. (Grotta, Glassman & Hoffman), for the
Respondent.
Ira Wincott, Esq., for the Union
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on January 17 and 18, 2006.
A consolidated complaint issued on October 27, 2005, alleging
various 8(a)(1) violations against P.S.K. Supermarkets, Inc.
(the Respondent). In addition, the complaint was amended dur-
ing the trial, alleging that Respondent circulated an antiunion
petition indicating “that employees could not support the Un-
ion,” and thereafter “solicited employees signatures” in March
and June 2005.
Respondent filed timely answers to the allegations in the
complaints. Respondent admitted commerce allegations, the
status of the Union, the status of supervisors within the mean-
ing of Section 2(11) of the Act, but denied the status of an al-
leged agent within the meaning of Section 2(13) of the Act.
Respondent also denied all alleging Section 8(a)(1).
I. FINDINGS OF FACT
At all material times, Respondent, a domestic corporation
with a supermarket located at 1420 Fulton Street, Brooklyn,
New York (Bed Stuy facility), is engaged in the operation of
retail supermarkets. During the past year, which period is repre-
sentative of its annual operations generally, Respondent, in the
course and conduct of its operations described above, derived
gross annual revenues in excess of $500,000. During the past
year, which period is representative of its annual operations
generally, Respondent, in the course and conduct of its business
operations described above, purchased and received at its New
York facilities, products and goods valued in excess of $5000
directly from suppliers outside the State of New York.
It is admitted that at all material times, Respondent has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is also admitted that Local 338, Retail, Wholesale and De-
partment Store Union/United Food and Commercial Workers
Union, AFL–CIO (Local 338), and United Food and Commer-
cial Workers Union, Local 342 (Local 343), are labor organiza-
tions within the meaning of Section 2(5) of the Act.
It is also admitted that at all times material, the following indi-
viduals have held positions set forth opposite their names and have
been agents of Respondent, acting on its behalf, and are supervisors
thereof within the meaning of Section 2(11) of the Act.
Noah Katz Vice President
Tony Rosado Store Manager
Kathy Mahoney Front-end Manager
Shane Tranquada Deli Manager
II. CREDIBILITY RESOLUTIONS
I find General Counsel’s main witness, Luis Rodriguez, a
former employee, entirely credible. His testimony covered all
of the allegations set forth in the complaint, except those unfair
labor practices concerning the activities of the outside union
organizers. Rodriguez’ demeanor was excellent. He was ex-
tremely responsive both on direct and cross-examination. His
testimony was very detailed to all questions put to him on direct
and cross-examination. His cross-examination was generally
consistent with his direct-examination. Examples of such testi-
mony will be set forth below.
Counsel for Respondent contends that Rodriguez was preju-
diced against Respondent because he had been terminated for
“stealing” during the course of the union campaign. Respondent
witnesses testified that the so-called “stealing” was that he put
price tags in the isles that were lower in price than they should
have been. There is no evidence that he had made such mistake
before or any mistake during his employment. Moreover, an
unfair labor practice charge was filed with the Board, a com-
plaint issued alleging that his discharge was in violation of
Section 8(a)(1) and (3) of the Act. The unfair labor practice was
settled with Respondent offering reinstatement, which was
declined, and Rodriguez given backpay. Therefore, I find that
Rodriguez was a neutral and extremely credible witness.
In Detroit Newspapers, 342 NLRB 223, 235 (2004), the
judge found Ellis to be a credible witness and stated that “his
direct testimony was clear and straightforward and consistent
with the affidavit he gave. . . . Cross-examination did nothing to
shake his story or raise any doubts as to his veracity.” See also
Dalton Roofing Service, 344 NLRB 870 (2005). The Board
affirmed the judge that Aguilar was a credible witness even
though his recollection was not always clear. On cross-
examination and in response to consistent prodding by Counsel,
Aguilar was generally consistent with his direct examination.
See also, Richard Mellow Electrical Contractors Corp., 327
NLRB 1112, 1125 (1999).
On the other hand, the evidence, as set forth below estab-
lishes conclusively that the admitted 2(11) supervisors were
working along with Noah Katz, Respondent’s vice president in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
a coordinated antiunion campaign to keep the Brooklyn facility
nonunion. All of Respondent’s witnesses essentially denied the
allegations described in the complaint. I find their testimony is
essentially incredible, as set forth below. Accordingly, I find
Respondent’s witnesses are not credible.
On November 15, 2004, Local 338 filed an RC petition seek-
ing to represent employees at the Bed Stuy store. Respondent
contended that the Bed Stuy store employees constituted an
accretion to the preexisting multistore bargaining unit and that
the agreement covered the Bed Stuy store employees, including
the 2(11) supervisors, set forth above. A hearing was held. The
parties stipulated at the hearing that the voting unit classifica-
tion included department managers, assistant managers, cash-
iers, stock clerks, and bookkeepers. Thus, Rosado, Mahoney,
Tranquada, and Hodges, the admitted 2(11) supervisors, were
included in the voting unit. The Regional Director in a Decision
and Direction of Election, rejected the Respondent’s argument
and found that the single-store unit in the above classifications
was appropriate and directed that an election be held. On March
21, 2005, Local 338 withdrew its RC petition, and thereafter
ceased further organizational activities.
Respondent’s facility is located in a plaza called Restoration
Plaza. The main entrances of the various retail stores are inside
the plaza area. The lease between Respondent’s Bed Stuy facil-
ity and the RDC Commercial Center Inc., the lessor, states that
Respondent’s facility includes the store building and the shop-
ping cart corral area. It is admitted that potential customers and
other individuals simply use the shopping cart corral area as a
shortcut between Herkimer Street and Fulton Street. I find that
the shopping cart corral area is part of Respondent’s total
leased premises.
In this decision, I have included Respondent’s Exhibit 2,
which is an evacuation plan that I find to be an accurate over-
view of Respondent’s facility in context with the Plaza. One
can see the various shelf areas where food products can be se-
lected by the customer and the cashier tables where customers
pay for their goods. The cashiers’ tables are exposed to win-
dows which look out on the shopping cart corral area. There is
a fence parallel to the cashier windows, which is the shopping
cart corral area. There is an opening in the gate so that custom-
ers can take out their goods. Respondent admits that that there
is no objection to noncustomers using the shopping cart corral
as a shortcut between Herkimer and Fulton Street.
Counsel for the General Counsel contends that Rosado, the
store manager, told the above-union organizers that they could
not solicit anywhere in the Plaza. In this connection Rosado,
was called as a witness for Respondent.
Rosado credibly testified that he observed on numerous oc-
casions that Local 342 Organizers Augustus Whitt and Khristo-
pher Diaz were in the shopping cart corral area soliciting em-
ployees for Local 342, and that he asked them to leave the area,
which they did. Although I find Rosado not to be a credible
witness as to his other testimony, I do credit his testimony in
this area because it is the most logical and only convenient area
in which to organize.
There is no evidence that Respondent permitted other or-
ganizations to use its property for commercial or nonprofit
organizations. If such were the facts in the instant case the
Board would apply a “disparate treatment analysis.” See Great
Scot, Inc., 309 NLRB 548, 549 (1992), and Price Chopper, 325
NLRB 186 (1997).
Accordingly, I find that the Union was not entitled to organ-
ize in and around the shopping cart corral area. I further find
that Respondent’s policy of permitting noncustomer individuals
to use the shopping cart corral area as a shortcut between Her-
kimer and Fulton Streets is irrelevant.
General Counsel contends that Respondent engaged in
unlawful surveillance of union activities. The evidence estab-
lishes that the only areas where the Local 342 representatives
spoke or met with employees, were inside Respondent’s store,
where Rodriguez spoke to a female union organizer, and in and
around the shopping cart corral area. Respondent was easily
able to observe the Union’s outside activities by simply looking
out the front cashier windows (see R. Exh. 2, the overhead
view), or taking smoke breaks in and around the shopping cart
corral area.
In Hoschton Garment Co., 279 NLRB 565, 567 (1986), the
Board has held that organizers and employees who choose to
engage openly in union activities in and around the employers
premises cannot contend that the employer is engaged in
unlawful surveillance. In footnote 5 on page 567, a line of cases
is cited to support this decision. In Tarrant Mfg. Co., 196
NLRB 794, 799 (1972), the Board adopted the administrative
P.S.K. SUPERMARKETS 39
law judge’s decision which stated, “The notion that it is unlaw-
ful for a representative of management to station himself on
management’s property to observe what is taking place at the
plant gate is too absurd to warrant comment.”
Accordingly, I conclude that Respondent has not engaged in
unlawful surveillance, or created the impression of unlawful
surveillance.
It is alleged that Respondent applied an overly broad rule re-
stricting employees from displaying union pins on their uni-
form.
Rodriguez testified that Kathy Mahoney, a 2(11) supervisor,
told a unit employee, Barbara Chalk and himself that they
would have to wear union pins on the inside of their white uni-
form coat. Chalk did not testify. Rodriguez testified that he
always wore a long white robe with a name tag, but he did not
wear a union pin.
Katz testified Respondent has a dress code because of its de-
sire to convey a neat and clean image to the public. Katz also
testified that on an annual basis, Respondent posts in all of its
stores a dress code reminder to all employees. This posting
states in pertinent part:
Part of Quality and Freshness comes from shoppers seeing
their food handled and prepared by Associates in a clean
neat uniform that includes the company’s logo and/or slo-
gan. Therefore, as we have been doing in the past, all asso-
ciates will be supplied with the appropriate garments based
on the standards below. We appreciate your help setting and
raising these standards and making Foodtown a great place
for our customers to shop. You are the one’s that make
Foodtown the ‘Fresh and Friendly Marketplace.’ We could
not do it without you.
Cashiers are required to wear a blue smock which must be
buttoned. Cashiers are also required to wear a name badge
which is pinned on the smock above the “Fresh and Friendly”
logo. The name badge and “Fresh and Friendly” logo must be
visible at all times to the customers. PSK is reasonable in its
application of the dress code policy.
Mahoney testified that she did ask a cashier, Barbara Chalk,
on one occasion to remove her union pin because it was cover-
ing her name badge and the “Fresh and Friendly” logo. Chalk
did not testify.
Based on the above, I conclude that there is insufficient evi-
dence to establish discrimination in connection with wearing
union pins or other union insignia.
During the course of this trial, the General Counsel moved to
amend the complaint paragraph 7 to read as follows: “In or
about November 4, 2004, a more precise date being presently
unknown, Respondent, by Noah Katz, at the Brooklyn facility
interrogated employees regarding their support for Local 338.”
The amendment was granted.
The Decision and Direction of Election, pursuant to a stipu-
lation between Respondent and Local 338, found the appropri-
ate unit as follows:
All full-time and regular part-time employees, including cash-
iers, stock clerks, assistant managers, bookkeepers, depart-
ment managers and department clerks, employed by the Em-
ployer at its 1420 Fulton Street, Brooklyn, New York, facility,
but excluding confidential employees, guards and supervisors
as defined in the Act.
As set forth above, Respondent admits that Noah Katz, Respon-
dent’s vice president; Tony Rosado, store manager; Kathy Ma-
honey, front-end manager, and Shane Tranquada, deli manager, are
supervisors within the meaning of Section 2(11) of the Act.
Respondent denies that Sheryce Hodges, customer relations
manager, is not a supervisor or agent as defined in Section
2(13) of the Act.
Respondent contends that Rosado, Mahoney, Tranquada, and
Hodges are unit employees, as set forth above, in the Decision
and Direction of Election.
Respondent further contends that conduct by such unit su-
pervisors is not attributable to Respondent.
The Board has long held that conduct by a supervisor who
has been included in the bargaining unit by the parties generally
is not attributable to his employer, absent evidence that the
employer encouraged, authorized, or ratified the supervisor’s
conduct. See Montgomery Ward & Co., 115 NLRB 645, 647
(1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. denied 355
U.S. 829 (1957); AT & K Enterprises, 264 NLRB 1278 (1982);
and Bennington Iron Works, 267 NLRB 1285 (1983).
Rodriguez, a credible witness, as described above, testified
that on or about late November 2004, Katz introduced himself
to Rodriguez. At this time Rodriguez was working in the deli
department. Present with Katz was Shane Tranquada, an admit-
ted 2(11) supervisor, who Respondent contends is a bargaining
unit employee. Katz asked Rodriguez whether he had spoken to
anyone from Local 338 and asked if he had signed a union card.
Rodriguez admitted that he signed a Local 338 card. Both Katz
and Tranquada denied such conversation took place. As set
forth above, I find Respondent’s witnesses are not credible
witnesses.
Under Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985), the test for determining whether an
interrogation violates the Act is not a per se one, but rather,
whether, under the totality of the circumstances, the interroga-
tion restrains, coerces, or interferes with rights under the Act.
Some of the areas one must look to are the background, the
nature of information sought, the identity of the questioner, and
the place and method of interrogation. Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985).
In Marriott Corp., 310 NLRB 1152, 1157 (1993), a similar
interrogation, as the one in issue, took place which was found
to be a violation of Section 8(a)(1). The interrogator was a high
level official of Marriott Corp., the individual questioned was
alone, and the interrogator failed to give any assurances that no
reprisals would be taken.
Accordingly, I find that Katz’ interrogation was a violation
of Section 8(a)(1) of the Act. Moreover, Tranquada’s presence
with Katz establishes that she was acting as an agent of Re-
spondent, rather then a bargaining unit supervisor.
Rodriguez testified that sometime in or about March 2005 at
the customer service desk waiting to get his paycheck, Store
Manager Rosado asked him if he had spoken to any Local 338
representative and whether he had signed a Local 338 card.
Rosado then stated that he would have taken what Noah was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
offering as against what Local 338 was offering. As set forth
below, I find Rosado was acting as an agent for Respondent,
and find such conduct to be an unlawful interrogation, in viola-
tion of Section 8(a)(1). Rossmore House, supra.
Shortly thereafter, sometime in April, Rodriguez credibly
testified that Katz addressed the employees in the deli depart-
ment. He came over and asked us how everyone was doing. He
told us that if anyone needed to get in contact with him, or had
any problem, he was available day or night. Several days later
he then posted up cards with his website, cell phone, and fax
machine number at various locations throughout the store.
Rodriquez credibly testified that prior to the Local 342 organiz-
ing campaign, such cards never existed. I find such conduct to
be an unlawful solicitation of grievances in violation of Section
8(a)(1) of the Act. Desert Toyota, 346 NLRB 118, 126 (2005).
Shortly after the unlawful solicitation of grievances de-
scribed above, Rosado and Sheryce Hodges, customer rela-
tions manager, and an alleged agent, approached Rodriguez
and asked him if he would get together with a group of em-
ployees and tell the Local 342 union organizers outside the
store that they didn’t want a union to represent them. Rodri-
guez declined. I have concluded that Rosado was a supervisor
and agent of Respondent, and Hodges, who accompanied him
was by such action, an agent of Respondent. I find the activi-
ties of Rosado and Hodges constitute an unlawful solicitation
of employees to abandon their union activities and oppose the
Union in violation of Section 8(a)(1). See Progressive Elec-
tric, Inc., 344 NLRB 426, 427 (2005), citing Dentech Corp.,
294 NLRB 929 (l989), and Eastern States Optical Co., 275
NLRB 371, 372 (1985), which states: “It is unlawful for an
employer to collectively initiate or solicit a petition or letter
opposing unionization.”
Shortly after the above solicitation, Hodges admitted during
Respondent’s direct case that she and Kathy Mahoney prepared
an antiunion petition which stated, “We, the workers . . . do not
want to be members of Local 342 or any other union.” Hodges
thereafter approached the employees, asked them to sign the
petition, and accumulated 100 employee signatures. Thereafter
she turned over this petition to one of the admitted statutory
supervisors. She could not recall the specific individual. I find
Hodges’ testimony to be an admission, and an unlawful solici-
tation, in violation of Section 8(a)(1) of the Act. See Progres-
sive Electric, supra.
Either before or after the unlawful solicitation described im-
mediately above, Hodges admittedly engaged in the same con-
duct with another petition. For the same reasons described
above, I find such conduct to be an unlawful solicitation in
violation of Section 8(a)(1) of the Act. See Progressive Elec-
tric, supra.
Shortly after the unlawful solicitations, described above,
Rodriguez credibly testified that he was talking to Union Or-
ganizer Diaz outside the store, by the shopping cart corral, in
front of the cashier windows. Diaz gave him a union handbook
and five union cards. The handbook contained a list of benefits
that the Union would seek if the parties entered into collective-
bargaining negotiations.
When he returned to work Mahoney asked for the handbook
and before he could answer, she then snatched the handbook
containing five blank union cards from him. In this connection
General Counsel asked:
Q. Did you give her the handbook?
A. Yeah, yes and no.
Q. Can you explain what you mean by “yes and no”?
A. Before I actually could respond, she took the book
from my hands and walked into the office.
I find that by taking the union handbook and the union cards,
Mahoney confiscated union materials in order to dissuade their
support from the Union. I find such conduct is a violation of
Section 8(a)(1) of the Act. See Phillips Fibers Corp., 307
NLRB 145, 148, 149 (1992).
Several days after Mahoney had taken the union handbook
from Rodriguez, Katz called a number of employees to meet
with him in his office. Present with him were Rosado and Ma-
honey. Rodriguez credibly testified that Katz asked the em-
ployees whether any of the employees had spoken with, or
signed a card for the Local 342. As set forth above, I find such
conduct constitutes unlawful interrogation in violation of Sec-
tion 8(a)(1) of the Act. Rossmore House, supra.
Katz then took out the union handbook taken from Rodri-
guez by Mahoney and began comparing what he would be will-
ing to give against the Local 342’s proposals. He urged the
employees not to join the Union, because it would slow down
the process of giving a 401(k) plan and medical benefits. I find
by such conduct Respondent promised a 401(k) plan and medi-
cal benefits. I find that the promise of such benefits were an
inducement to refrain from supporting the Union and a viola-
tion of Section 8(a)(1) of the Act. Stanadyne Automotive Corp.,
345 NLRB 85, 93 (2005).
“Under settled Board policy, a grant or promise of benefits
during the critical preelection period will be considered
unlawful unless the employer comes forward with an explana-
tion, other than the pending election, or the timing of such ac-
tion.” Honolulu Sporting Goods Co., 239 NLRB 1277, 1280
(1979) (citing The Singer Co., 199 NLRB 1195 (1972), enfd.
mem. 620 F.2d 310 (9th Cir. 1980), cert. denied 449 U.S.
1034 (1980). “Similarly, an employer cannot time the an-
nouncement of the benefit in order to discourage union sup-
port, and the Board may separately scrutinize the timing of the
benefit announcement to determine its lawfulness.” Mercy
Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002).
“The standard for determining whether the timing of benefit
announcement during the critical period is unlawful is essen-
tially the same as the standard for determining whether the
grant of benefit itself violates the Act.” Id. Thus, the Board
will infer that an announcement or grant of benefits during the
critical period is coercive. However, an employer may dem-
onstrate a legitimate business reason to rebut an inference of
unlawfulness as to the grant of the benefit and/or the timing of
its announcement. Southgate Village, Inc., 319 NLRB 916
(1995).
Considering the entire course of conduct between Respon-
dent and the unit employees, I find that Respondent encour-
aged, authorized, and ratified the unit supervisors so as to lead
employees reasonably to belief that the supervisors were acting
P.S.K. SUPERMARKETS 41
for and on behalf of management. Montgomery Ward, supra.
Accordingly, I conclude that the actions of the statutory super-
visors, described above, were attributable to Respondent.
As set forth above, Local 338 represented the employees of
Respondent’s eight supermarkets for a period of 30 years.1
The decision, set forth above, found that the Bed Stuy store
was not an accretion to Respondent’s eight retail stores.
Shortly after the decision issued, Local 338 withdrew its pe-
tition for election and ceased further organizational activities.
Therefore, I find the Bed Stuy employees were not represented
by any labor organization.
Based on these facts, I also find the admitted 2(11) supervi-
sors to be agents of Respondent and their actions attributable to
Respondent.

1 The deli department employees were represented by Local 342.
CONCLUSIONS OF LAW
1. The Respondent, P.S.K. Supermarkets, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 338, Retail Wholesale and Department Store Un-
ion/United Food and Commercial Workers Union, AFL–CIO,
CLC and United Food and Commercial Workers Union, Local
342, are labor organizations within the meaning of Section 2(5)
of the Act.
3. Respondent violated Section 8(a)(1) of the Act described
below in the Order.
REMEDY
With respect to the 8(a)(1) violations, I shall recommend an
Order requiring Respondent to cease and desist the conduct
described below.
[Recommended Order omitted from publication.]