BOZZUTO'S, INC.

National Labor Relations Board - Administrative Judge Opinions

Jun 25, 2015

01-CA-115298 (N.L.R.B. Jun. 25, 2015)

JD(NY)–27–15
Cheshire, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BOZZUTO’S, INC.
And Case Nos.
01–CA–115298
UNITED FOOD AND COMMERICAL 01–CA–120801
WORKERS UNION, LOCAL 919
Jo Anne P. Howlett Esq., Counsel for
the General Counsel.
Miguel A. Escalera Jr. Esq., and Diana
Garfield Esq., Counsel for the Respondent.
J. William Gagne Jr. Esq., Counsel for the
Charging Party.
Michael Petela, Jr., Esq., Counsel
for Todd McCarty.
Decision
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this case on January 29 and 30
and March 18 to 20, 2015. The charges and amended charges in these cases were filed on
October 21, December 11, and December 20, 2013 and on January 16, February 21, and April
1, 2015. The complaint, which was issued on October 16, 2014, alleged as follows:
1. That on or about September 27, 2013, the Respondent interrogated employees about
their union activities.
2. That on or about October 1, 2013, the Respondent orally prohibited employees from
discussing the terms and conditions of their employment with other employees.
3. That on or about October 1, 2013, the Respondent announced and implemented
wage increases.
4. That on or about October 1 and October 8, 2013, the Respondent issued a verbal
warning and thereafter discharged Patrick Greichen because he assisted the Union and
engaged in other protected concerted activity.
5. That on or about January 8, 2014, the Respondent, created the impression that
employee union activities were being placed under surveillance.
JD(NY)–27–15
2
6. That on or about January 15, 2014, the Respondent for discriminatory reasons,
suspended Todd McCarty.
5
7. That on or about February 18, 2014, the Respondent for discriminatory reasons,
discharged Todd McCarty.
8. That since October 1, 2013, the Respondent has issued disciplinary actions that
condition employment on employees relinquishing Section 7 rights to discuss them with other 10
employees.
The Respondent essentially denied these allegations of the complaint. In addition, the
Respondent asserts that it made an unconditional offer to McCarty which was rejected by him.
It therefore asserts that backpay should be terminated as of the time that McCarty rejected the 15
offer and that reinstatement would not be warranted as a remedy.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
20
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer engaged in commerce within 25
the meaning of Section 2(1), (6) and (7) of the Act. I also find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
30
(a) Company Operations and the Start
of the Organizing Drive
The Respondent operates a wholesale warehouse for the distribution of food products.
These warehouses are located in Cheshire and North Haven, Connecticut. Together they 35
employ about 450 production employees in various categories such as loaders, selectors and
forklift operators.
The Company’s owner is Mike Bozzuto. Rick Clark is the Senior Vice President of
Warehouse, Transportation and Risk Management and Carl Koch is the Vice President of 40
Human Relations. Reporting to Clark is Doug Puza and a number of persons who are not
relevant to this case. In turn, John Chetcuti and Jamie Wright are managers who report to
Puza. Jason Winans is a supervisor who reports to Chetcuti. There are also a number of front
line warehouse supervisors who report to Winans.
45
In addition to the above named individuals, there is a person named Doug Vaughan who
reports to Rick Clark and whose role is essentially to be a liaison with production employees
regarding various issues such as work related complaints that may arise from time to time.
The two alleged discriminatees, Patrick Greichen and Todd McCarty, were both 50
employed as selectors at the Cheshire faculty. Their job essentially involved receiving “orders”
JD(NY)–27–15
3
for products; driving a motorized vehicle to where items are stored and loading those items onto
pallets which eventually make their way to the loading docks from which trucks deliver them to
customers. This type of job requires a substantial amount of physical strength. Employees are
rated on their performance through a computerized system, which among other things,
measures how fast they do their jobs. 5
Sometime in September 2013, Todd McCarty contacted a representative of the Union
and on September 22, he and Greichen, along with two other employees, met with a union
representative. At this meeting they were given authorization cards and told to solicit other
employees, which they commenced to do on September 23. At the outset, McCarty and the 10
others tried to keep their solicitation activity under the radar. However, by about September 26,
word began to get out and one employee posted a note on the internet talking about the union
organizing effort.
The evidence shows that the Company became aware of the union activity during the 15
last week of September. This is essentially conceded by company management who described
situations where union literature was found in work areas. In this regard, McCarty testified that
about the week after the campaign started, he was approached by Rick Clark who asked what
was going on with “this union stuff” and he replied that he was not going to talk to him about it.
Also, on October 1, the Company posted a notice explicitly acknowledging its awareness of the 20
union organizing campaign while at the same time granting pay increases to most of its
production employees.
By the last week of September 2013, the Union had obtained 84 signed authorization
cards. Both McCarty and Greichen were the most active union supporters at this time. 25
(b) The Wage Increases
On October 1, 2013, the Company posted a memorandum announcing that almost all of
its production employees except for day shift selectors would be receiving an increase in pay 30
retroactive to September 29. On the same day, the Company also announced that a number of
its employees had told management that the Union was attempting to organize the shop. This
notice went on to state that the Company was aware that the Union had obtained a list of the
warehouse employees. It encouraged employees to refrain from signing union authorization
cards and stated that “we do not need a union at Bozzuto’s.”35
The evidence shows that the last time a general wage increase was given was in 2010.
Further, the evidence presented by the Company shows that prior to October 1, there only was
some discussion about the possibility or advisability of granting wage increases to certain
categories of employees.1 However, the Employer’s proffered evidence did not show that the 40
decision to give these increases was reached at any time before the Company became aware
of union activity.
The notices posted simultaneously on October 1, 2014, leave no doubt that the pay
increases were motivated by the fact that the Company became aware that the Union was 45
engaged in organizing activity. In the absence of a showing that these increases were given on

1
R. Exh. 2 consists of notes of a supervisor discussion group meeting held in August 2013. It deals with
multiple issues including the possibility of pay increases. But it states only that the Company at that time
was “currently discussing premium changes in the Freezer, Forklift Loader and Shift.” It clearly does not
show that any decision was made at that time to increase wages or wage premiums to employees.
JD(NY)–27–15
4
a regular and period basis, or that the decision had actually been made before the Company
became aware of union organizing activity, I conclude that the Respondent violated Section
8(a)(1) of the Act. Yoshi's Japanese Restaurant & Jazz House, 330 NLRB 1339, 1344 (2000); B
& D Plastics, 302 NLRB 245 (1991); Speco Corp., 298 NLRB 439, 443 (1990).
5
(c) Patrick Greichen
At the same time that signatures were being solicited for the Union, Greichen was going
around and telling other employees that in his opinion, the Company’s production standards
were too stringent. In this regard, the Company made some changes to its production 10
standards in July 2014, and Greichen asserted to other employees that the standards required
more work. It should be noted that employees are evaluated based on a set of standards
established by the Company as to how long it should take to do the various tasks to which they
are assigned. If an employee exceeds the standard, he can earn more money; but if he fails to
meet the standard, he is subject to discipline and discharge.215
On October 1, 2013, Greichen was asked to attend a meeting with Rick Clark, Carl
Koch, Doug Vaughan and Bill Glass. At this meeting, Clark asserted that employees were
complaining about Greichen’s “erratic and scary behavior.” When asked to characterize that
behavior, Clark’s testimony was that Greichen was complaining to other workers about long 20
hours and working conditions.
Greichen received a verbal warning which stated that “his repeated negative attitude and
disrespectful behavior . . . have become disruptive to the workforce and work environment.” In
the attached memorandum, it states inter alia:25
Rick told Patrick he had met with him at least four times in the past year to
address the concerns and Patrick had agreed he would follow a communication
process in a timely fashion and to the appropriate personnel, not making
negative comments in the work force without trying to address the issue with 30
management. Patrick agreed.
* * *
Rick told Patrick he needed to stop disrupting the work environment by making 35
negative comments in the aisles, such as: being forced to work 20 hours per
day or comments about needing three legs to do the work here, in the hallway
in front of his peers.
Rick told Patrick he fully knows how he needs to properly address his concerns 40
in the work place and he hoped Patrick would follow them going forward….
On October 8, 2013, Greichen told his supervisor that the selection time standard for an
order he had to perform was incorrect. He thereafter presented his complaint to Jason Winans

2
Since each item has a machine readable tag, the Company, through the use of scanners coupled with a
computer program, can measure how long it takes to do each and every task from the time an item enters
the warehouse until the time it leaves. It seems that these standards are revised from time to time and
purport to be an accurate means by which average employee productivity can be used to set a standard
against which each employee, each week, is measured.
JD(NY)–27–15
5
via the company’s open door policy. With respect to the conversation between Greichen and
Winans, the latter recounted the conversation as follows:
On Tuesday, 10/8/13, at 2:00 p.m., Patrick Greichen came to my office very
unhappy about how much standard time the system had given him on two 5
specific assignments he had done. In an attempt to calm Mr. Greichen down I
went into his PERQ screen to find out which assignments he was referring to so I
could show them to him in detail in the PICQ screen. We looked at the
assignments and I didn’t see anything out of the ordinary. Patrick was concerned
about the amount of cases he had to select and the amount of time he was give. 10

After we looked at the orders, Patrick began telling me how he believes
BOZZUTO’S cuts the standard time on assignments on days when the volume is
high in order to get more cases out of people and to pay them less, in the
process making them miserable. Patrick then told me that he tells anybody and 15
everybody he can that he believes we are purposely changing the standards on a
daily basis in order to screw the associates. I told Patrick that I didn’t believe any
of this to be true and that these were very serious accusations he was making. I
went on to say that to the best of my knowledge the company has communicated
all changes to standards in my time here. 20

I asked Patrick why he continued to work here if he thought we were purposely
trying to make him miserable. He said that he would get back at the company,
not physically but by using the law outside of here. He stated he had too much to
lose to do anything physical. 25

I thought this conversation and the accusations made were serious enough that I
should bring it to the attention of upper management… After I told Rick Clark and
Dug Vaughn about what had happened, Rick set up a meeting to include the
three of us along with the industrial engineering team so that they could explain 30
the standards to Patrick….
After this meeting Winans reported his conversation and arranged for a meeting to be
held with Greichen, himself, Rick Clark, Doug Vaughn and someone from the industrial
engineering department.35
At around 3:45 p.m., Winans told Greichen that he had to go to a meeting to be held at 4
p.m. with Clark, Vaughn and the industrial engineers so that they could explain to him how the
standards worked. Greichen said that he couldn’t attend the meeting and that he felt that he
was being harassed. After consulting with higher ups, Winans told Greichen that the meeting 40
was mandatory and that if Greichen did not attend, he would be suspended pending termination
for insubordination. Greichen still refused to attend. And the result was that he was suspended
on October 8 and ultimately discharged as a result of this transaction.
The Company explained that the reason it insisted that Greichen attend this meeting 45
was because they wanted him to get the correct information about standards instead of having
him talking to other employees and misleading them into thinking that the Company was
somehow manipulating the standards in order to possibly reduce incentive pay or require more
work.
50
JD(NY)–27–15
6
I note that despite this assertion as to how important it was required for Greichen to
attend this meeting; in order to prevent him from giving inaccurate information to other
employees about standards, the Company did nothing thereafter to notify or to educate the
employees about any mistaken information that Greichen had allegedly previously given to
them.35
The Respondent’s position is that it discharged Greichen not because he was
complaining about production standards per se, but because he refused to attend a meeting
where a representative of the engineering department would be able to tell him why his
complaints were unfounded. I frankly don’t see how one can separate these transactions.10
The evidence establishes that the October 1 warning was issued because the Company
became aware that Greichen was complaining to other employees about how the production
standards were established and how they were being applied to both himself and to others.
Since these standards determine not only whether employees receive premium pay, but also 15
whether they can be disciplined or terminated, his discussions with his fellow employees
constitute protected concerted activity within the meaning of Section 7 of the Act.
Moreover, as this October 1 warning was issued at virtually the same time that the
Company notified employees that they should avoid union activity, it seems that given its 20
awareness of Greichen’s concerted complaints about productivity standards, the Company’s
management more than likely believed that he was among the employees who most likely
would support a union.
Based on the above, it is my conclusion that the October 1 warning to Greichen violated 25
Section 8(a)(1) and (3) of the Act.
I also conclude that Greichen’s discharge on October 8 was violative of the Act. Even
taking Respondent’s premise that Greichen’s refusal to attend a meeting constituted
insubordination, I still think that the discharge was unlawful. Greichen was told to go to a 30
meeting to discuss his complaints about productivity standards because the Company was
concerned that he was talking about them and misinforming his fellow employees. Thus, the
demand that he attend this meeting was inexplicably bound up to the Company’s earlier
unlawful warning on October 1, which was issued because of Greichen’s protected concerted
activity. One follows from the other and the October 8 meeting would not have taken place but 35
for the earlier interference with Greichen’s right to talk to his coworkers about their collective
terms and conditions of employment.
There being no evidence that Greichen, while engaged in concerted activity, conducted
himself in a threatening manner, I conclude that his discharge violated Section 8(1) and (3) of 40
the Act. Approved Electric Corp. 356 NLRB 238 (2010).

3
The Company called as its witness James Wright, who is one of the engineers. He was told of the
meeting but was not given any details as to why the meeting was to be held. He testified that the person
who asked him to come to the meeting was very vague. As to Greichen’s failure to show up for the
meeting, Wright did not think that this was a big deal. He also testified that he was not asked to talk to
any other employees about the inaccurate information that supposedly was given by Greichen.
JD(NY)–27–15
7
(d) Todd McCarty
Todd McCarty was, after Greichen left, the sole active union supporter. And there is no
dispute that the Respondent was aware of this. Indeed, McCarty, although originally advised to
keep a low profile, was later told that being an open union supporter might, in fact, give him 5
some protection from potential company harassment. In this regard, the evidence shows that
on several occasions during and after October 2013, he spoke with supervisory personal and
disclosed his role as a union activist.
McCarty was a long-term employee who had a good production record and who often 10
earned premium pay based on his performance over and above standards.
In early January 2014, McCarty saw that his reported production numbers seemed to be
too low in that the computerized reporting system failed to credit him with “down time.” In this
regard, down time is unit of time for which a supervisor, for example, has approved an 15
employee break. And this down time, if counted, serves to raise an employee’s raw productivity
score. That is, if the down time is not counted, then that employee would receive a lower
productivity score and be subject to discipline if his score for the week was less than 95 percent
of the standard amount of time that is allowed for the tasks performed by that employee. (It is
not necessary to go into all the details). 20
Believing that something was up, McCarty started recording his productivity statistics.
He testified that in early January he spoke to Winans and complained that his down time had
been eliminated from his productivity figures. According to McCarty, Winans essentially ignored
him. 25
On January 15, 2014, McCarty spoke to Englehart and repeated his claims about his
down time not being recorded. Despite a statement by Englehart that McCarty shouldn’t worry
about it, McCarty received a 5-day suspension relating to his productivity.
30
During the period of his suspension and an overlapping vacation, McCarty had
coworkers take photographs of his productivity numbers for the weeks ending January 11 and
18. These also showed that “down time” was deleted and therefore lowered McCarty’s
productivity percentage scores.
35
On February 18, 2014, soon after he returned from vacation, McCarty was presented
with a write-up stating that his performance for the week of January 11, 2014 was at 94 percent
of the standard and therefore that he was being terminated.
Subsequent to his discharge and during the investigation of the unfair labor practice 40
charge, McCarty presented to the Regional Office evidence showing that the productivity figures
that were used to justify his discharge were wrong. This was then transmitted to the Company
on April 9, 2014. After making an internal investigation, the Respondent determined that a
supervisor with access to the computer system had eliminated McCarty’s “down time” in a way
that lowered the productivity percentage numbers that were the basis of his suspension and 45
discharge. And since the only persons who normally would access the applicable computer
program are managerial or supervisory level people, it is probable, to a level of certainty, that
JD(NY)–27–15
8
someone from management, (such as Winans or some other supervisor at his direction), had
altered McCarty’s productivity numbers in an effort to remove him from the Company. 4
In this case, the evidence establishes that McCarty was the leading union activist among
the employees after October 8; that the Respondent was fully aware of his union activity, and 5
that the ostensible reason for his suspension and discharge was manifestly false. I therefore
conclude that the General Counsel has established, by a preponderance of the evidence, that
these actions by the Respondent violated Section 8(a)(1) and (3) of the Act. I also conclude
that the Respondent has failed to show that it would have taken these actions apart from
McCarty’s union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) 10
cert denied, 455 U.S. 989 (1982). See also, Metropolitan Transportation Services, 351 NLRB
657, 659 (2007) in which the Board concluded that where an employer’s various asserted
reasons were shown to be pretextual and false, it fails to meet its burden under Wright Line,
even if one of its other asserted reasons may have been legitimate.
15
(e) Miscellaneous allegations
The General Counsel alleges that the Respondent unlawfully interrogated McCarty when
he was asked by Clark “what’s going on with this union stuff?”
20
While this single act of interrogation might be viewed as an offhand and somewhat
innocuous comment, the fact is that this event occurred at or near the same time of the
unlawfully motivated pay increase and the unlawful discrimination against Greichen. I therefore
shall conclude that this interrogation, in the circumstances, violated Section 8(a)(1) of the Act.
25
The General Counsel alleges that the Respondent created the impression that the
employees’ union activities were being surveilled. In support of this allegation, McCarty,
testified that on one occasion in October, 2013, he was called to a meeting and shown
surveillance footage of him having a phone call in the common room. The General Counsel
posits that since McCarty was known to be the active union supporter and since he had taken 30
many phone calls in this area without prior objection, the only reasonable assumption is that the
Company was engaging in surveillance of his union activity inside the facility. (I don’t know if the
surveillance system records are sound and therefore I don’t know if it was possible for the
Company to eavesdrop on any conversations that McCarty had with other employees in the
plant). 35
The Company has maintained a surveillance system long before the advent of the
Union. This was not altered when the Union and McCarty started their organizing efforts. The
evidence shows that the Company’s employees are aware of the surveillance system and this is
referenced in the employee handbook. 40
In my opinion, the evidence as to this allegation is not sufficient to establish that the
Respondent either engaged in surveillance of employee union activity or, by this one instance,

4
With respect to the falsification of McCarty’s records, the Company’s investigation pointed toward a supervisor
named Grace. But the testimony was that this person denied that he had falsified McCarty’s numbers and except for
a 5-day suspension with pay, he was not otherwise disciplined.
JD(NY)–27–15
9
illegally gave the impression to employees that it was spying on their union activities. I shall
therefore recommend dismissal of this allegation of the complaint.5
As stated in her Brief, the General Counsel alleges that since October 1, 2013, the
Respondent has maintained an ongoing practice of requiring employees, “not to be involved in 5
any conversations that are deemed rumor, hearsay or non-factual.”
In support of this allegation, the General Counsel offered a group of documents relating
to situations where employees were not fired after having been suspended termination. In
these documents, there is a statement to the effect that the employee would not be terminated 10
provided he or she agreed to certain stipulations, one of which was:
If you agree to and sign this letter of agreement, you will be able to return to
regular duties. Going forward, if it is shown after proper investigation that you
violate any one or more or the following stipulations within the next six months… 15
your employment status with the Company will be terminated.
You must:
* * *20
Not be involved in any conversations that are deemed hearsay, rumors or non-
factual comments that cause any disruption in the business environment.
By inserting this statement in these documents, it is clear that the Respondent has 25
created a rule that restrains at least those employees who have been given a second chance,
from discussing, in an uninhibited way, the disciplinary actions taken against them with other
employees. And since discussion by employees about the nature of, or extent of discipline,
would relate to terms and conditions of employment, it can be construed as protected concerted
activity within the meaning of Section 7 of the Act.30
The General Counsel cites Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)
along with Lafayette Park Hotel, 326 NLRB 824, 828 (1998) and American Cast Iron Pipe Co.,
234 NLRB 1126 (1978), enfd. 600 F.2d 132 (8th Cir. 1979). For its part, the Respondent really
did not address this issue in its Brief. As I think that the cases cited by the General Counsel are 35
dispositive, I conclude that by maintaining this policy and requiring certain employees to
acknowledge the policy as a condition of retaining their jobs, the Respondent has violated
Section 8(a)(1) of the Act.
REMEDY40
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
45

5
In her brief, the General Counsel noted that the complaint alleged that this event took place in early
January 2014, instead of October 2013 and that the supervisor who allegedly committed the unfair labor
practice was mistakenly identified as Dave Gardner. She therefore moved to amend the complaint to
correct the matter. In light of my conclusion that the Respondent did not violate the Act in this manner,
there is no need to rule on the Motion.
JD(NY)–27–15
10
In addition to the standard remedy for 8(a)(1) & (3) cases, the General Counsel requests
that the Respondent be required to read the notice to the employees at a meeting held on work
time. In my opinion, this remedy is not required in this case.
From the Board’s inception, it has as part of its usual remedial orders, required the 5
offending party to post a notice describing employee rights under the Act and promising to abide
by those rights. Pennsylvania Greyhound Lines, Inc., 1 NLRB 1 (1935).
Requiring an owner or high official of a company or a union to actually read aloud the
notice to its assembled employees has not been typically required except in unusual 10
circumstances. In Federated Logistics & Operations, 340 NLRB 255, 256–257 (2003), the
Board described this as an “extraordinary remedy.” This remedy, along with others, was
imposed in a case where the employer (a) unlawfully interrogated employees; (b) created the
impression of surveillance; (c) solicited grievances; (d) promised benefits; (e) threatened
employees with the loss of existing benefits; (f) threatened to move its operations; (g) withheld 15
benefits and (h) discriminatorily suspending employees for engaging in protected activity.
Moreover, in that case, the results of an election were overturned and the Board ordered a new
election. Given these findings, in the context of a pending election situation, a Board majority
stated:
20
The Board may order extraordinary remedies when the Respondent’s unfair
labor practices are “so numerous, pervasive, and outrageous” that such
remedies are necessary “to dissipate fully the coercive effects of the unfair
labor practices found.” Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995) (and
cited cases). For example, a public reading of the notice is an “effective but 25
moderate way to let in a warming wind of information, and more important,
reassurance.” J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 539–540 (5th Cir.
1969). In addition, the Board has ordered Respondents to supply up-dated
names and addresses of employees to the Union because that “will enable the
Union to contact all employees outside the [workplace] and to present its 30
message in an atmosphere relatively free of restraint and coercion.” Excel Case
Ready, 334 NLRB 4, 5 (2001) (quoting Blockbuster Pavilion, 331 NLRB 1274,
1275 (2000)). Further, when a respondent “has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the
employees’ fundamental statutory rights,” the Board has issued a broad order35
for the Respondent to refrain from misconduct “in any other manner,” instead of
a narrow order to refrain from misconduct “in any like or related manner.”
Hickmott Foods, 242 NLRB 1357 (1979).
Although the violations found in the present case are certainly not trivial, they are not, in 40
my opinion, numerous, pervasive or outrageous. Nor has it been shown that the Respondent
has violated the Act in the past or that it likely will violate the Act in the future. In these
circumstances, it is my opinion that the Board should not require the owner of the Company to
stand in front of his employees and publicly read the notice to the assembled group.
45
There is another very tricky question in this case; namely whether the Respondent
should be required to offer reinstatement to Todd McCarty and whether his backpay should be
terminated as of May 15, 2015.
JD(NY)–27–15
11
On May 14, 2014, the Respondent transmitted to McCarty a written unconditional offer of
reinstatement. This offered him full backpay and the retention of all of benefits including
seniority. The offer did not ask McCarty to sign any settlement agreement or release and did
not condition his acceptance of the offer on the withdrawal of any pending complaints. This
offer gave McCarty 10 days to respond. This was later extended to May 28, 2014. 5
On May 19, McCarty sent an email to his lawyer and they put together a counter offer.6
In the proposed counter offer, McCarty demanded, as a condition for accepting reinstatement,
that the Company accept a number of demands, including the payment of additional leave
money to which he was not entitled. Although this counter offer was sent, it went to the wrong 10
email address and was not actually received. Nevertheless, this undelivered email does
indicate that as of May 19, McCarty was reluctant to accept the reinstatement offer and was
placing an obstacle to its acceptance. Since this email was not delivered, there was no
company response.
15
McCarty testified that 2 days later, on May 21, he received a phone call in which the
caller ID was blocked and where the caller said that if he did not drop his fucking lawsuit and
“this union stuff,” McCarty’s family members who worked at BOZZUTO’S would be fired. He
alleges that this caller also said that he had better watch his son when he drops him off at the
skate park. McCarty could not identify the person who made the call and testified that he had a 20
New York type of accent and spoke in a “tough” voice. McCarty did not identify this individual
as being Jason Winans. Winans, by this time, had been transferred out of the warehouse.
McCarty testified that later in the evening, he received a second phone call from a
blocked number where the caller allegedly said, “you got me mother fucker.” 25
McCarty’s billing records from Comcast show that eight calls were made to his phone on
May 21 where the caller ID was blocked. Unless I am reading these records wrong, they show
that four lasted for 0 seconds and apparently were hang-ups. One call was made at 10 a.m.,
lasting 5 minutes, 51 seconds; a second was made at 12:32 p.m., lasting 1 minute, 36 seconds; 30
a third was made at 10:06 p.m., lasting 3 minutes, 3 seconds; and a fourth was made at 10:52
p.m., lasting 32 seconds.
On May 28, McCarty sent an email to the Company and rejected the reinstatement offer.
He stated: 35
Due to threats I have received against myself and my family and other factors, I
Todd McCarty will not be accepting your offer of rehire. I believe these threats
came from a representative of BOZZUTO’S management or BOZZUTO’S
management alone. Myself and counsel deem your offer of rehire 40
disingenuous and unrealistic with the parameters you set forth.
On May 30, 9 days after the calls, McCarty appeared at the local police station and filed
a complaint about the threatening phone calls on May 21. The police report notes that McCarty
came in at 4:27 p.m. and that: 45

6
At this time, McCarty had retained a lawyer and had filed a lawsuit against the Company that made a
number of allegations including the allegation that he had been wrongfully terminated. In June 2015, he
amended that complaint to add Jason Winans as a defendant.
JD(NY)–27–15
12
Todd does not know the person that called and they blocked their number. He
stated that there have been no further calls since then.
At this time I have no suspect or further information. The caller did not make any
direct threats and Todd just wanted this incident documented. Todd was advised 5
to contact his service provider for his cellular phone to have them block all
incoming private callers.
No further police action.
10
McCarty claims he received another phone call on June 1, 2015, in which the caller said,
“You’re through.” As to this call, McCarty testified that the number was not blocked and that it
came from 860-758-7825. This is Jason Winans’ home phone number. McCarty testified that
he did not recognize the voice on the phone. He also took a photograph of the caller ID
number. 15
On June 12, McCarty reported this phone call to the police officer and the police report
states as follows:
Todd McCarty contacted me and stated he received another unwanted phone call. 20
He stated that he was called on 06/01/14 at approximately 2015 hours. Todd
stated that the caller stated: “You’re finished” then hung up. Todd stated that the
phone number was not blocked this time and informed me that the name and
number that his caller identification showed were Jason Winans, 860-758-7825.
25
I then called Jason and spoke with him. He stated that he did not call Todd and
would have no reason to. Jason was told to stop calling Todd and he stated that
he understood.
McCarty’s billing record shows a call received from Jason Winans at 860-758-7825 at 30
8:17 p.m. and lasting for seven seconds.
On the basis of the call on June 1 which is documented as coming from Winans,
McCarty assumed, perhaps reasonably, that the previous blocked calls on May 21 also came
from him. As such, it is argued that if McCarty was the recipient of these threats, then he 35
legitimately could reject the Company’s reinstatement offer without incurring the loss of any
backpay or future reinstatement rights.
The problem is that Winans testified that he did not make any of these calls and he
produced his billing records from Cox Communications which showed that no calls from 860-40
758-7825 were made to McCarty’s phone on the dates in question.
This presents a quandary inasmuch as I have received into evidence the billing records
of two well known cable companies that contradict each other.
45
At the resumption of the hearing, the Employer proffered an expert witness who was
going to testify that it is possible for a person, using internet sites, to alter his own phone bill so
as to show that phone calls were made to him when in fact no such calls were made. I rejected
this testimony because the Respondent had not given the General Counsel notice of its intent to
call an expert witness, despite the fact that there was a substantial hiatus between the opening 50
of the case and its resumption. The General Counsel did not have any notice of what the expert
JD(NY)–27–15
13
was going to say and did not have any report describing his findings. Therefore, the General
Counsel could not, in my opinion, adequately cross examine this person or find an expert of her
own. National Extrusion & Mfg., 357 NLRB No. 8 (2011).
Nevertheless, as an attachment to its Brief, the Respondent provided a copy of the Truth 5
in Caller ID Act of 2009, 47.U.S.C. Section 227(e) and a copy of a related Federal
Communications Commission Order dated June 22, 2011. As one is a statute and the other an
official document, I will take official notice of both. The point being argued is that there is a
practice called “Caller ID spoofing” whereby an individual can manipulate his caller ID. As
stated in the FCC report; “Callers using some interconnected VOIP services can easily alter 10
their caller ID by making a call appear to come from any number.”
To my mind, this does not sufficiently answer the question of whether McCarty managed
to alter his phone bill to show a call that was not actually made to him. Nor does it show if
Winans managed to do the opposite; manipulate his billing records to eliminate a call that he 15
actually made to McCarty. What might have helped would be some persons with expertise
employed by the respective carriers who could testify as to what was possible and what was
not.
On June 19, the Company became aware of two emails coming from addresses labeled 20
winanslies@gmail.com and Jasonwlies@yahoo.com. These were two lengthy and essentially
identical documents that set forth in great detail, the unnamed author’s grievances and gripes
involving Jason Winans from 2004 to the present. These documents, each totaling five single
spaced pages, describe in great detail, a variety of incidents purporting to show the author’s
harassment by Winans, who is described as being conceited, condescending and narcissistic. 25
I am not concerned with the truth of the assertions made in these two emails. Rather, I
am concerned by the timing of the emails, (soon after the alleged threats to McCarty), and the
fact that McCarty denied being the author. In this respect, McCarty acknowledged that the
contents of the emails were basically accurate insofar as his feelings about Winans and the 30
various incidents described. His testimony was that they were “pretty dead on.” And despite
the fact that these narratives are so detailed, covered such an extended period of time, and
included photos of McCarty and his photos of the June 1 caller ID number, it is hard for me to
imagine that anyone other than McCarty could possibly have been the author. When I asked
who he thought might have written these emails, McCarty responded; “I honestly don’t know. I 35
have suspicions.” When asked to give his suspicions, McCarty said he couldn’t speculate or
throw anybody under the bus.
It is impossible, based on this record to say with certainty that anyone from management
made the alleged threats described by McCarty as having occurred on May 21. Nor can I with 40
certainty, determine if Winans called McCarty on June 1 and made the statement; “you’re
through.”
Nevertheless it is my opinion that the evidence suggests that McCarty had already
decided by May 28 to reject the Respondent’s reinstatement offer, but then tried to set up a 45
situation where he could blame the Company for his refusal. In this way, by rejecting the
reinstatement offer, but asserting that his refusal was based on alleged threats, he could refuse
to go back to work while preventing his backpay from being cut off.
Based on the above, I conclude that the Respondent made an unconditional offer of 50
reinstatement. I also conclude that the evidence presented by McCarty is not sufficient to
JD(NY)–27–15
14
warrant a conclusion that the Respondent, by its agents, engaged in subsequent threatening
conduct that would vitiate the validity of the reinstatement offer. Accordingly, I conclude that
backpay owed to McCarty should be tolled as of May 25, 2014, and that a reinstatement order is
not required.
5
Having determined that the Respondent unlawfully suspended McCarty on January 15,
2014, and thereafter unlawfully discharged him on February 18, 2014, the Respondent must
make him whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him until May 15, 2014.
10
Having concluded that the Respondent unlawfully discharged Patrick Greichen on
October 8, 2013, it must offer him reinstatement and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimination against him.
Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 15
(1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
As to McCarty and Greichen, the Respondent shall be required to expunge from its files
any and all references to the unlawful suspensions and discharges and to notify these 20
employees in writing that this has been done and that the unlawful actions will not be used
against them in any way.
The Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent shall also compensate McCarty 25
and Greichen for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014).
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended 7
ORDER
The Respondent, BOZZUTO’S Inc., its officers, agents, and representatives, shall35
1. Cease and desist from
(a) Discharging, suspending or issuing warnings to employees because of their union or
protected concerted activity. 40
(b) Interrogating employees about their support or activity for United Food and
Commercial Workers Union, Local 919 or any other labor organization.
(c) Promising or granting wage increases in order to dissuade employees from 45
supporting the Union.

7 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(NY)–27–15
15
(d) Maintaining a policy of conditioning continued employment on an agreement by
employees to refrain from talking about any disciplines that they have received or about their
terms and conditions of employment.
(e) In any like or related manner interfering with, restraining or coercing employees in the 5
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Patrick Greichen and Todd McCarty whole for any loss of earnings and other 10
benefits suffered as a result of the discrimination against them, in the manner set forth in the
Remedy section of this Decision.
(b) Within 14 days from the date of this Order, offer Patrick Greichen, full reinstatement
to his former job, or if that job no longer exists, to a substantially equivalent position, without 15
prejudice to his seniority or any other rights or privileges previously enjoyed.
(c) Remove from its files any reference to the unlawful actions against Patrick Greichen
and Todd McCarty and within 3 days thereafter, notify them in writing, that this has been done
and that the discharges will not be used against them in any way. 20
(d) Reimburse Greichen and McCarty an amount equal to the difference in taxes owed
upon receipt of a lump sum backpay payment and taxes that would have been owed had there
been no discrimination against them.
25
(e) Submit the appropriate documentation to the Social Security Administration so that
when backpay is paid to Greichen and McCarty it will be allocated to the appropriate periods.
(f) 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 30
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.
35
(g) Within 14 days after service by the Region, post its Connecticut facilities, copies of
the attached notices marked “Appendix.”8 Copies of the notices, on forms provided by the
Regional Director for Region 1, after being signed by the Employer’s authorized representative,
shall be posted by the Employer and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. In addition to physical 40
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Employer customarily
communicates with its employees by such means. Reasonable steps shall be taken by the

8
If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the 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.”
JD(NY)–27–15
16
Employer to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Employer has gone out of
business or closed the facilities involved in these proceedings, the Employer shall duplicate and
mail, at their own expense, a copy of the notice to all current employees and former employees
employed by the Employer at any time since October 1, 2013.5
Dated, Washington, D.C. June 25, 2015
__________________
Raymond P. Green10
Administrative Law Judge
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT discharge, suspend or discipline employees because of their union or
protected concerted activities.
WE WILL NOT interrogate employees about their support or activity for United Food and
Commercial Workers Union, Local 919 or any other labor organization.
WE WILL NOT promise or grant wage increases in order to dissuade employees from
supporting the Union.
WE WILL NOT maintaining a policy of conditioning continued employment on an
agreement by employees to refrain from talking about any disciplines they may have received or
about their terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees
in the rights guaranteed them by Section 7 of the Act.
WE WILL make Patrick Greichen and Todd McCarty whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them.
WE WILL offer Patrick Greichen full reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL remove from our files any reference to the unlawful actions against Patrick
Greichen and Todd McCarty and within 3 days thereafter, notify them in writing, that this has
been done and that the discharges will not be used against them in any way.
BOZZUTO’S Inc.
(Employer)
Date 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. A.A. Ribicoff Federal Building and Courthouse, 450 Main Street, Suite 410,
Hartford, CT 06103-3022 860-240-3004
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-115298 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 860-240-3524.