Tops Markets, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 26, 2018

03-CA-192010 (N.L.R.B. Mar. 26, 2018)

JD–20–18
LaGrangeville, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TOPS MARKETS, LLC
and Cases 03–CA–192010
03–CA–196668
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL 464A
Alexander J. Gancayco, Esq., for the General Counsel.
Raymond J. Pascucci, Esq. and (on brief) Mark A.
Moldenhauer, Esq. (Bond, Schoeneck & King, PLLC),
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case was tried in Albany, New
York, on August 7 and 8, 2017 pursuant to a consolidated complaint by the Regional Director
for Region 3 issued on June 21, 2017, and amended at the hearing (the complaint) which alleged
that Tops Markets, LLC (Respondent), violated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with the United Food and Commercial Workers Union, Local
464A (Union or Charging Party) as the exclusive representative of its employees and by failing
and refusing to adhere to a collective-bargaining agreement following the Respondent’s
acquisition of a store located in LaGrangeville, New York. The complaint also alleges that the
Respondent violated Section 8(a)(1) by engaging in unlawful interrogations and unlawful polling
of employees. The complaint was based on an unfair labor practice charge (03–CA–196668) and
an amended charge (03–CA–192010) filed by the Union. The Respondent timely answered the
complaint admitting a substantial portion of the factual allegations, but denying all wrong doing.
The parties were given a full opportunity to participate in the hearing, to introduce
relevant evidence, to call, examine, and cross-examine witnesses, and to file posthearing briefs.
On the entire record,1 including my observations of the demeanor of the witnesses, and after
considering the briefs filed by the Respondent and the General Counsel,2 I make the following

1 Although I include citations to the record in this decision to highlight particular testimony or
exhibits, I emphasize that my findings and conclusions are not based solely on those specific record
citations, but rather upon my review and consideration of the entire record for this case.
2 The Charging Party did not file a brief.
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2
findings of fact,3 conclusions of law, and recommended dispositions.
FINDINGS OF FACT
I. Jurisdiction5
The Respondent is a corporation that operates retail supermarkets in New York and
neighboring States, with a corporate headquarters and place of business in Williamsville, New
York and a retail supermarket in LaGrangeville, New York (the LaGrangeville store). Annually,
in conducting its operations, the Respondent derives gross revenues in excess of $500,000 and 10
purchases and receives at its LaGrangeville store goods valued in excess $5,000 directly from
points outside the State of New York. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find that the Union is a labor organization within the 15
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background20
1. The Respondent’s operations
The Respondent operates approximately 170 retail supermarkets in at least four States,
and employs at least 12,500 employees. The Respondent maintains collective-bargaining 25
relationships and related agreements with several unions covering units of employees in many of
its stores, some of which are longstanding relationships, which includes a longstanding
relationship with the Charging Party. Some employees are not unionized in some of the
Respondent’s stores.
30
The Respondent admits and I find that at all material times the following individuals
employed by the Respondent held the positions listed and were supervisors within the meaning
of Section 2(11) and agents within the meaning of Section 2(13) of the Act: Jack Barrett, Vice
President of Human Resources; Denise Rachow, Human Resources Manager; Kathy Liou,
Human Resources Manager; Tammy Columbo, Store Relations/Payroll Manager; and Jennifer 35
Veronesi, Assistant Store Manager. I further find that Joseph Topini, human resources manager,
who testified at the hearing in that capacity and as keeper of the records, is an agent within the
meaning of Section 2(13).

3 My findings of fact encompass the credible testimony, evidence presented, and logical inferences.
The credibility analysis may rely upon a variety of factors, including, but not limited to, the context of the
witness testimony, the weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the record as a whole. Double D
Construction Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir.
2003). Credibility findings regarding any witness are not likely to be an all-or-nothing determination and I
may believe that a witness testified credibly regarding one fact but not on another. Daikichi Sushi, 335
NLRB at 622.
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3
2. The Union
The Union represents meat, seafood, deli, and fish department workers in upstate New
York. Several union representatives testified at the hearing, including Secretary-Treasurer 5
Richard Whalen, Business Agent John Finn, and Organizing Director Elizabeth Krayl. The
Union has an office in Little Falls, New Jersey. Whalen participates in managing the Union,
which involves corresponding on behalf of the Union with employers throughout the Northeast
and negotiating collective-bargaining agreements. He also participates in organizing employees,
negotiating “after-acquired stores” agreements, and representing current members in grievance 10
procedures and arbitration according to their labor contract.
In about August 2016, Finn began overseeing the Union’s communications with
employees at the Lagrangeville store. Finn was the employees’ contact during the period that
union authorizations cards were collected, as discussed in detail below. 15
3. The bargaining unit
The Respondent admits, and I find, that the following employees of the Respondent (the
unit) constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of 20
the Act:
All full-time and regular part-time employees in the meat, poultry, fish, appetizer
and delicatessen departments in the present and future stores of the employer
[Respondent] within the jurisdiction of the Union in Westchester, Putnam, and 25
Dutchess counties of the State of New York, excluding guards and supervisors as
defined in the Act.
The Respondent admits, and I find, that on about August 8, 2016, as described in detail below,
the Respondent agreed to be bound by the collective-bargaining agreement (CBA) effective from 30
June 19, 2016 to October 31, 2020, which was originally negotiated between Stop & Shop Stores
and the Union, covering stores in Westchester, Putnam, and Dutchess Counties in New York.
(GC Exhs. 5 and 6) The Respondent agreed to recognize the Union as the exclusive collective-
bargaining representative of the unit, which includes employees in all stores that the Respondent
purchased, converted and/or opened in Westchester, Putnam, and Dutchess Counties during the 35
term of the CBA.
The LaGrangeville store is located in Dutchess County, New York, which is within the
geographical coverage of the Union in the unit definition. In January 2017, there were a total of
30 employees performing the work described in the appropriate unit description above. (Tr. 37–40
34, 104–105; GC Exh. 4.)
4. The Respondent’s acquisition of additional stores in August 2016.
The disputes in this case were precipitated by the Respondent’s August 2016 acquisition 45
JD–20–18
4
of six supermarkets from competitor companies, one being the LaGrangeville store. Four of the
stores that the Respondent acquired had previously been operated by the Stop & Shop
supermarket chain and had unionized work forces; two additional acquired stores, including the
LaGrangeville store, had previously been operated by the Hannaford supermarket chain and had
not been unionized.45
After learning of the upcoming acquisitions, union representatives, including Local
President John Niccollai, Recorder Frank Hanley, and Secretary-Treasurer Whalen, spoke with
the Respondent’s representatives about the pending merger of the acquired stores with the
Respondent. On about August 8, 2016, before the corporate acquisitions were finalized later in10
August, the Union and Respondent entered into an agreement setting forth the terms by which
the Respondent would recognize the Union and apply terms of the existing CBA between the
Union and Stop & Shop to employees in specified geographic areas (GC Exh. 5; see text below).
Shortly after the acquisitions were finalized at the former Stop & Shop locations, the Respondent
recognized the Union as the collective-bargaining representative of employees of the Meat, 15
Seafood, Deli, and Prepared Foods departments in three New York stores and applied the
existing CBA.5 The Respondent did not immediately recognize the Union as representing
employees at the former Hannaford locations, including the LaGrangeville store, who
historically had not been unionized.6
20
B. Parties’ Agreements
1. After-acquired stores agreement
On August 8, 2016, the Respondent by Vice President for Human Resources John P. 25
“Jack” Barrett signed an agreement stating the following:
With respect to the Collective Bargaining Agreements between Stop & Shop and the
UFCW Local 464A covering stores in Westchester, Putnam, and Dutchess counties
and the Stop & Shop Agreement between UFCW Local 464A covering stores in the 30
New Jersey, Rockland, Orange, Ulster, and Sullivan countries in New York, effective
June 19, 2016 and expiring on October 31, 2020, Tops Markets hereby agrees to the
following:
1. Tops Markets hereby accepts all wages, hours, terms and conditions of 35
employment of the aforementioned Stop & Shop agreements for all stores
purchased, converted, and/or opened during the term of the Stop & Shop

4 Neither Stop & Shop nor Hannaford are parties to this case.
5 The Respondent recognized the Union as the representative of meat, seafood, deli and prepared
foods departments at its acquired stores in New Paltz, Rhinebeck, and Wapping Falls, New York
locations. The Respondent also recognized UFCW Local 1500 as the representative of nonsupervisory
employees in the remaining departments in the New Paltz, Rhinebeck, and Wapping Falls stores. It
recognized a different union at its location in Gardner, Massachusetts, which appears to be outside the
Charging Party Union’s geographic coverage.
6 The other formerly Hannaford store acquired by the Respondent was in Carmel, New York.
JD–20–18
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agreements and hereby recognize [sic] UFCW Local 464A as the
exclusive bargaining representative pursuant to the terms and conditions
of the Stop & Shop agreements.
2. Tops Markets also agrees to recognize all the members’ seniority both 5
full- time and part-time for all purposes (wages, hours, terms and
conditions of employments [sic], contribution of the various funds, and
seniority, vacation, and sick leave, etc.).
Tops Markets hereby agrees to be bound by the terms and conditions of the 10
aforementioned Stop & Shop agreements through the unexpired term of the
agreements on October 31, 2020. (GC Exh. 5)
The agreement was signed by both Hanley and Whalen for the Union.
15
2. CBA Recognition Clause.
The CBA, which was negotiated originally between Stop & Shop the Union, and by its
terms is effective from June 19, 2016 through October 31, 2020 states in relevant part:
20
Article 1.—Recognition
A. The Employer hereby recognizes the UNITED FOOD AND
COMMERCIAL WORKERS UNION, LOCAL #464A as the exclusive
representative of its meat, poultry, fish, appetizer and delicatessen department
employees, both full time and part time, in the present and future stores of the 25
Employer located within the present and future jurisdictional area of the said local
Union within the States of New Jersey and New York. (GC Exh. 6)
Although at the hearing the group of employees at the LaGrangeville store whose representation
status is at issue was occasionally referred to as “a unit” or “the unit,” it is clear from this 30
recognition clause, from the CBA as a whole, as well as from the record as a whole, that the
employees covered by the CBA constitute a single, multistore bargaining unit rather than
separate single-store units.
C. Union Majority Status at LaGrangeville Store35
1. Authorization card collection
Edward Strack is a journeyman meatcutter at the LaGrangeville store. He worked for
Hannaford and then for the Respondent at the store for 14 years. In summer 2016, he approached 40
a shop steward for the Union at a Stop & Shop location in Beekman, New York, to inquire about
the Union. The steward gave him Union Business Agent John Finn’s contact information, and
Strack contacted Finn. Strack spoke to Finn by phone several times. He met Finn for the first
time on December 28, 2016, when he and two other employees from the LaGrangeville store
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(Greg Pecorella, assistant meat manager, and Greg Sheldon, meat manager)7 met Finn at a coffee
shop. They spoke with Finn about the Union. Finn gave them union authorization cards. Strack
and Pecorella signed the cards there and gave them to Finn. Sheldon took the card and some
pamphlets on the Union’s benefits package to consider but did not sign the card at the meeting.
Finn gave Strack blank authorization cards to bring to the workplace. In relevant part, the cards 5
state the following:
I hereby request membership in the United Food and Commercial Workers Union
Local 464A of the United Food and Commercial Workers International Union,
and desire to have the local union represent me as a collective bargaining agent on 10
matters relating to hours, wages, and conditions of employment. The Constitution
laws, rules, policies and regulations of the above union and its affiliates, and all
amendments thereto shall be binding upon me.
On January 13, 2017, Strack spoke with coworkers about the Union and distributed some 15
blank union authorization cards to them. That day, he collected five cards signed by coworkers
directly from the individuals who signed them, including one from Sheldon. He continued to
discuss the Union with coworkers, hand out cards, and hand out union pamphlets and Finn’s
business cards to accommodate coworkers’ questions. Between January 14 and 23, he collected
at least nine additional cards directly from the employees who signed them. Also in January, he 20
received two cards from Pecorella that had been signed by other employees.8 Strack handed the
cards over to Finn periodically. Finn maintained them in a file secured in the glove compartment
of his car, except when he brought them to the Union office on January 23 and 26 for meetings
with other union representatives. During these meetings, the cards were copied. Organizing
Director Krayl noted the employer on the cards before copying them and returning them to Finn, 25
which was part of her regular practice. Krayl testified that she did not make any other marks on
the cards. Finn eventually submitted the 18 cards (the 16 collected by Strack and Strack’s and
Pecorella’s cards handed directly to Finn in their first meeting) to the Regional Office of the
NLRB. (GC Exhs. 16 to 33).
30
Thus, by January 23, 2017, 18 of the 30 employees who performed the work described in
the bargaining unit description had signed, dated, and submitted to the union authorization cards.
2. Union’s demand for recognition and Respondent’s response
35
After obtaining the 18 signed authorization cards, and determining that they represented a
majority of the unit employees at the LaGrangeville store, the Union delivered by fax and mail a

7 No party argues that these individuals were not employees under the Act notwithstanding these job
titles; Pecorella is listed as a “1st Cutter” in the employee list produced by the Respondent and Sheldon is
included in the same list, which the parties stipulated referred to the 30 employees covered by the unit
description (GC Exh 4).
8 I granted the General Counsel’s pretrial motion to permit authentication of one card by means of
comparison with signatures from the employee’s personnel file. My review of these documents satisfied
me that GC Exh. 33 was a validly signed authorization card. See also GC Exhs. 1(o), 1(p), 8, and 9.
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7
letter dated January 25, 2017, to the Respondent, which was addressed to Vice President Barrett
(GC Exh. 10). The letter demanded recognition of the Union as the bargaining representative of
employees at the store and the application of the CBA, consistent with the parties August 8, 2016
agreement and stated in relevant part:
5
A majority of the non-supervisory employees in the Tops Markets store at 16
John J. Wagner Way, LaGrangeville, NY, have signed authorization cards
designating UFCW Local 464A as their collective bargaining representative. We
will submit those authorization cards for your verification upon request.
10
Under the after-acquired store provisions of our August 8, 2016 Agreement and
the 2016–2020 Stop & Shop Agreement that Tops Markets assumed, the
Employer is now obligated to recognize UFCW Local 464A and apply the terms
of our Collective Bargaining Agreement to the LaGrangeville store. Upon
recognition, the LaGrangeville store shall become part of the multi-store 15
bargaining unit operated by Tops covered by the 2016–2020 Agreement.
Please contact me if you have any questions. (GC Exh. 10)
There is no dispute that the Respondent received General Counsel’s Exhibit 10 on January 25, 20
2017 (Tr. 47; GC Exh. 1(1)). The Respondent did not contact the Union to respond to the
demand for recognition and did not recognize the Union or apply the CBA (GC Exh. 1(1)). The
Respondent did not request to review the cards that the Union offered to make available (Tr. 71,
91–92).
25
Instead, the Respondent determined it would interview employees to investigate the
Union’s claim of majority status, and to uncover whether anything improper had occurred in the
collection of the cards. There is no evidence that the Respondent had any reason to believe the
collection of the cards was faulty or any reason to doubt the Union’s claim of majority support
before it embarked on the investigatory interviews. At the same time, the Respondent also began 30
its own internal union-avoidance organizing plans (Tr. 70–72; GC Exhs. 12, 13, 14, 15). To
prepare for both these efforts, human resources representatives and legal counsel met. They
quickly developed an interview schedule and brought in human resource managers from outside
the LaGrangeville store to help conduct structured interviews of employees. Part of this
preparation included human resource manager Topini calculating whether each employee would 35
receive a lower hourly wage under the CBA compared to their current wage. This calculation did
not include the value of any other features of employees’ compensation packages, such as health
and welfare benefits or pensions. The preparation for the interviews also involved management
evaluating the likelihood/extent of each employee’s union support and assigning a score from 1
to 5 to each employee, which was recorded and provided in an email to those who were 40
conducting the interviews (GC Exh.15). By January 26, a detailed schedule of interviews of 27
employees was prepared to be held on January 27 and 28, 2017 that contained the assigned
scores reflecting management’s perception of each employees’ level of union support (Tr. 352–
355, 471; GC Exh. 15). A list of questions was prepared for each interview that included for
some employees a specific calculation of purported wage rate decrease the employee would 45
JD–20–18
8
receive under the CBA (GC Exh. 7); the interview questions prepared did not include
calculations for purported increases or other changes in employees’ compensation packages
under the CBA. The substance of these interviews is discussed in detail below.
By January 29, 2017 the Respondent determined, as explained in an email from Human 5
Resources Manager Topini, that “many associates who signed cards were not informed of the
effects of signing a Union card, specifically how it would result in a reduction of their hourly rate
in many cases.” (GC Exh. 11.) Topini explained, “It is very important that we increase our union
avoidance activity and continue to communicate to associates the down side to unionizing.” (GC
Exh. 11.) He enclosed a posting described as an informational notice addressing the 10
Respondent’s perspective regarding the perils of card signing to “be posted by the time clock, in
the employee break room and handed out to all associates.” The email further advised the
management team that talking points would be forthcoming. In subsequent emails, Topini sent
managers a prepared form “. . . hopefully to be signed by those associates who now regret their
decision” (GC Exh. 12; see also R. Exh. 29–34); talking points directing managers to be 15
“proactive” in conversations with associates and to “get a better sense of associates
concerns/fears and whether they are likely to support or resist unionization” (GC Exh. 13); and
attaching a notice to employees setting out wage rates in the CBA, the purpose of which was “to
address the pro-union employees’ accusations that we are just trying to scare people with threats
of a pay decrease” (GC Exh. 14). 20
Although the Respondent never availed itself of the opportunity to check the cards to
determine majority status, Topini also advised managers that “The Company continues to
investigate and confirm if [the Union’s claim of majority status] is accurate.” (GC Exh. 11). As
noted above, the Respondent never responded to the Union regarding the demand for 25
recognition, as it took the position it was not obligated to do so. (See GC Exh 1(1).)
3. Validity of cards collected
Although there was much evidence elicited and attorney colloquy at the hearing 30
regarding the authentication and validity of the signed authorization cards, there is a lack of any
evidence that the cards were signed under false pretenses or coercion. No witness was called to
support any assertion that employees were promised anything other than what is set forth on the
face of the cards. Notably, on brief, the Respondent neither argues that the cards were
improperly obtained nor challenges the authenticity of the signatures on the cards.9 As noted 35

9 The Union’s ministerial addition of the identity of the employer on the cards at the office was not
shown to be inconsistent with the employees’ clear intent upon signing the card. See, Traction Wholesale
Center, 328 NLRB 1058, 1058 (1999) (markings of different colored ink and the inclusion of the
employer’s name by someone other than the signatory did not invalidate a properly signed and dated card;
and Parts Depot, Inc., 332 NLRB 670 (2000) (use of different colored ink on cards and union
representative’s inclusion of markings on card after receiving it did not invalidate the card where basic
foundation of intent of signatory was uncontroverted.); see also Zero Corp., 262 NLRB 495, 499 (1992),
enfd. mem. 705 F.2d 439 (1st Cir. 1983) (In reversing the ALJ to find cards valid and admissible despite
handwriting irregularities due to the respondent’s failure to properly object to authenticity at trial, the
Board further explained that the display of different handwriting on the cards, without more, is
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above, the cards state clearly on their face that their purpose is to designate the Union as
collective-bargaining representative. Based on the record evidence, and in light of a lack of any
argument to the contrary raised in the briefs, I confirm my evidentiary rulings at the hearing and
find that all 18 cards were validly signed by employees between January 13 and 23, 2017. I
further find that, in the absence of any showing of coercion or misrepresentation, the 18 cards 5
represent the individual signatories’ intention on the dates they were signed. Goodless Electric
Co., 321 NLRB 64, 66 (1996); Action Auto Stores, 298 NLRB 875, 881 (1990).
The Respondent produced 6 typed forms entitled “Associate Statement” prepared by
the Respondent and signed by employees in the week or so after their structured interviews 10
with managers (on February 2, 3, and 10, 2017) indicating the individual employees wished to
withdraw their support for the Union and that their true sentiments were not reflected in their
signed authorization cards (R. Exhs. 29–34; see also GC Exh. 12). One of the individuals never
submitted a Union authorization card, but still submitted the withdrawal form to the
Respondent (R. Exh. 32). These requests for withdrawal of support for the Union were never 15
delivered to the Union, but maintained by the Respondent (Tr. 505–506, 220–221, 278).10
Employees were not provided copies of the forms. The statements on the forms do not claim
that the collection of the cards was faulty or fraudulent in any manner or that employees were
coerced or misled (R. Exhs. 29–34). I find that, at most, they represent that the five employees
changed their minds about union representation after the Union demanded recognition; this 20
does not have any effect on the Union’s established majority status on the date it demanded
recognition.11 The critical date for determining majority status is the date on which the
bargaining request was received by the employer. Franks Bros. Co. v. NLRB, 321 U.S. 702
(1944). Whether a majority of authorization cards have been signed is assessed as of the time
the Union made its recognition demand. Alpha Beta Co., 294 NLRB 228, 230–231 (1989). 25
Even when uncoerced, employees may not effectively revoke authorization cards in the
absence of notification to the Union before the Union demands recognition. Id.
General Counsel’s Exhibit 7 contains 27 two-page documents with handwritten notes
taken by Respondent’s representatives in the interviews on a list or script of interview questions. 30
The Respondent’s witnesses inconsistently testified that they always stuck to the script and wrote
down what the employees reported to them, but the notes often appear to be shorthand or have no
answers at all. I received these records, but I find them generally to be unreliable hearsay. I do
note, however, that not one of these sets of handwritten notes contains a record that any
employee told the interviewer that he or she was coerced to sign a card, given any promises to 35
sign a card, or misled to sign a card. Thus, I rely on these notes in General Counsel’s Exhibit 7 to
establish, as admissions against interest, that even after the one-on-one interviews that were
purportedly to determine the validity of the Union’s claim of majority support, the Respondent

insufficient to overcome the presumption that the cards were signed on the date appearing on them.)
10 In its brief, the Respondent asserts that “upon information and belief, all but one of the six
employees requested his/her card back from the Union.” R. Br. at 11. There is no evidence in the record
to support this assertion, and the brief fails to refer to any such evidence.
11 Moreover, as discussed below, my finding that the one-on-one interviews were unlawful establishes
that these forms were not signed in the absence of Respondent’s unlawful coercive conduct, and therefore
are unreliable as representations of the employees’ actual, uncoerced intent.
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10
had no reason to suspect that the cards were coerced or based on misrepresentations. The
Respondent asserts only that some employees were not specifically advised what their wages
would be under the established CBA. And, as discussed above, a handful of employees’ support
for the Union may have changed after the Respondent interviewed them and advised them of its
perspective on their wage difference under the CBA. 5
D. Respondent’s One-on-One Interviews with Employees
As noted above, the Respondent held individual meetings with employees following the
Union’s demand for recognition. Its stated purpose of the meetings was to investigate the claim 10
of majority status by the Union. (See Respondent’s answer to consolidated complaint, GC Exh.
1(1); see also Respondent’s Br. at 8). The meetings were structured as interviews with
employees (See GC Exh. 7) and were conducted by managers of the Respondent from within and
outside the LaGrangeville store, including by Human Resource Managers Kathy Liou and
Denise Rachow, Assistant Store Manager Jennifer Veronesi, and Associate Relations Manager 15
Tammy Columbo. The meetings were held during work in one-on-one meetings on Friday,
January 27 and Saturday, January 28. One was also held by phone. As noted above, before the
meetings, calculations had been added to some of the interview scripts to reflect the
Respondent’s perspective that certain employees would lose wages under the CBA. Nineteen of
the 27 sets of notes in General Counsel’s 7 contain notations reflecting the perspective that the 20
individual employees would see decreased wage rates varying from 33 cents per hour to $3.65
per hour.12 The interviews were expected to follow the questions set forth in the interview forms,
including the following questions and interviewer instructions:
 If you were asked to sign a union authorization card, was the significance25
of the card explained to you?
 Did you understand that by signing you were making a legal declaration
that you want to be represented by United Food & Commercial Workers,
Local 464A? [If the card was not explained or the employee did not
understand, ask follow up questions to elicit as many details as possible 30
about who said what, who else was present if anyone, when and where the
conversation(s) took place, and the specifics statements or claims made by
the person(s) who presented the employee with the card.]
 Were you given any promises or assurances in order to encourage you to
sign a union authorization card? 35
 For example, were you told that you will not need to pay initiation fees or
union dues for a certain period of time if you signed an authorization card?
[If yes to either question, follow up to elicit all details.]
 Were you given any false or misleading information to entice you to sign a
union authorization card? [If yes follow up to elicit all details.]40
 [Only for employees whose hourly rate will decrease under the union
contract] For example, did you understand that your hourly rate will

12 The record does not establish whether these calculations were factually accurate.
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decrease by $____ per hour under the union scale, as compared to the
current wage scale for the store? [If the employee did not know this, ask
what their understanding is concerning the pay rate if employees become
covered by the union, ask them to explain the basis for that understanding
(what was said, who said, when), and follow up to elicit other details. ] 5
[Tell the employee that if the information concerning pay rates changes
their opinion, they have the right to ask the union for the card back. (As is
their right if they change their mind for some other reason.)]
 Did you feel pressured, harassed or coerced in any way with respect to
signing a union authorization card? 10
 In other words, did anyone force you to sign, or say you had to sign, or
threaten you in any way unless you signed? [If yes to either question, elicit
details.]
 Did you have any discussions with Greg Sheldon or William Novoa about
signing a union authorization card? [If yes, elicit all details.] 15
 Did you witness or hear about anyone else being threatened, coerced or
tricked into signing a union authorization card? [If yes, elicit details.]
 Is there anything else that you would like to add?
[End interview by thanking the employee for his/her input.]
(GC Exh. 7)20
Despite the Respondent’s detailed inquiries, there is no evidence, either from the notes on
General Counsel’s Exhibit 7 or from testimony at the hearing, that any employee reported to the
Respondent that he or she was given assurances or promises to sign a card, given false or
misleading information to sign a card, felt pressured, threatened, or coerced to sign a card, or 25
knew of another employee feeling pressured, threatened, or coerced to sign a card. Upon hearing
from the Respondent interviewer of the prospect of a lowered wage rate, some employees
reportedly seemed surprised, fearful or upset (Tr. 432, 468).
The hearing testimony is inconsistent regarding whether the interviewers stuck strictly to 30
these questions. The Respondent’s witnesses asserted that they asked all the questions and tried
to record all the information verbatim, but the notes on the pages do not fully corroborate those
assertions, as they often appear to be shorthand or reveal an absence of any notes despite that the
questions were asked. Moreover, the witnesses were not able to independently recall the specific
interviews without referring to the notes in General Counsel’s Exhibit 7. I find, based on the 35
record as a whole, that the interviewers followed the questions in General Counsel’s Exhibit 7 as
guidelines, but did not necessarily read them verbatim, did not necessarily read all of them, and
did not necessarily record everything that was said in the meetings.
Employees Thomas Schembri and George Collins testified that Assistant Store Manager40
Veronesi asked them directly if they signed a union card in the interviews. (Tr. 112–114, 138,
147–149). Veronesi denied doing so, but testified that she followed the questions in the
interview script. (Tr. 382-383, 395, 407, They also testified that she asked them what issues or
problems they were having at work that motivated them to support the Union, which she also
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denied. I credit Schembri and Collins over Veronesi. Schembri and Collins testified in a straight
forward and sincere manner and appeared to give equal effort to responding to questions on
direct- and cross-examination. It is apparent from the structure of the interview form, the emails
setting forth the Respondent’s union-avoidance efforts, and the pre-interview ratings prepared
indicating the likelihood of union support, which was included in the schedule of interviews sent 5
to management representatives, that a purpose of the interviews was to collect information about
employees’ union sentiments and about who had been involved in collecting cards. Although
ultimately Veronesi admitted that she reported back to Topini that at least one individual did not
sign a card was initially evasive in her response to questioning about reporting back to Topini.
She further admitted that she understood she was not supposed to directly ask if someone signed 10
a card. She performed 11 interviews and her memory was not specific regarding the details of
distinct interviews and she relied on referring to her notes in General Counsel’s Exhibit 7 rather
than her independent memory, making her testimony less reliable than that of Schembri and
Collins. Moreover, as I discuss below, several of the interview questions, whether by design or
due to poor grammatical structure, are difficult for anyone to answer without revealing whether 15
one signed a card. Likewise, I find it would be difficult for an interviewer to paraphrase such
questions without at least on some occasions asking the intended question—the question
admittedly she understood she was not supposed to ask.
Before conducting the interviews, employees were given a form entitled “Pre-Interview 20
Statement and Employee Acknowledgment.” (R. Exhs. 1–28). Employees were given the form
to review, and some interviewers explained the form to the employee. The form states that the
Respondent is investigating the Union’s claim of majority status and that the purpose of the
interview is to ask questions about that. It also states that the meetings are voluntary and can be
concluded at any time by the employee, and that there will be not retaliation based on the 25
answers, lack of answers, or choice not to participate. All the employees proceeded with the
interviews; all the in-person interviewees signed the statement and acknowledgement form.
ANALYSIS
30
I. Alleged Failure to Recognize and Bargain in Violation of Section 8(a)(5) and (1)
A. Legal Framework
The Board balances the statutory interests of promoting stable labor relations and 35
protecting individual employee choice in many of its established legal doctrines. In Houston
Division of the Kroger Co., 219 NLRB 388, 388–389 (1975), and in subsequent cases, the Board
established a framework for unions and employers to lawfully enter into valid, enforceable
“after-acquired stores” agreements, by which the parties agree that the employer will recognize
the union and apply an existing collective-bargaining agreement to a new group of employees 40
upon acquiring a new facility or operation. Breaching such agreements may violate of Section
8(a)(5) and (1) of the Act. Id. In establishing this legal doctrine, the Board accommodated the
need for individual employee choice with the rights of the parties to agree to include employees
in a newly acquired facility within an established bargaining unit by holding that “after-acquired
stores” agreements constitute a waiver of the employer’s right to a Board election, as long as the 45
JD–20–18
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union has a valid card majority among the new group of employees (or otherwise objectively
demonstrates majority support). Id. Comparable to an accretion situation, the Board requires that
the Union demonstrate majority support within the new group of employees to be merged into a
preexisting unit. Id. Thus, in Kroger, and subsequent cases applying Kroger, the Board has found
that the employer violated Section 8(a)(5) by refusing to honor a contract clause requiring newly-5
acquired stores be covered by the existing contract, where the union had proof of card majorities
in those stores. Alpha Beta Co., above at 228, 229–230 (1989); see also, Raley’s, 336 NLRB 374,
375–378 (2001) (affirming the Kroger doctrine, and remanding for further proceedings to
determine whether the union had majority support). The Board has confirmed that when, like
here, the employees of newly organized or acquired store are to be merged into a multistore 10
contractual bargaining unit, after-acquired store agreements are mandatory subjects of bargaining
and failing to honor the agreements is a repudiation of contract that violates Section 8(a)(5) of
the Act. See Supervalu, Inc., 351 NLRB 948, 950 (2007) (Although the Board found the parties
agreements in this case did not establish that breach of the after-acquired clause was an 8(a)(5)
violation, it confirmed that when there exists a multistore unit, breach of the after-acquired stores 15
clause may violate Sec. 8(a)(5)). Compare Shaw’s Supermarkets, 343 NLRB 963 (2004), in
which the Board considered the dismissal of an RM petition pursuant to an after-acquired stores
agreement, and remanded the issues to the Regional Director for further processing, reasoning
that the terms of the parties’ agreement did not establish clearly the definition of the bargaining
unit, and particularly, whether there were multiple store-specific units or one, multistore unit, 20
and that there was an absence of information in the record regarding the appropriateness of the
proposed unit.13
B. Application to the Parties’ Agreements and the LaGrangeville Store Employees
25
Consistent with the General Counsel’s arguments, I find that the wording of the after-
acquired stores agreement in this case is clear. The period of time covered under the agreement is
clear: June 19, 2016 through October 31, 2020. (GC Exh. 5.) The definition of the bargaining
unit and its geographical scope are clearly set forth in both the agreement and the existing CBA
(GC Exhs. 5 and 6). The employees at issue in this dispute clearly fall within this unit definition. 30
The agreement clearly sets forth that the Respondent must apply the terms of the existing CBA to
employees who otherwise belong in the bargaining unit.
Although the parties’ after-acquired stores agreement clearly anticipates that the
Respondent will recognize the Union as the exclusive representative for collective bargaining of 35
employees in its new stores, the Respondent correctly points out that the agreement lacks an
explicit designation of an agreed-upon method for the Union to demonstrate its majority support
among employees in a newly acquired store. Demonstration of union majority status by card
check of authentic union authorization cards is an acceptable method consistently recognized by

13 In Shaws, the Board panel discussed that whether a contract provision is clear and unequivocal is a
fact-specific analysis, and further suggested an intention to reconsider whether public policy
considerations might outweigh an employer’s private agreement not to hold an election pursuant to the
Kroger doctrine. As the case was remanded to the Regional Director and the Board did not specifically
revisit this policy question in subsequent review of this or other cases, the questions raised by the Board
in Shaws are not precedential and do not disturb the Board’s holding either in Kroger or cases relying on
Kroger.
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the Board as an appropriate method to trigger recognition obligations pursuant to an after-
acquired store clause. Kroger, above at 388; Raley’s, above at 378; Alpha Beta Co., above. The
absence of specificity in the agreement regarding the method of demonstration of majority
support does not render an otherwise clear after-acquired stores agreement fatally ambiguous.
Kroger, above. The agreement also does not explicitly waive the Respondent’s right to file a 5
representation petition. However, the Board has consistently held that after-acquired stores
agreements implicitly contain a waiver of the employer’s right to a Board election, because
without such a waiver they would have no meaning. Kroger, above at 388-389; Alpha Beta Co.,
above at 229. Therefore, it is of no consequence on the facts of this case that there is no explicit
waiver of the right for the Respondent to demand an election.14 Id. 10
The record establishes that the Union obtained evidence of majority support by collecting
18 signed authorization cards from a majority of the 30 unit employees at the LaGrangeville
store by January 23, 2017. The Union in its demand for recognition and bargaining on January
25, 2017, asserted it had proof of majority status in the form of signed cards and that it would 15
make that evidence available to the Respondent upon request (GC Exh. 10). Rather than
investigate whether majority status existed by examining the cards, or contacting the Union at
all, however, the Respondent failed to review the Union’s evidence and embarked on an
“investigation” of the card-collecting process by interviewing all employees individually. At the
same time, it planned and engaged in a union-avoidance campaign. In this context, the 20
Respondent did not alleviate itself of its contractual obligation to recognize the Union and apply
the terms of the collective bargaining agreement by failing to review the cards. I find that its
decision to interview employees individually about their experiences with card collecting in an
absence of any suggestion of wrong-doing, coercion, or misrepresentations by the Union, and in
an absence of having reviewed the objective evidence of majority support is inconsistent with its 25
obligation to engage in good faith consultations with the Union pursuant to its after-acquired
stores Agreement and its established CBA. Even though the representation of employees at the
LaGrangeville store may have been in dispute, the Respondent was obliged to deal with the
Union in good faith based on its established collective-bargaining relationship. Asserting that it
was “investigating” the validity of the Union’s claim of majority support was disingenuous in a 30
context where the Respondent had not bothered to review the evidence of majority support. What
was it investigating if it did not begin with consideration of the Union’s evidence of majority
support? I find that the Respondent cannot assert that it lacked knowledge of the Union’s
majority support by purposefully refusing to review the signed authorization cards and evaluate
their significance. See Alpha Beta Co., above at 229 (reasoning that without any evidence of 35
impropriety or misconduct in solicitation of the authorization cards, the respondent clearly

14 There is no evidence on this record that any representation petition was filed or is pending
regarding the unit employees at the LaGrangeville store and so none is before me. The Respondent freely
and explicitly entered into the after-acquired stores agreement on August 8, 2016 just before acquiring the
store. Therefore, the Respondent’s argument the Union’s majority status among this group of employees
should be determined by a Board-conducted election is unfounded. The Respondent’s policy argument
that election waiver agreements in general should be found invalid by the Board is misplaced here and
strikes me as insincere where the Respondent freely and consciously entered into the agreement it is
asking the Board to find invalid. Moreover, the Respondent’s simple assertion that these agreements are
fundamentally unfair presents no arguments not already considered by the Board in the Kroger line of
cases.
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breached its obligations to recognize the union pursuant to the after-acquired stores clause by
flatly refusing to review the proffered evidence of majority support); see also J. T. Thorpe &
Son, Inc., 356 NLRB 822 (2011) (union's offer to show signed authorization cards to employer’s
bargaining representative adequate despite employer’s decision not to inspect them in the context
of union’s conversion from Section 8(f) to Section 9(a) representative based on majority support 5
for the union); cf. Supervalu, Inc., above (respondent’s refusal to review cards did not violate
Sec. 8(a)(5) even though it may have breached the parties agreement, where separate, additional
stores bargaining units were not shown to vitally effect the interests of the employees in the unit
covered by the existing agreement.) Therefore, I attribute knowledge of the Union’s majority
status as of the Union’s offer to share its evidence of support with the Respondent received on 10
January 25, 2017. Alpha Beta Co., above.
Based on the above, and my finding that the the18 cards were authentic and constituted a
valid demonstration of majority support for the Union as of the January 25, 2017, the day the
Respondent received the Union’s demand for recognition and bargaining, I conclude that the 15
Union was the exclusive collective-bargaining representative of the employees at the
LaGrangeville store included in the multistore bargaining unit of meat, poultry, fish, appetizer
and delicatessen departments, as defined in the CBA pursuant to Section 9(a) of the Act as of
January 25, 2017. By failing to recognize the Union as the exclusive collective-bargaining agent
of the unit employees at the LaGrangeville store, and by failing to apply the existing terms and 20
conditions of employment agreed to in the existing CBA, the Respondent violated Section
8(a)(5) and (1) of the Act.
II. Alleged Unlawful Interrogations and Polling in Violation of Section 8(a)(1)
25
The General Counsel argues that the Respondents’ one-on-one interviews with
employees in late January 2017 were unlawful under two legal theories: (1) that they constituted
coercive interrogations and (2) that they involved unlawful polling. I find the Respondent
violated Section 8(a)(1) pursuant to both legal theories.
30
As a threshold issue, I find that the Respondent’s reliance on having initially explained
the purpose of the interviews, assured employees that their participation in the interviews was
voluntary and that there would be no retaliation for participation is misplaced. The Respondent
argues that it was entitled to conduct the interviews pursuant to the protections outlined in
Johnnie’s Poultry Co., 146 NLRB 770 (1964). However, this holding in Johnnie’s Poultry35
applies to situations in which the Respondent, or most often its legal counsel, is faced with the
need to ask employees about protected or union activity to prepare for litigation. Here, no
litigation was pending until the Union filed a charge after the Respondent conducted the
interviews. The Respondent cannot retroactively reframe the interviews as preparation for
litigation, when, in fact the interviews themselves were part of the reason litigation ensued. The 40
question pending regarding whether the Union enjoyed majority support sufficient to trigger a
bargaining obligation pursuant to the parties’ contracts was a factual one, one which the
Respondent avoided even addressing by failing to review the Union’s evidence of support.
Moreover, the purpose of the interview meetings was not fully explained to the employees in the
Pre-Interview Statement and Employee Acknowledgment that employees signed before the 45
interviews were commenced (R. Exhs. 1–28). I have found above that in addition to any
JD–20–18
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purported purpose in investigating the Union’s claim of majority support for the Union, the
Respondent clearly intended to use, and indeed did use, the meetings to solicit information from
employees regarding who supported the Union and why, and to further its union-avoidance
efforts by persuading employees that they were better off without the union contract. Therefore,
even if it were to appropriately apply in this case, the signed statements fall short of the 5
requirement of Johnnies’s Poultry to advise employees of the actual purpose(s) of the
investigatory meetings in order to lessen the coercive effect of the meetings.
The Board determines whether an employer’s questioning of an employee about union
activity violates 8(a)(1) by considering whether, under all the circumstances, the interrogation 10
would reasonably tend to restrain, coerce, or interfere with Section 7 rights. Rossmore House,
269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). Among factors considered are: (1) the questioner’s identity, including
their position of authority; (2) the place and method of interrogation; (3) the background of the
questioning, including the context of unfair labor practices; (4) and the nature of the information 15
sought; and (5) whether the employee is an open union supporter. Scheid Electric, 355 NLRB
160 (2010); see also Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (above factors described).
The Board also considers whether the employees responded truthfully, as evasive or inaccurate
responses may tend to indicate a tendency of the questioning to intimidate or coerce. Westwood
Health Care Center, a Division of Medcare Associates, Inc., 330 NLRB 935, 939 (2000). These 20
factors are not to be mechanically applied, and are not the only factors the Board considers in
evaluating the totality of circumstances. Rossmore House, supra, fn. 20.
Based on the above, I find that under all the circumstances the Respondent’s interviews
were unlawfully coercive in violation of Section 8(a)(1). The interviews took place in direct 25
response to collection of union authorization cards while recognition of the Union was pending,
and it involved asking employees about the signing of union authorization cards by the
employees and their coworkers, and about their communications with the Union. The
Respondent simultaneously engaged in “union-avoidance” efforts, confirming the context of the
interviews taking place during an organizing drive. Significantly, the content of the interviews 30
was directly related to the protected activity of conversations with the Union, signing union
authorization cards, and talking to other employees soliciting union authorization cards. During
the interviews, the Respondent solicited employees’ views regarding the Union by asking them
to respond to the Respondent’s calculations about their purported pay cuts. Significantly, they
did not either reveal to employees or solicit opinions from employees about calculations that may 35
have revealed pay increases (Tr. 328). See, e.g., SAIA Motor Freight, Inc., 334 NLRB 979, 980
(2001) (Interrogations that constitute “a pointed attempt to ascertain the extent of the employees’
union activities” are unlawful.) Moreover, the questioning contained leading and, at times,
loaded questions that would cause an employee to reveal his or her union sentiments (GC Exh. 7).
Take the very first question: “If you were asked to sign a union authorization card, was the 40
significance of the card explained to you?” This is clearly a loaded question. It calls for a “yes” or
“no” answer; yet, by answering either way the employee reveals that he or she was asked to sign a
card. In order to not admit to having been asked to sign a card, the employee must challenge the
conditional premise of the question, itself difficult to do with a senior management representative
in a formal setting, and might say something like, I wasn’t asked to sign a card, which is an 45
awkward answer because, as I noted, the question calls for a “yes” or “no” answer. And of course,
JD–20–18
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even answering in that way reveals whether the employee was asked to sign a card. The hearing
testimony as well as the notes on General Counsel’s 7 indicate that this question also elicited
revelations that employees either had or had not signed a card from some employees. Whether
this was intended or a consequence poor draftsmanship is not determinative in an 8(a)(1)
allegation, where the assessment is whether the questioning had a tendency to coerce employees. 5
The interviews were conducted by store managers and upper-level managers from outside
the store and not known to employees. The interviews took place during work time in the human
resources office with the door closed. Employees were called individually to the meetings from
the work floor, often over the intercom, which was an unusual experience. Some employees 10
exhibited emotional reactions to the interviews, lending credence to the intimidation and
coercion of the experiences. (Tr. 432, 468.) As previously mentioned, despite never signing a
card or communicating with the Union, one employee acknowledged signing a union card during
his interview and followed up by lying and signing a form given to him by Respondent revoking
his nonexistent card. (R. Exh. 32; GC. Exh. 16–33.15
Moreover, the managers doing the interviews took notes, reflecting that they were
inquiring and collecting information from employees about their union activity. The Respondent
specifically kept track when they learned that an employee signed a card (Tr. 70). In the
following week, the employer’s union-avoidance campaign literature then reflected some of the 20
answers to the interview questions, revealing the Respondent’s use of the so-called investigation
for its union-avoidance campaign. The element of implied surveillance and encouragement to
oppose the union in the interviews supports my finding that the interviews were unlawful
interrogations. See Hercules Automotive, Inc., 285 NLRB 944, 949 (1987) (an employer violates
8(a)(1) by interrogating an employee about his union sympathies in the context where, “[i]ts 25
purpose was to induce and convince the employees” to oppose the union.)
Turning to the unlawful polling allegation, the Respondent argues that the questioning
was simply not polling. I disagree. As I have already found, the questioning was part of the
Respondent’s union-avoidance campaign. Any assertion that the Respondent was entitled to 30
investigate the validity of the Union’s claim of majority support by this method in this context is
unsupported by Board precedent. Regardless, I have credited the testimony of two employees
(Schembri and Collins) testimony that they were directly asked whether they signed union cards.
(See Tr. 113, 138.) The Board has long-held that polling employees about their union support is
inherently coercive, and the Board allows it only under very limited circumstances and in a very 35
limited manner. For polling to be lawful, all of the safeguards under Struknes Construction Co.,
165 NLRB 1062 (1967) must be met. See Vista Del Sol Health Services, 363 NLRB No. 135,
slip op. at 21 (2016):
Absent unusual circumstances, the polling of employees by an employer will 40
violate Section 8(a)(1) of the Act unless all of the following safeguards are
observed: (1) the purpose of the poll is to determine the truth of a union's claim of
majority, (2) this purpose is communicated to the employees, (3) assurances
against reprisal are given, (4) the employees are polled by secret ballot, and (5) the
employer has not engaged in unfair labor practices or otherwise created a coercive45
atmosphere. Struksnes Construction Co., 165 NLRB 1062, 1063 (1967); see also
JD–20–18
18
Johnnies Poultry 146 NLRB 770, 775 (1964); HTH Corp., 356 NLRB 1397,
1404 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012). “[A]ny attempt by an employer
to ascertain employee views and sympathies regarding unionism generally tends
to cause fear of reprisal in the mind of the employee if he replies in favor of
unionism and, therefore, tends to impinge on his Section 7 rights.” Struksnes 5
Construction. Co., supra at 1062.
Thus, pursuant to Struksnes, polling employees about their union sympathies violates Section
8(a)(1) of the Act if the polling is performed without a secret ballot or in a context of unfair labor
practices or a coercive atmosphere. Clearly, one purpose of the interviews was to assess the level 10
of union support of each employee, as the Respondent assigned its representatives collective
judgment of the level of support on a scale of 1 to 5 and interviewers evaluated and reported their
assessments to upper management regarding each employees’ union support to the extent they
had d(Tr. 482). Here, the polling of employees’ sympathies was neither by secret ballot nor in a
context free of unfair labor practices, and it constituted unlawful polling in violation of Section 15
8(a)(1).
Therefore, I find the Respondent violated Section 8(a)(1) by its investigatory interviews of
employees regarding the union authorization card collection under both legal theories argued by
the General Counsel. 20
CONCLUSIONS OF LAW
1. The Respondent, Tops Markets, LLC, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. 25
2. The Union, United Food and Commercial Workers Union, Local 464A, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees about their union activities, their 30
communications with the Union, their support of the Union, and the union activities of their
coworkers, the Respondent violates Section 8(a)(1) of the Act.
4. By coercively polling employees about their support of the Union and their signing of
authorization cards, the Respondent violated Section 8(a)(1) of the Act.35
5. The Union has been the exclusive representative for the purposes of collective
bargaining of the employees in the following bargaining unit pursuant to 9(a) of the Act:
All full-time and regular part-time employees in the meat, poultry, fish, appetizer and 40
delicatessen departments in the present and future stores of the Respondent within the
jurisdiction of the Union in Westchester, Putnam, and Dutchess counties of the State
of New York, excluding guards and supervisors as defined in the Act.
6. By failing and refusing to recognize the Union as the exclusive collective-45
bargaining representative of unit employees, and by failing to apply the existing collective-
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19
bargaining agreement at the LaGrangeville store upon the Union’s demand, the Respondent
has been violating Section 8(a)(5) and (1) of the Act since January 25, 2017.
7. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act. 5
REMEDY
Having found that the Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, the Respondent shall be ordered to cease and
desist from engaging in such conduct and take certain affirmative action designed to effectuate 10
the policies of the Act. The Respondent is ordered to apply the terms of the existing collective-
bargaining agreement with the Union covering the bargaining unit that includes employees at the
LaGrangeville store.
The Respondent must apply the terms of the collective-bargaining agreement 15
retroactively to January 25, 2017. The Respondent must make employees whole for any loss of
earnings and other benefits they may have suffered due to the Respondent’s unlawful refusal to
apply the terms and conditions of employment set forth in the parties’ existing collective-
bargaining agreement as agreed to on August 8, 2017. The make-whole remedy shall be
computed in accordance with Ogle Protective Services, 183 NLRB 682 (1970), with interest at 20
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent will also be ordered to
preserve records necessary to determine the make-whole remedies. The remedial order shall not
be interpreted to require or authorize the Respondent to recoup any overpayments from
employees for any wages and benefits already paid to employees that may be inconsistent with 25
the existing collective-bargaining agreement, absent the Union’s consent.
The Respondent must bargain on request with the Union as the exclusive collective-
bargaining representative of employees in the appropriate bargaining unit and embody any
understanding reached in a signed agreement. The Respondent is required to meet to negotiate 30
with the Union at reasonable times and reasonable places. An affirmative bargaining order is
appropriate in this case, as it is consistent with the parties’ agreements and consistent with the
demonstrated uncoerced desire of a majority of employees in the unit at the Respondent’s
LaGrangeville store to be represented by the Union. Any evidence of loss of support in this
record occurred directly after the unlawfully coercive actions of the Respondent. 35

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.15
ORDER40
Respondent, Tops Markets, LLC, LaGrangeville, New York, its officers, agents, successors, and

15 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.
JD–20–18
20
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union activities, their 5
communications with the Union, their support of the Union, and the union
activities of their coworkers.
(b) Coercively polling employees about their support of the Union and their
signing of authorization cards.10
(c) Refusing to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in the unit set forth
below:
15
All full-time and regular part-time employees in the meat, poultry, fish,
appetizer and delicatessen departments in the present and future stores of
Respondent within the jurisdiction of the Union in Westchester, Putnam, and
Dutchess counties in the State of New York, excluding guards and supervisors
as defined in the Act.20
(d) 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.25
(a) Recognize and, upon request, bargain collectively with the Union as the
exclusive representative of the employees in the unit described above.
(b) Upon request, apply and extend to the unit employees in its LaGrangeville, New30
York store, as part of the appropriate unit, the existing collective-bargaining
agreement it has with the Union, with retroactive effect from January 25, 2017,
the date of the Union’s demand for recognition.
(c) Make employees whole for any losses in wages and benefits suffered since 35
January 25, 2017 as a result of the unlawful failure to apply the existing
collective-bargaining agreement. This Order does not require or authorize the
Respondent to recoup any overpayments from employees due to the retroactive
effect of the existing collective-bargaining agreement, absent the Union’s
consent.40
(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 Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including45
an electronic copy of such records if stored in electronic form, necessary to
JD–20–18
21
analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in LaGrangeville,
New York, copies of the attached notice marked “Appendix.”16 Copies of the
notice, on forms provided by the Regional Director for Region 3, after being 5
signed by the Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the 10
pendency of these proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at that facility at any time since January
25, 2017.15
(f) Within 21 days after service by the Region, file with the Regional Director of
Region 3 a sworn certificate of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply with the
provision of this Order.20
Dated at Washington, D.C., March 26, 2018

Elizabeth M. Tafe25
Administrative Law Judge

16 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
V, --(1,5z--
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 refuse to recognize and bargain collectively with the United Food and
Commercial Workers’ Union, Local 464A (the Union), as the exclusive representative of our
employees at our LaGrangeville, New York store as part of the bargaining unit noted below
with respect to wages, hours, or other terms and conditions of employment:
All full-time and regular part-time employees in the meat, poultry, fish,
appetizer and delicatessen departments in the present and future stores of the
Employer within the jurisdiction of the Union in Westchester, Putnam, and
Dutchess County excluding guards and supervisors as defined in the Act.
WE WILL NOT unlawfully question you about your Union activities and sympathies or
about the Union activities or sympathies of your coworkers.
WE WILL NOT unlawfully conduct a poll of employees regarding the level of support for the
Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, upon request, bargain, with the Union and also, upon request,
apply our 2016-2020 collective-bargaining agreement with the Union to the employees in
our LaGrangeville, New York store as part of the multistore appropriate unit described
above.
WE WILL make our employees whole for any losses suffered as a result of our refusal to
recognize the Union.
TOPS MARKETS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also
obtain information from the Board’s website: www.nlrb.gov.
Niagara Center Building., 130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2465
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-192010
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
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, (518) 419-6669.