NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C.  20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Fresh Organics, Inc., d/b/a Real Foods Company, a Wholly-Owned Subsidiary of Nutraceutical Corporation and Nutraceutical Corporation and Adriel Ahern and Joshua Peach and Sarah Genlot-Joslyn and United Food and Commercial Workers Union, Local 648, United Food and Commercial Workers International Union. Cases 20–CA–31416–1, 20–CA–31449–1, 20–CA–31461–1, 20–CA–31664–1, and 20–CA–31953–1

July 24, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On November 18, 2005, Administrative Law Judge James M. Kennedy issued the attached decision.  The Respondents, the General Counsel, and Charging Party Joshua Peach each filed exceptions and a supporting brief.[1]  The Respondents filed answering briefs to the exceptions of both the General Counsel and Charging Party Peach.  The General Counsel filed an answering brief to the Respondents’ exceptions, and the Respondents filed a reply 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 exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modified and set forth in full below.

Briefly, this case involves a nascent union organizing campaign at one of the Respondents’ four San Francisco–area organic grocery stores, located at 24th Street in Noe Valley.  The complaint alleged that the Respondents committed a series of unfair labor practices in response to the organizing campaign, including threatening store closure and job loss in violation of Section 8(a)(1), implementing a service award program in violation of Section 8(a)(1), terminating employees/Charging Parties Adriel Ahern and Sarah Genlot-Joslyn in violation of Section 8(a)(3), and closing the 24th Street store (discharging 29 employees in the process) in violation of Section 8(a)(3).  The complaint also alleged that the Respondents refused to rehire former employee Kim Rohrbach in violation of Section 8(a)(3).

The judge found all of the alleged 8(a)(3) violations and a violation of Section 8(a)(1) in the implementation of the service award program, but dismissed the allegations that the Respondents violated Section 8(a)(1) by threatening store closure and job loss.[3]  Although it was not alleged, the judge also found that the Respondents violated Section 8(a)(1) by downgrading the annual evaluation of Sonja Knaphus.  The Respondents excepted to each of the violations found; the General Counsel excepted to the 8(a)(1) dismissals; and the Respondents, the General Counsel, and Charging Party Joshua Peach all excepted to the judge’s proposed remedy.

We agree, for the reasons provided by the judge, that the Respondents did not violate Section 8(a)(1) by making threats of store closure or job loss,[4] and that the Respondents violated Section 8(a)(3) by terminating Ahern and Genlot-Joslyn.[5]  Although we agree with the judge that the Respondents also violated Section 8(a)(3) by closing the 24th Street store, we rely solely on the reasoning set forth below.  Finally, we reverse the judge’s findings that (1) the Respondents violated Section 8(a)(1) by implementing the service award program and by downgrading Knaphus’ annual evaluation; and (2) the Respondents violated Section 8(a)(3) by refusing to rehire Rohrbach.[6]  We discuss below those findings where our analysis or result differs from the judge’s.

Service Award Program

The organizing campaign began in April 2003,[7] when Ahern, a cashier at the 24th Street store, began discussing unionization with her fellow employees.  By early May, the Respondents were aware of the campaign; a 24th Street assistant manager notified Bruce Remund, Real Foods’ general manager and executive vice president, of the campaign by e-mail on May 2.  On May 22, Remund held a mandatory managers’ meeting, which included a training session on how managers should conduct themselves during the campaign.  Employees began holding their own weekly campaign meetings on May 26.

Also in April, Respondent Nutraceutical, Real Foods’ corporate parent, authorized Remund to extend a length-of-service award to Real Foods’ employees; Nutraceutical had given out the award to its employees since at least 1997.  On June 18, Remund held a mandatory staff meeting at the 24th Street store.  During the meeting, he announced that Real Foods was instituting the award, and that two individuals employed at the 24th Street store would receive one:  Anthony Gadola, a vitamin and beauty department manager, and K’Pu Bahimwakputa, a vitamin department employee.  Gadola and Bahimwakputa received gift cards of $200 and $600, respectively.[8]  Real Foods gave similar awards to 12 eligible individuals at its other locations.  Nutraceutical cancelled the award program on a corporate wide basis in 2004.

The judge found the service award program violated Section 8(a)(1) because of its “timing and announced annual nature” when the program in fact “disappeared the following year.”  The Respondents contend that the service award program was an existing policy of Nutraceutical, that Nutraceutical decided to extend the award program to all of the Real Foods stores before the Respondents were aware of any union activity, and that the cancellation of the program the following year was a corporate-wide decision and not targeted at the 24th Street store.

Analysis

The granting of benefits to employees in the middle of union organizational activity “is not per se unlawful where the employer can show that its actions were governed by factors other than the pending election.”  American Sunroof Corp., 248 NLRB 748, 748 (1980), modified on other grounds 667 F.2d 20 (6th Cir. 1981).[9]  The General Counsel bears the burden of proving, by a preponderance of the evidence, “that employees would reasonably view the grant of benefits as an attempt to interfere with or coerce them in their choice on union representation.”  Southgate Village Inc., 319 NLRB 916 (1995).  If the General Counsel makes such a showing, the burden shifts to the employer to demonstrate a legitimate business reason for the timing of the benefit, such as by proving that the benefit was “part of an already established Company policy and the employer did not deviate from the policy upon the advent of the union.”  American Sunroof, supra at 748; see also Dynacor Plastics and Textiles, 218 NLRB 1404, 1404–1405 (1975) (relying on the fact that the respondent granted an additional half-day holiday for Christmas to employees at all of its locations in finding the grant was lawful); Nalco Chemical Co., 163 NLRB 68, 70–71 (1967) (finding improvements to vacation and holiday benefits did not violate Sec. 8(a)(1) in part because improvements applied corporate wide).  Contrary to the judge, we conclude that the General Counsel failed to meet his burden.

The General Counsel’s case relies principally on the timing of the benefit.  However, the record establishes that the benefit stemmed from Nutraceutical’s decision in the spring of 2003, before it was on notice of the organizing activity, to extend its existing service award benefit to all Real Foods stores in the following quarter.[10]  The General Counsel’s case is further weakened by the fact that the Respondents only gave two awards (including one to a department manager) at the 24th Street store, which employed at least 28 individuals at the time.[11]   Additionally, the Respondents did not target the 24th Street store—rather, the Respondents gave 12 more awards to employees at other locations.   Under these circumstances, we find that the Respondents have proven a legitimate business reason for the timing of the service award, and that the General Counsel has failed to prove, by a preponderance of the evidence, that the 24th Street store employees would reasonably view the service award as an attempt to coerce them in the union campaign.[12] 

Closure of the 24th Street Store

In acquiring the four grocery stores during the spring of 2002, Nutraceutical sought to evaluate the viability of a business that offered organic foods as well as vitamins and supplements.  To that end, Nutraceutical allowed the stores to operate as they had while its personnel learned the organic grocery business.  Beginning in mid-2002, Sergio Diaz, Nutraceutical’s director of marketing and sales, was chiefly responsible for developing a new “concept store,” which would involve remodeling one existing store to serve as a prototype.  The remodeling was estimated to take 6 months to complete—3 months for demolition, planning, and obtaining permits, and 3 months for construction.  On April 22, Diaz completed a demographic study of the neighborhoods served by the four stores, undertaken in order to decide which store to remodel.  The Respondents had initially considered their Sausalito store to be the best choice. 

The Respondents learned of the organizing drive at the 24th Street store in early May.  On August 7, Remund and Diaz visited that store to meet with Store Manager Conal Wilmot.  During that meeting, which took place in Wilmot’s office, employees Jon Burkett and Sonja Knaphus interrupted, stating that they supported unionization and presenting Remund with a list of demands.  The next day, Wilmot called Burkett and Knaphus into his office and accused them of sabotaging him. 

On August 25, Real Foods’ two directors, Remund and Nutraceutical chief financial officer Leslie Brown, met with Diaz and a Nutraceutical counsel and approved a motion to close and remodel the 24th Street store.  On August 28, Remund informed Wilmot that the 24th Street store would be closed that night.  Remund and Wilmot informed the night crew of the closure; other employees were delivered, via an overnight delivery service, notices of termination along with final checks and severance pay.  Six key individuals were retained, while 29 employees were discharged and told they could reapply when the store reopened.  There was no advance notice to the landlords, nor was any notice given to any vendors, who were either turned away or rerouted.  Perishable goods were thrown or given away, and nonperishable goods were transferred to other stores.

Two days later, Diaz spoke with Dave Kloski, the manager of another of the Respondents’ stores.  Kloski asked if the closure was “killing two birds with one stone.”  Diaz responded, “yes, the timing is good for that.”  Kloski also asked about the terminated employees, to which Diaz responded, “f__k ‘em.”

The judge found that the Respondents violated Section 8(a)(3) by the August closure of the 24th Street store.  The judge rejected the Respondents’ assertion that the timing of the closing was based on the organic produce season.  From his own review of the Respondents’ produce sales records, the judge determined that closing at the end of August did not “make[] sense” and that the Respondents should have closed for 6 months of remodeling in October, when produce sales further declined, because May seemed to him to be a better month to reopen the store than March.[13]  The judge also took account of a series of the Respondents’ actions that he found raised serious doubts about their choice of the 24th Street store and their assertion that they made the decision in April.  The judge observed the following: in choosing the 24th Street store, the Respondents were shutting down their only profitable store; they ordered a new awning for the 24th Street store on July 18 and obtained the requisite installation permit on August 21; they hired 16 new employees at that store between April and August, including 4 in August alone; they did not inform the store manager, the employees, the vendors, the customers, or the landlords in advance of the closing;[14] and they did not apply in advance for any permits for the remodeling.  Based on that evidence, the judge ultimately found that the Respondents’ decision to close the 24th Street store was not made until after Burkett and Knaphus “began acting like a union” on August 7.[15]

The Respondents assert that the judge’s conclusion was based on erroneous findings.  They maintain that their behavior was motivated by legitimate business concerns and consistent with industry practice, and that their financial statements indicate the decision to close was well timed.  In particular, the Respondents stress that the evidence shows that union activity played no role in the decision because Remund and Diaz allegedly decided in April to remodel the 24th Street store—before the Respondents were aware of any union activity.  Regardless, the Respondents maintain that they would have closed the 24th Street store in the absence of any union activity, as the demographic study and the financial statements establish that the 24th Street store was the best choice among the four stores to be remodeled. 

Analysis

Although we reach the same conclusion as the judge, we do so for the following reasons.  Rather than looking to the variety of business considerations discussed by the judge (and countered by the Respondents in their exceptions), we instead focus on the timing and manner of the closure in relation to the employees’ union activity. 

We apply the Board’s Wright Line test[16] to determine if the Respondents’ decision to close the 24th Street store was unlawful.  Under this test, the General Counsel must first prove, by a preponderance of the evidence, that the decision was motivated by the employees’ protected concerted activity.  To carry his initial burden, the General Counsel must show that the employees had engaged in protected activity and that the employer knew of the activity.  The General Counsel also must establish that the activity was a substantial or motivating reason for the employer’s action.[17]  If the General Counsel meets this burden, then the burden of persuasion shifts to the employer to prove that it would have taken the same action even in the absence of the protected conduct. 

We agree that the General Counsel met his burden.  There is no dispute that employees were engaged in a union campaign and that the Respondents were aware of their activity as early as May 2.  We also find that the General Counsel established animus.  The judge credited evidence that Remund told two different supervisors that Nutraceutical’s CEO would close a store if it unionized.  That evidence, considered together with the timing of the closure in relation to Burkett’s and Knaphus’ conduct on August 7 as well as the other contemporaneous violations of Section 8(a)(3) in the discharges of Ahern (July 23) and Genlot-Joslyn (June 26), is sufficient to establish animus.  Thus, the burden shifts to the Respondents to show that they would have closed the 24th Street store for remodeling even in the absence of the union campaign.

The Respondents produced a great deal of evidence (including expert testimony and an accompanying report) in an effort to establish that the selection, timing, and manner of the closure were backed by legitimate business concerns and consistent with industry practices.[18]  The Respondents also introduced evidence in an effort to rebut many of the reasons the judge relied on in his decision.[19]  Although we do not second-guess an employer’s business decisions, we find that the Respondents have not met their burden.

Several factors lead us to that conclusion.  First, the Respondents offer no credible explanation for the 4-month lag between the alleged decisionmaking in April and the formalization of that decision in August.  We also agree with the judge concerning the significance of the fact that the formal decision was made and announced within weeks of when Burkett and Knaphus began “acting like a union” and presented the Respondents with a list of demands.  On this point, we find that the preponderance of the evidence establishes that the Respondents engaged in a series of escalating events responding to the employees’ organizing campaign and evidencing unlawful motive, beginning with the Respondents’ awareness of the union campaign and employee meetings (no later than May 2), the unlawful discharges of Genlot-Joslyn and Ahern (June 26 and July 23, respectively), the demands presented by Burkett and Knaphus (August 7), and the closure of the store (August 28).  Finally, the “two birds with one stone” conversation between Kloski and Diaz that took place shortly after the closure strongly suggests that the Respondents were motivated by their employees’ union activity, rather than legitimate business reasons, when they chose to precipitously close the 24th Street store.  This inference is supported by the credited evidence that Remund told two supervisors on separate occasions that Nutraceutical’s CEO would close a store if it unionized.  In light of all those considerations, we find that the Respondents have failed to establish that they would have made the same decision within the same timeframe in the absence of the employees’ union activity.

Knaphus’ Evaluation

Soon after Knaphus and Burkett interrupted the management meeting on August 7, announced support for unionization, and presented Remund a list of demands, Wilmot gave Knaphus a performance review in which he rated Knaphus as “poor” on interpersonal skills; Wilmot explained that the rating was based on Knaphus’ disruption of the August 7 meeting.  Although the Respondents’ evaluation of Knaphus was not alleged as an independent violation of Section 8(a)(1), the judge concluded that the allegation was fully litigated and found the violation based on evidence elicited in connection with the store closure allegation.  The Respondents argue that the judge erred in this regard, as the General Counsel only introduced limited evidence and did not move to amend the complaint.

Analysis

“It is well settled that the Board may find and remedy a violation even in the absence of a specific allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.”  Pergament United Sales, Inc., 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).  The “determination of whether a matter has been fully litigated rests in part on whether . . . the respondent would have altered the conduct of its case at the hearing, had a specific allegation been made.”  Id. at 335.  We find merit in the Respondents’ exception.  The record reflects that the General Counsel asked Knaphus a minimal number of questions regarding her appraisal and did not attempt to introduce the appraisal as an exhibit.  Furthermore, the General Counsel made no attempt to amend the complaint to allege the violation, and there is no other complaint allegation that would have reasonably put the Respondents on notice that this conduct was in issue.  Under these circumstances, we cannot conclude that the Respondents were put on notice that Knaphus’ appraisal was the subject of an alleged violation.  Bouley, Inc., 306 NLRB 385, 386 (1992), supplemented by 308 NLRB 653 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993).

Failure to Rehire Rohrbach

On May 6, 2004,[20] Rohrbach answered the Respondents’ online employment advertisement.  Prior to her termination when the 24th Street store closed, Rohrbach had expressed unhappiness about working for a large corporation, and at least one employee complained to management on multiple occasions about Rohrbach’s attitude.  After the closure, she became involved with an online group (“Reform Real Foods”) and she acknowledged making public statements critical of the Respondents, their management, and their products. 

Although employed, she applied for a retail associate position with Real Foods, sending her resume and a cover letter by email to Kloski.  Her cover letter acknowledged her “vocal opposition to Nutraceutical’s conduct in the whole 24th St affair,” she also stated that she felt “given certain conditions, even [Remund, Diaz, and Nutraceutical’s CEO Bill Gay] are capable of acting in a responsible fashion,” and that Remund and Diaz were not able to “destroy her appreciation for [her former] job.”  On May 25, Rohrbach was interviewed by Remund and Kloski.  Rohrbach wore a union T-shirt and a union button, and she was characterized as “prickly” during her interview.  Remund informed Rohrbach on June 22 that the Respondents would keep her resume on file, but she was not rehired.  In late June, the Respondents began hiring new employees through a contract labor supplier, Aerotek Commercial Staffing, purportedly to mitigate their workers’ compensation risk.  However, Kloski testified that, when he asked Remund if the Respondents were using Aerotek as a way to keep Rohrbach out of the stores, Remund responded that Rohrbach had “something to do with it.”

The judge found that the Respondents began working with Aerotek shortly after the interview in order to “keep Rohrbach out of the store,” that the Respondents provided shifting and additional reasons why Rohrbach was not rehired, and that the Respondents had a policy of denying rehire to former employees of the 24th Street store because “it didn’t want union activists in its system.”  Based on those findings, the judge ultimately found that the Respondents violated Section 8(a)(3) by failing to rehire Rohrbach, finding that the Respondents had not met their rebuttal burden of establishing that they would not have rehired Rohrbach even in the absence of her union activity.  The Respondents argue that they did not rehire Rohrbach because she made disloyal and maliciously untrue statements about the Respondents and their executives before she submitted her application for rehire; she was not suited to the position; and she made it clear through her insulting cover letter and her manner in her interview that she did not have any genuine interest in the position. 

Analysis

We reverse the judge’s finding of an 8(a)(3) violation.  The finding is based primarily on his reasoning that the “Respondents’ policy against unionization overrides any of [its] given reasons” for not rehiring Rohrbach, and therefore “all [ the Respondents’] reasons” for not rehiring Rohrbach, “whether factually accurate or not, simply have no bearing” on the case.  In this, the judge was clearly in error.  An employer is privileged to refuse to hire a disrespectful applicant.  Exterior Systems, Inc., 338 NLRB 677, 678 (2002).  “There is no provision in the Act or in the law developed by the Board that would require an employer to . . . [be] subjected to rude or intimidating conduct.” Heiliger Electric Corp., 325 NLRB 966, 968 (1998).  The record evidence—Rohrbach’s cover letter, in particular—clearly demonstrates rude and disrespectful behavior in a job applicant and does not show that the Respondents seized on such behavior as a pretext for not rehiring Rohrbach.  On this limited basis, we find that Rohrbach’s protected union activity was not the basis for the Respondents’ refusal to rehire her, and we reverse the judge’s finding.[21]

Remedial Exceptions

The Respondents excepted to the judge’s Order requiring that they rehire the discharged employees directly, rather than through a contract labor supplier.  The Board’s usual remedy for an unlawful discharge is restoration of the employee to the position he would have occupied had it not been for the respondent’s unlawful action.  In this case, such restoration means employment with the Respondents, not with a contract labor supplier, in the absence of a showing to the contrary by the Respondent during the compliance process. 

The Respondents also sought to limit the notice-posting to the Respondents’ retail stores in California.  We find merit in this exception.  The judge ordered that the Respondents post notices not only at the California stores directly implicated in this case, but also at “any retail operation [the Respondents] may currently have elsewhere in the United States.”   But the record evidence fails to provide a basis for such an expansive notice-posting requirement.  There is little record evidence at all about the stores outside California, much less evidence sufficient to demonstrate that the Respondents’ unlawful conduct here affected employees at those stores.  Accordingly, consistent with the record evidence and our single-employer finding, we have modified the remedy to require posting of the notice only at Real Foods’ retail operations in California and Nutraceutical’s corporate facility in Utah.[22]

The General Counsel sought modification of the Order to clarify that the Respondents are required to mail notices to all employees who were discharged as a result of the 24th Street store closing.  We have modified the Order in accordance with the General Counsel’s request, as the Board routinely orders mailing of the notice to employees in the event of a facility closure.  See Reigel Electric & Central Electric Services, 341 NLRB 198, 198 fn. 2 (2004); accord: Indian Hills Care Center, 321 NLRB 144, 144 (1996). 

The General Counsel also sought to have the Respondents ordered to displace, if necessary, less senior employees to accommodate the 29 employees who were discharged as a result of the 24th Street store closure.  The judge ordered that the Respondents displace more junior employees to accommodate the two individual discriminatees herein, Ahern and Genlot-Joslyn, but not the 29 discriminatees associated with the 24th Street store closure.  The standard Board remedy for an unlawful termination is full reinstatement of the terminated employee to his former position, if it exists, without prejudice to his seniority or other rights or privileges previously enjoyed.  Accordingly, like the judge, we deem it appropriate to give the 29 employees discharged as a group a right to reinstatement if and when the 24th Street store reopens, and, if there are insufficient positions there, a preferential right of hire at the Respondents’ other San Francisco–area stores.  Had Ahern and Genlot-Joslyn not been unlawfully discharged, we find that they would have been included among those employees terminated upon the unlawful store closure.  Thus, their reinstatement remedy should be no better than that of the 29 employees discharged when that store closed, and we reject the judge’s different treatment of them.[23]

Charging Party Joshua Peach also filed several exceptions to the judge’s recommended Order, seeking various extraordinary remedies as well as a bargaining order.  We find no merit in these exceptions, as the Board’s traditional remedies are sufficient to address the unfair labor practices found.

Amended Conclusions of Law

1. Delete the judge’s Conclusion of Law 5, 6, and 10 and renumber the remaining paragraphs accordingly.

ORDER

The National Labor Relations Board orders that the Respondents, Fresh Organics, Inc. d/b/a Real Foods Company, San Francisco, California and Nutraceutical Corporation, Park City, Utah, a single employer, their officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Discharging or otherwise discriminating against any employee for supporting United Food and Commercial Workers Union Local 648, United Food and Commercial Workers International Union, or any other labor organization.

(b) Closing a part of their business, such as one of their retail stores, in a manner that has the necessary and foreseeable effect of interfering with, restraining or coercing their employees from freely exercising their rights under Section 7 of the Act.

(c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Sarah Genlot-Joslyn, Adriel Ahern, and the 29 discriminatees named below full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.  Unless and until positions are available at the 24th Street store for all of the discriminatees, place those discrminatees for whom jobs are not available on a preferential hiring list for employment at the Respondents’ remaining San Francisco–area grocery stores as jobs become available.

 

Dorothy R. Adams

Sonja (Simon) Knaphus

Sean B. Andrews

Diana H. Kuemmel

Jonathan H. Burkett

Colin R. Lapuyade

Kelly M. Cronin

Greg M. Lashaw

Sharna D. Fey

Michael A. Lopez

Christina D. Fisher

Rita J. Morris

Zoe Friedman-Cohen

Shawn M. Mowell

Charles A. Glover

Ryan P. Newton

Wendy L. Granger

Joshua L. Peach

Shaun M. Hannan

Adam L. Rabinovitz

Adrian J. Hernandez

Kimberly M. Rohrbach

Kristin D. Hornstra

George W. Schulz

Sarianne Huyett

Brian J. Schumacher

Shauna L. Katz

Jennifer A. Stone

Dallas A. Kavanagh

 

 

(b) Make Sarah Genlot-Joslyn, Adriel Ahern, and the 29 other discriminatees named above whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1172 (1987).

(c) Within 14 days from the date of this Order, remove from their files any reference to the unlawful discharges of Sarah Genlot-Joslyn, Adriel Ahern, and the 29 other discriminatees named above, and within 3 days thereafter notify the discriminatees in writing that this has been done and that these unlawful discharges will not be used against them in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at their stores in California and at their facility in Park City, Utah, copies of the attached notice marked “Appendix A.”[24]  Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondents’ authorized representative, shall be posted by the Respondents 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 Respondents 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, either Respondent goes out of business, the Respondent or Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since June 26, 2003. 

(f) Within 14 days after service by the Region, duplicate and mail, at their own expense, copies of the attached notice marked “Appendix B”[25] to all current employees and former employees employed by the Respondents at their 24th Street, San Francisco, California facility at any time since June 26, 2003.  Copies of the notice, on forms provided by the Regional Director for Region 20, shall bear the signature of the Respondents’ authorized representative and shall be mailed to the last known address of each of the employees.

(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply.

    Dated, Washington, D.C. July 24, 2007

 

Peter C. Schaumber,                         Member

Peter N. Kirsanow                            Member

Dennis P. Walsh,                              Member

 

 (seal)            National Labor Relations Board

 

APPENDIX A

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 discharge or otherwise discriminate against any of you for supporting United Food and Commercial Workers Union Local 648, United Food and Commercial Workers International Union, or any other labor organization.

We will not close a part of our business, such as one of our retail stores, in a manner that has the necessary and foreseeable effect of interfering with, restraining, or coercing our employees from freely exercising the rights set forth above.

We will not in any other manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.

We will, within 14 days from the date of the Board’s Order, offer Sarah Genlot-Joslyn, Adriel Ahern, and the 29 employees named below full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.  Unless and until positions are available at the 24th Street store for all of the employees named here, We will place those named employees for whom jobs are not available on a preferential hiring list for employment at our remaining San Francisco–area grocery stores as jobs become available.

 

Dorothy R. Adams

Sonja (Simon) Knaphus

Sean B. Andrews

Diana H. Kuemmel

Jonathan H. Burkett

Colin R. Lapuyade

Kelly M. Cronin

Greg M. Lashaw

Sharna D. Fey