Lifeway Foods, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 21, 2015

13-CA-146689 (N.L.R.B. Dec. 21, 2015)

JD–67–15
Niles, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LIFEWAY FOODS, INC.
and Cases 13-CA-146689
13-CA-140500
13-CA-151341
BAKERY, CONFECTIONERY, TOBACCO
WORKERS AND GRAIN MILLERS
INTERNATIONAL UNION, AFL-CIO-CLC,
LOCAL UNION NO. 11
Melinda Hensel, Esq.,
for the General Counsel.
Douglas Haas and Amy Moor Gaylord, Esqs.,
for the Respondent.
Gail Mrozowski, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Chicago, Illinois,
on August 12-13, 2015. The Bakery, Confectionery, Tobacco Workers and Grain Millers
International Union, AFL-CIO-CLC, Local Union No. 1 (the Charging Party) filed the charge in
Case 13-CA-140500 on November 6, 2014; the charge in Case 13-CA-146689 on February 19,
2015, and an amended charge on April 30, 2015; and the charge in Case 13-CA-151341 on May
1, 2015. The General Counsel issued an order consolidating cases, consolidated complaint, and
notice of hearing (the complaint) on July 9, 2015.
The complaint alleges in paragraph V that the Respondent violated Section 8(a)(1) of the
Act in the following respects: about November 2014, Supervisor Meliton Ramos De La Rosa
(De La Rosa) threatened that the Respondent would cease the practice of allowing employees to
leave early for child care because employees had reported him for sexual harassment; about
December 6, 2014, Human Resources Director George De La Fuente, announced that, starting

1 The case caption has been changed to reflect the correct name of the Charging Party.
JD–67–15
2
January 5, 2015, employees would no longer be allowed to leave early unless they had a medical
excuse because employees had reported De La Rosa for sexual harassment; and about January 6,
2015, De La Fuente threatened employees with discipline and discharge if they continued to
leave early for child care reasons in retaliation for the protected concerted complaints of
employees regarding De La Rosa. The complaint further alleges that the Respondent violated 5
Section 8(a)(1) of the Act, about February 5, 2015, by disciplining and discharging Maria
Angamarca and Josefina Espinoza because they had engaged in protected concerted activities by
reporting De La Rosa for sexual harassment.
Paragraph VII of the complaint alleges that the Respondent violated Section 8(a)(5) and 10
(1) of the Act by unilaterally implementing changes to its scheduling policy by announcing that,
starting January 5, 2015, employees would no longer be allowed to leave early unless they had a
medical excuse and, as a result of the unilateral change in scheduling policy, issued written
warnings to and discharged Angamarca and Espinoza.
15
As amended at the hearing, paragraph VIII of the complaint alleges that since about
February 16, 2015, the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to
bargain over the changes made to the Respondent’s scheduling policy; the discipline and
discharge of Angamarca and Espinoza; and its reimbursement to employees of biweekly uniform
rental charges and the calculation of those charges. 20
Paragraph IX of the complaint alleges that the Respondent violated Section 8(a)(5) and
(1) of the Act by exercising its discretion and unilaterally discharging employees Isaias Alarcon,
Angamarca, and Espinoza.
25
As amended at the hearing, paragraph X of the complaint alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act since about February 16, 2015, by refusing to provide
and/or delaying to provide to the Union the following information: a list of employees who
received uniform reimbursement and the calculation of the same for each employee; documents
regarding the discharge of Espinoza and Angamarca; and documents regarding the change in the 30
hours of work for certain warehouse employees from 4 p.m. to a later time.
On the entire record,2 including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following35

2 At the hearing, Jt. Exhs. 1 through 4 were proffered without objection but I inadvertently failed to
specifically indicate they were admitted. Those exhibits are formally admitted into the record.
3 In making my findings regarding the credibility of witnesses, I have considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole. In certain
instances, I credited some, but not all, of what a witness said. I note, in this regard, that “nothing is more
common in all kinds of judicial decisions to believe some and not all” of the testimony of a witness. Jerry
Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754
(2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349 NLRB
939, 939-940 (2007). In addition, I have carefully considered all the testimony in contradiction to my
factual findings and have discredited such testimony.
JD–67–15
3
Findings of Fact
I. JURISDICTION
The Respondent is a corporation with offices and places of business in Morton Grove, 5
Niles, and Skokie, Illinois, and is engaged in the supply, manufacture, and distribution of
cultured dairy products known as kefir, organic kefir, probiotic cheeses, and related products.
Annually, the Respondent sells and ships from its facilities goods valued in excess of $50,000
directly to points outside the State of Illinois. 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 and 10
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background15
As noted above, the Respondent is engaged in the manufacture and distribution of
cultured dairy products. The Respondent’s Morton Grove and Skokie facilities are production
facilities, while the Niles facility is the distribution facility. All of the complaint allegations
involve the Niles facility which employs approximately 70 employees. During the time material 20
to the complaint, George De La Fuente was the Respondent’s director of human resources; Luis
Soto was a human resources assistant; Meliton Ramos de la Rosa was a packing department
supervisor at the Niles facility and Michael “Mischa”4 Reznik was the warehouse manager at the
Niles facility. The Respondent admits that, during the material time, De La Fuente, De La Rosa,
and Reznik were supervisors within the meaning of Section 2(11) of the Act and that Soto was 25
an agent within the meaning of Section 2(13) of the Act.
Pursuant to a petition filed in Case 13-RC-113248, an election was conducted at the
Respondent’s three facilities on June 19, 2014. The revised tally of ballots reflected that 89
ballots were cast for and 65 against the Union, with one void ballot, 11 previously challenged 30
ballots were to be counted pursuant to the parties’ agreement, and 12 challenged ballots, an
insufficient number to affect the results of the election. After the election, the Respondent filed
objections to the election. On June 10, 2015, the Board overruled the Respondent’s objections
and certified the Union as the exclusive collective-bargaining representative of the employees in
the following appropriate unit:35
All full-time and regular part-time time production/maintenance, production,
maintenance, and shipping/receiving employees employed by the Employer at its
facilities currently located at 7645 North Austin Avenue, Skokie, Illinois and
6431 West Oakton, Morton Grove, Illinois, and 6101 West Grosse Point Road, 40
Niles, Illinois; but excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.

4 Michael Reznik is known to some employees as “Mischa,” which is the nickname for “Michael” in
Russian. There are other employees at the Niles facility who are known as “Mischa.” In this connection,
“Mischa” Leyfman was a shipping and receiving clerk during the material time.
JD–67–15
4
Since that time the Respondent has refused to bargain with the Union, contending that the
Union was improperly certified. In its brief, the Respondent admits that it is testing the validity
of the certification in an unfair labor practice charge filed by the Union in Case 13-CA-156570
alleging that the Respondent’s overall refusal to bargain violates Section 8(a)(5) and (1). The
Board has not yet issued a decision in that case.5
At the Respondent’s Niles facility, the front entrance enters into an office area. In the
office area are several cubicles used by marketing employees and warehouse manager Reznik’s
office. Office employees enter the facility through the front entrance to the facility. The
warehouse employees use another entrance to the facility that is located in the shipping and 10
receiving dock area. The employee time clock is located at that entrance. Reznik’s office is
several hundred feet away the shipping and receiving dock; there is a production area and a door
located between his office and the shipping and receiving area.
The packing area is located in the production area near the shipping and receiving dock. 15
In this area there are four packing tables located inside a cooler and one table is located outside
of the cooler area. There are four employees who work at each table and, at each table, two
employees are male and two employees are female.
The 8(a)(5) and (1) Allegations Regarding the Discipline and Discharge of Angamarca and 20
Espinoza
Facts
Packing Department Employees Leaving at 4 p.m.25
Maria Angamarca testified with the aid of a Spanish interpreter. Angamarca worked at
the Respondent’s Niles facility as a packing employee from February 2, 2008, until she was
discharged on February 15, 2014. According to Angamarca, the schedule in the packing
department was from 7 a.m. until 4:30 p.m. when she first started but, at some point that is 30
undetermined in the record, the schedule was changed to 5 a.m. to 6 p.m.
Angamarca’s uncontradicted testimony establishes that in December 2013 or January
2014, she spoke to De La Fuente when he was at the Niles facility during the union campaign
and told him that she wanted to leave work at 4 p.m. in order to pick up her son. De La Fuente 35
told Angamarca that he could not speak to her about it at that time but he would get back to her.
Approximately 2 days later, De La Fuente was again present at the Niles facility, when
employees in the packing department were shown a video regarding the Union. In the presence
of the packing department employees, Angamarca again spoke to De La Fuente and requested to
be able to leave at 4 p.m. because she had to pick up her son at 4:30 p.m. De la Fuente responded40
that he was going to see about that and that he was going to help, but said nothing further.
Angamarca testified that in February 2014 she met with “Mischa” in his office which is
located at the entrance to the facility where the offices are located. Angamarca did not know
“Mischa’s” last name but described him as tall and skinny with blond hair. According to 45
Angamarca, when she met with “Mischa,” he told him that she could not work after 4 p.m.
because she had to pick up her son and had no one else to pick him up. “Mischa” told
JD–67–15
5
Angamarca that it was not a problem and that she could leave at 4 p.m., as he had the authority
to deal with time issues. 5
Beginning in February 2014, Angamarca’s time records reflect that she left work at 4
p.m. approximately 2 days a week during the months of February and March. (R. Exh. 8.) 5
Angamarca testified that in approximately April 2014 she began to clock out and leave work at 4
p.m. on a regular basis. Angamarca’s time records confirm her testimony on this point.
Angamarca’s supervisor, De La Rosa, observed her leaving at 4 p.m. and did not tell her that she
could not leave at that time. According to Angamarca, after she began to leave at 4 p.m. on a
regular basis, employees Josefina Espinoza, Ana Yupa, Christina Flores, and Veronica Suarez, 10
also began to clock out and leave work at 4 p.m. on certain days.
Josefina Espinoza testified with the aid of a Spanish interpreter. Espinoza worked at the
Respondent’s Niles facility as a packer from October 10, 2013, until she was discharged on
February 5, 2015. According to Espinoza’s uncontradicted testimony, in June 2014, she spoke to 15
her supervisor, De La Rosa, and told him that she wanted to leave at 4 p.m. because of child care
needs on Monday, Tuesday, and Wednesday and that he gave her permission to do so.6
According to Espinoza, Angamarca, Suarez, and Yupa also left work early on certain days.
Ana Yupa also testified with the aid of a Spanish interpreter. Yupa testified that in July 20
2014 she asked de la Rosa if she could leave work at 4 p.m. on some days because of child care
issues and that he gave her permission to do so.
Israel Arteta testified on behalf of the Respondent. Arteta testified, in part, with the aid of
a Spanish interpreter, while the remainder of his testimony was in English. At the time of 25
hearing, Arteta was a supervisor in the shipping and receiving department and reported to

5 Michael Reznik testified that he is also known by the name “Mischa.” Reznik denied that he ever
gave Angamarca permission to leave early on a regular basis for child care reasons. I credit Angamarca’s
testimony over that of Reznik. While Angamarca did not know Reznik's last name, she explained in detail
that his office was located in the office area located by the main entrance to the facility. While Reznik has
brown hair rather than blond hair, I do not find this aspect of Angamarca’s testimony sufficient for me to
discredit it. I find that it is inherently plausible that, since Angamarca did not receive a clear indication
from De La Fuente that she could leave at 4 p.m., she went to Reznik, the warehouse manager, in order to
receive such permission. Angamarca’s demeanor while testifying on this point reflected certainty and was
more impressive than Reznik’s demeanor while testifying.
In further considering Angamarca's credibility on this issue, on cross-examination, Angamarca
admitted that, in the affidavit that she had given to the NLRB during the investigation of the case, she
indicated that De La Fuente had given her permission to leave early. Angamarca testified on cross-
examination that she did speak to De La Fuente and he told her that her leaving early was not going to be
a problem and then she spoke to Reznik about it. I do not credit this portion of Angamarca's testimony.
Rather, I find that, consistent with Angamarca’s testimony on direct examination, when she asked De La
Fuente for permission to leave at 4 p.m., he told her that he would see about that and would help, but did
not give her express permission to leave at 4 p.m.
6 De La Rosa did not testify at the hearing. The record establishes that he resigned his employment
with the Respondent on January 23, 2015.
JD–67–15
6
Reznik.7 Since De La Rosa’s resignation on January 23, 2015, Arteta has also supervised the
packing and assembly department, together with another supervisor, Juan Carlos Duran. Arteta
testified that in 2014 he observed Angamarca, Espinoza, and Yupa leaving work at 4 p.m. for
approximately 6 months before he spoke to De La Rosa about it in late November 2014. (Tr.
324-325) When Arteta spoke to De La Rosa about certain employees leaving early, De La Rosa 5
told Arteta that he knew of it. Arteta did not report his observations of certain packing
department employees leaving early to anyone else.
Reznik testified that he has established the weekly schedule for employees at the Niles
facility on a weekly basis for approximately 2 years. His practice has been that on Friday the 10
schedule is set for the following week. Prior to his resignation, De La Rosa assisted Reznik in
scheduling employees and Arteta has assisted him in this regard since De La Rosa’s resignation.
Employees Complain About De La Rosa
15
Yupa testified that on Halloween, October 31, 2014, she asked De La Rosa if she could
leave early in order to pick up her son and he told her that she could. De La Rosa told her that he
was going to allow her to leave, but asked her to send him a “sexy picture” of herself. De La
Rosa added that if Yupa did not, she was going to only have 8 hours of work the following
Monday. According to Yupa, De La Rosa also invited female employees out to eat with him. 20
Shortly after the incident with De La Rosa on Halloween 2014, Yupa spoke to other female
employees about De La Rosa’s advances and was told “he was like that.” Espinoza testified that
in November 2014, De La Rosa asked her to go out with him. Espinoza told De La Rosa that she
was married and had children. De La Rosa told Espinoza that nobody would know that they were
going out. Espinoza told him no. De La Rosa then told Espinoza that she was going to have to 25
work in the cooler and that he was not going to give her any more days off and that they were not
going to talk to each other. De La Rosa also told her that she could not leave early anymore and
that she was going to have to work until 6 p.m. Angamarca testified only that sometime in 2013
De La Rosa had invited her to go out for a ride.
30
According to Arteta’s uncontradicted testimony, in late November 2014, employee
Jasmine Bahena told him that employee Maura De Jesus wanted to speak with him. When Arteta
spoke to De Jesus she informed him that De La Rosa was verbally sexually harassing her and
said that he was also doing the same to Espinoza and Yupa. Arteta spoke to Espinoza near the
end of the same day and she confirmed what De Jesus had reported to him. The next day, Arteta 35
called De La Fuente and informed him that there were some employees in the packing
department who wanted to speak to him about a serious matter.8 De La Fuente and his assistant,

7 I find , based on the record evidence, that Arteta is a supervisor within the meaning of Section 2(11)
of the Act.
8 I find, based on the record as a whole, that De La Fuente and Soto arrived at the Niles facility and
interviewed employees regarding the conduct of De La Rosa on an undetermined date in late November,
2014. In this connection, Yupa and Espinoza testified that their meetings with De La Fuente regarding De
La Rosa occurred in late November 2014. Angamarca testified that she met with Soto in late November.
Arteta testified that the complaints of sexual harassment were brought to his attention in late November or
early December. I do not credit De La Fuente's testimony that his interviews with employees regarding
De La Rosa occurred on December 2, 2014. De La Fuente's testimony regarding the date is based, in part,
on notes that were contained in the personnel files of Angamarca (R. Exh. 6) and Espinoza (R. Exh. 7)
JD–67–15
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Luis Soto, then went to the Niles facility. De La Fuente and Soto first met with De Jesus who
informed them that on a number of occasions De La Rosa had asked her to go out on a date and
made her feel uncomfortable.
De La Fuente and Soto then interviewed Espinoza. Based on Espinoza’s credited 5
testimony, in late November 2014, De La Fuente and Soto met her in the dining room and asked
her to come to the office to speak with him. De La Fuente asked her what was going on and told
her that he was there to resolve the problem. Espinoza told De La Fuente that De La Rosa
wanted her to go out with him. Espinoza also informed De La Fuente that De La Rosa told her
that if she did not, she would have to work in the cooler and he was not going to let her leave 10
early. According to Espinoza, at this meeting De La Fuente did not say anything at this meeting
about not being allowed to leave early.
Yupa testified that De La Fuente asked her to meet with him in November 2014. Yupa
testified she met with De La Fuente alone and told him about De La Rosa’s advances toward 15
her.9
According to Angamarca’s uncontradicted testimony, in November 2014 she was called
to the office by Soto. Soto asked her if she wanted to talk to him and she responded “no.” Soto

reflecting the meetings were held on that date regarding the schedule of those employees. There is no
mention in those notes of De La Fuente interviewing the employees regarding the alleged sexual
harassment of De La Rosa. I find it odd that there would be no mention in the notes of the alleged sexual
harassment of De La Rosa, since the reason that De La Fuente traveled to the facility was to speak to
employees about De La Rosa. On the basis of the record as a whole, I find that the notes dated December
2 refer to later meetings held by De La Fuente where the schedules of Angamarca and Espinoza were
discussed.
9 I do not credit Yupa’s testimony that she had another meeting with De La Fuente regarding this
matter approximately 3 weeks later, at which Espinoza was present. I believe that Yupa was confusing her
meeting with De La Fuente regarding the subject of De La Rosa’s advances toward her with some of the
meetings that were held later regarding scheduling. I also do not credit Espinoza's testimony that Yupa
was present when De La Fuente interviewed her. Espinoza's testimony on this point was brief and
attenuated. I do credit Espinoza and Yupa regarding the substance of what was discussed during the
interview with De La Fuente. Their testimony has sufficient detail regarding the substance of their
individual meetings to establish that it is reliable. In addition, their demeanor while testifying about the
meeting itself reflected certainty. While I credit De La Fuente's testimony to the extent that he testified
that he interviewed Espinoza and Yupa separately regarding the alleged sexual harassment, I do not credit
his testimony with regard to the substance of the meetings to the extent that it conflicts with that of Yupa
and Espinoza. De la Fuente testified that he met with De Jesus, Espinoza, Yupa, and Angamarca
separately about the allegations regarding De La Rosa and during these interviews found out that some
packing department employees were leaving early. The meetings with employees began in the late
morning approximately 11 a.m. According to De La Fuente, after learning that some employees were
leaving early from work, he reviewed time clock records for those employees the same day. He then
confronted De La Rosa and inquired of him what was going on. De La Fuente then testified that he had
another meeting with Espinoza about leaving early that same day. I find De La Fuente’s testimony that
all of this occurred in one day is implausible and I do not credit his testimony that he had a second
meeting that day with Espinoza.
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stated that Yupa, De Jesus, and Espinoza told him that she wanted to talk to him. Angamarca
replied that she did not know what the other women had talked to him about. Angamarca did tell
Soto that there was inequality in De La Rosa’s assignments, since some of the female employees
were allowed to work in the warm area, outside of the cooler, while others, including herself,
worked in the cooler area. Soto told her that he would speak to De La Fuente about it. During 5
this meeting, Angamarca did not relay any complaints regarding De La Rosa sexually harassing
her.
Espinoza testified that the day following her meeting with De La Fuente about De La
Rosa, De La Rosa spoke to all of the employees in the packing area and said that the women who 10
went to complain at the office were going to be “the losers” because he already had 18 years of
working there. De La Rosa also that he would not allow the employees who were leaving at 4
p.m. to leave early. Espinoza responded by telling De La Rosa that she had, in fact, gone to the
office and that he was the one who invited her to go out and she told him that she did not want
to. Angamarca and Yupa also testified regarding this meeting and their testimony corroborates 15
that of Espinoza in all material respects.
Yupa testified that a couple of days after she met with De La Fuente, De La Rosa spoke
to her privately and told her that he knew that the women had complained about him and that
changes were going to occur and that they were his decisions. De La Rosa added that nobody 20
was going to tell him what to do because he had worked there for 20 years. De la Rosa told her
that because she was pregnant, she could continue to leave when she wished, but if she was not
pregnant she would be under the same “punishment” as the other women. (Tr. 183-184)10
Based on the credited testimony of Angamarca, Espinoza, and Yupa, I find that De La 25
Rosa threatened employees that they would not be allowed to leave work at 4 p.m. because they
had gone to the office and complained about him. By threatening to retaliate against employees
who had raised protected concerted complaints about him, De La Rosa’s statements violated
Section 8(a)(1) of the Act.
30
The Implementation of the 2015 Work Schedule
According to the uncontradicted testimony of Angamarca, Espinoza, and Yupa, in early
December 2014, approximately a week after they met with De La Fuente regarding De La Rosa,
De La Fuente had a meeting with all 20 employees in the packing department. De La Rosa and 35
Soto were also present. At this meeting, De La Fuente informed the employees that they had to
work from 5 a.m. to 6 p.m., beginning on January 1, 2015. De La Fuente told the employees that
if they did not comply with this rule, they would be given three warnings and then they would be
discharged. Angamarca said that she could not work this new schedule because she was already
working 11 hours, from 5 a.m. to 4 p.m. De la Fuente responded that all of employees had to 40
work under that schedule. Angamarca indicated that she could not work late and told De La

10 While Yupa’s testimony is somewhat confusing regarding specifically when this conversation
occurred, in context, it is clear that it occurred after De La Rosa spoke to all of the packing employees the
day after the female employees had complained to De La Fuente about him. With respect to the substance
of the conversation, however, I find that Yupa's testimony has sufficient detail to render it credible. In
addition, I found her demeanor while testifying respect to the substance of this meeting to be convincing.
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Fuente that she needed to speak to the owner. De La Fuente responded that she could not speak
to the owner, “because that is why he is there.” When Angamarca asked him for permission to
leave at 4 p.m., De La Fuente responded that he could not do anything and that it was going to
be compulsory to work that schedule.
5
After the meeting held with the entire packing department, on December 2, 2014, De La
Fuente, Soto, and De La Rosa met separately with Angamarca and Espinoza. De La Fuente
reiterated that the 2015 work schedule would have to be followed and there were no exceptions
for leaving early without a legitimate medical reason. Both employees were given until January
2, 2015, to coordinate their child care. (R. Exhs.6 and 7.) After the announcement of the 2015 10
work schedule, Angamarca continued to leave work at 4 p.m. on a daily basis (R. Exh. 8);
Espinoza continued to leave work at 4 p.m. 3 days a week (R. Exh. 14); and Yupa continued to
leave work at 4 p.m. up to 3 days per week (R. Exh. 33).
On January 6, 2015, De La Fuente, Soto, and Reznik met with Angamarca and Espinoza 15
separately and De La Fuente reiterated that the 2015 work schedule would have to be followed
and that there were no exceptions for leaving early without a medical reason. Angamarca was
given until February 2, 2015, to coordinate child care. (Tr. 77-79, R. Exh. 6) At the meeting with
Espinoza, two other employees Brian Alvarado and Steve Alvarado, were present and De La
Fuente also indicated that the proper call off procedure needed to be followed in case of being 20
tardy or absent. ( R Exh. 6) At these meetings, Angamarca and Espinoza both told De La Fuente
that they had to leave at 4 p.m. to pick up their children.
On January 23, 2015, De La Fuente, Soto, and Reznik, again met with both Angamarca
and Espinoza separately and De La Fuente again reiterated that the 2015 work schedule was to 25
be followed and that no exceptions were permitted for leaving early without a legitimate medical
reason. Espinoza was given until February 2, 2015 to coordinate child care. (R. Exh. 7.) On
February 5, 2015, De La Fuente again met with Angamarca and Espinoza and presented each of
them written warnings for leaving at 4 p.m. on February 3 and 4, 2015. (GC Exh. 7; R Exhs. 6
and 7). When Espinoza and Angamarca refused to sign the warnings they were discharged.30
In February 2015, Yupa, who was pregnant at the time, presented a note from her doctor
indicating that she could not stand on her feet for long periods. (Tr. 190-191.) After Yupa
presented evidence of a medical reason for leaving early, she was permitted to leave work early
until she went on maternity leave in April 2015. 35
It is undisputed that the Union did not receive prior notice of the implementation of the
2015 work schedule or the discharges of Angamarca and Espinoza and the written warnings
issued to them. After Angamarca and Espinoza were terminated, they notified Beth Zavala, the
Union’s recording secretary, of the circumstances under which they were discharged. On 40
February 6, 2015, Zavala sent a letter to De La Fuente (GC Exh. 4) stating, in part, that the
Union had not been provided any notice and an opportunity to bargain regarding the change in
work hours that had resulted in the discipline and termination of Espinoza and Angamarca. In the
letter, the Union specifically demanded to bargain regarding the change in work hours and the
discipline and termination of the employees related to that change. The Union’s letter also 45
requested that the Respondent forward any documents regarding the termination of Espinoza and
Angamarca and the change in the hours of work for certain warehouse employees from 4 p.m. to
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a later time. On February 16, 2015, the Respondent’s attorney responded to the Union’s February
6 letter by email. The email indicates that the Respondent had no obligation to bargain with the
Union over the policy of leaving work before the end of shifts and the terminations of the two
employees, because the Union had not been certified. (GC Exh. 5.) However, on July 6, 2015,
the Respondent did provide to the Union the documents related to the discipline and termination 5
of Espinoza (GC Exhs. 12 and 18).
Contentions of the Parties
The General Counsel and the Charging Party contend that the Respondent violated 10
Section 8(a)(5) and (1) by unilaterally changing the schedules of employees in the packing
department at the Niles facility by eliminating the practice by which employees could leave at 4
p.m. with the permission of their supervisor.
In asserting that its conduct did not violate Section 8(a)(5) and (1), the Respondent first 15
contends that it has no bargaining obligation because the Union was not properly certified. The
Respondent next contends that in December 2014, it merely reiterated its policy that employees
in the packing department had to work from 5 a.m. to 6 p.m. and therefore there was no
substantial and material change that would require bargaining. In this connection, the
Respondent contends that the evidence does not establish that there was a binding past practice 20
with respect to allowing employees to leave early from the packing department sufficient to
establish a bargaining obligation.
Analysis
25
With respect to the Respondent’s argument that the Union was not properly certified, on
June 10, 2015, the Board issued a decision certifying the union as the bargaining representative
for the employees in the unit. I am, of course, obligated to follow Board law in deciding the
allegations of the complaint. Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco,
Inc., 273 NLRB 746, 749 fn. 14 (1984). Accordingly, I find no merit to the Respondent’s 30
contention that the Union was not properly certified.
The fact that the Respondent announced in December 2014, that all employees in the
packing department would have to work until 6 p.m., prior to the Union’s certification in July
2015, does not serve as a defense in the instant case. An employer acts at its peril in making 35
changes to the terms and conditions of employment during the period when its objections to an
election are pending and a certification has not yet issued to a union. Where a final
determination on the objections results in the certification of a union, the Board has long held
that an employer violates Section 8(a)(5) and (1) when it has made such unilateral changes. Mike
O’Connor Chevrolet, 209 NLRB 701, 703-704 (1974), enf. denied on other grounds, 512 F.2d 40
684 (8th Cir. 1975); Saint-Gobain Abrasives, Inc., 343 NLRB 542, 561 (2004).
It is well established that when an employer unilaterally changes the terms and conditions
of employment of its employees unilaterally, without giving notice and an opportunity to bargain
to a union representing the employees, it violates Section 8(a)(5) and (1). NLRB v. Katz, 369 U.S. 45
736 (1962). It is beyond dispute that the number of hours worked by employees is a mandatory
subject of bargaining. In Meat Cutters Local 189 v. Jewel Tea Co., 381 U.S. 676, 691 (1965),
JD–67–15
11
the Supreme Court held: “[T]he particular hours of the day and the particular days of the week
during which employees may be required to work are subjects within the realm of wages, hours
and other terms and conditions of employment about which employers and unions must bargain.”
The Board has consistently found, with court approval, that the number of hours employees are
required to work is a mandatory subject of bargaining. Tuskegee Transportation System, 308 5
NLRB 251, 251-252 (1992), enfd. 5 F.3d 1499 (11th Cir. 1993); Atlas Microfilming, 267 NLRB
682, 695-696 (1983), enfd. F.2d 313 (3d Cir. 1985); Fall River Savings Bank, 260 NLRB 911
(1982).
The Board also requires that a change in working conditions must be “material, 10
substantial and significant” in order for a bargaining obligation to be present. Bohemian Club,
351 NLRB 1065, 1066 (2007); Mitchellace, Inc., 321 NLRB 191, 193 (1996).When the General
Counsel alleges that an employer has unilaterally changed, in a material, substantial and
significant way, terms and conditions of employment that constitute a past practice, the General
Counsel must establish the existence of an established practice. National Steel & Shipbuilding 15
Co., 348 NLRB 320, 323 (2006); Exxon Shipping Co., 291 NLRB 489, 493 (1988).
In the instant case, I find that the evidence establishes that three employees in the packing
department at the Niles facility had a regular and established practice for approximately 6
months of leaving work at 4 p.m. with the permission of their supervisors. In February 2014,20
Angamarca began leaving at 4 p.m. approximately 2 to 3 days a week and in April 2014, began
to leave work at 4 p.m. on a daily basis, because of child care needs, after receiving permission
to do so from Reznik, the manager of the Niles facility. Angamarca’s immediate supervisor, De
la Rosa, observed her leaving at 4 p.m. and never questioned her about it. Shortly thereafter,
Espinoza and Yupa received permission from their immediate supervisor, De La Rosa, to leave 25
work at 4 p.m. up to 3 days a week in order to pick up their children. In addition, another
supervisor, Arteta, observed the three employees leaving early on a regular basis for
approximately 6 months before de la Fuente announced in early December 2014 that in 2015 all
employees would have to work until 6 p.m. unless they had a medical excuse. Reznik was
responsible for establishing the schedule employees at the Niles facility on a weekly basis.30
Prior to his resignation in January 2015, De La Rosa assisted Reznik in making out the
schedule. Since then Arteta has assisted Reznick in that regard. Thus, it is clear that three
supervisors of the Niles facility, including the warehouse manager, knew that three employees
regularly left at 4 p.m. because of child care needs. In addition, each employee’s departure at 435
p.m. was recorded on their time sheets.
I find that the evidence establishes that there was a sufficient established practice of
allowing employees to leave at 4 p.m. for child care reasons, with supervisory approval, to
require bargaining before the Respondent could change that practice. Thus, De la Fuente’s 40
announcement in late November 2014 that it was compulsory for all employees in the packing
department to work until 6 p.m. and his statements in early December 2014, that the only
exception to this policy would be for medical reasons, constituted an unlawful unilateral change.
I find that by such conduct the Respondent violated Section 8(a)(5) and (1) of the Act. In 45
so finding, I do not agree with the Respondent’s contention that De La Fuente was merely
reiterating the Respondent’s existing policy. Rather, an established practice had been conducted
JD–67–15
12
for approximately 6 months in which De La Rosa and Reznik had exercised their discretion in
allowing employees to leave at 4 p.m. in order to accommodate child care needs.
The Board’s decision in Wayne County Neighborhood Legal Services, 249 NLRB 1260
(1980), supports my conclusion that the Respondent’s conduct constitutes a unilateral change 5
violative of Section 8(a)(5) and (1). In Wayne County the respondent’s attorney employees had
an obligation to work a 40 hour workweek and to record their time accurately. The evidence
established, however, that attorneys were permitted, on a regular and recurring basis, to observe
a work day which varied from the regular 9 to 5 hours during which the respondent’s offices
were open to the general public. Under these circumstances, the Board found that the10
respondent’s action in issuing a memo stating that attorneys were expected to work 40 hours per
week, 9 to 5, Monday through Friday, constituted a unilateral change in violation of Section
8(a)(5) and (1) of the Act. The Board noted that the memo requiring employees to adhere to a 9
to 5 schedule changed the established practice of allowing employees to make individual
adjustments with their supervisors regarding their work schedules. The Board rejected the 15
respondent’s contention that the memo merely reiterated rules which had already been in
existence.
The Respondent, in support of its position that it did not have an obligation to bargain
over implementing a rule requiring employees in the packing department to work until 6 p.m. 20
unless they had a medical excuse, relies principally on National Association of Government
Employees, Local R14-77 and US Department of Veterans Affairs Medical Center, 40 FLRA 342
(1991). In the first instance, as noted above, I am obligated to follow Board precedent, unless and
until it is reversed by the Supreme Court, in deciding the allegations of the complaint. Pathmark
Stores, Inc.; Waco Inc., supra. Moreover, I find National Association of Government Employees, 25
to be distinguishable. In that case one department supervisor allowed some employees to cleanup
and change out of their uniforms at the end of their shift while they were on working time. When
higher level management learned of this practice, it was stopped. The union filed a grievance and
an arbitrator concluded, inter alia, that there was insufficient evidence to establish a binding past
practice. The FLRA denied the union’s exceptions to the arbitrator’s decision. As noted above, in 30
the instant case, both the employees’ immediate supervisor and the facility manager were aware
of and condoned the practice of allowing employees to leave at 4 p.m. for child care reasons,
with supervisory approval.
As noted above, the complaint also alleges that, as a result of the Respondent’s unilateral 35
change in scheduling in the packing department, the discipline and discharge of Angamarca and
Espinoza also violates Section 8(a)(5) and (1) of the Act. The evidence establishes that
Angamarca and Espinoza were discharged for violating the unilaterally imposed rule that
required all employees in the packing department to work until 6 p.m., unless they had a medical
reason. Under clearly established Board law, if an employer’s unilaterally imposed rules were a 40
factor in the discipline or discharge of employee, the discipline and discharge violates Section 8
(a)(5) and (1) of the Act. Consec Security, 328 NLRB 1201 (1999); Behnke, Inc., 313 NLRB
1132, 1139 (1994); Equitable Gas Co., 303 NLRB 925, 931 fn. 29 (1991). Since the
Respondent’s unilaterally implemented rule that all employees in the packing department had to
work until 6 p.m., unless they had a medical reason for leaving early, was the basis for the 45
discipline and discharge of Angamarca and Espinoza, their discipline and discharge violates
Section 8(a)(5) and (1) of the Act.
JD–67–15
13
The Information Requests Regarding Angamarca and Espinoza
As noted above, after learning of the implementation of the new policy regarding work
hours in the packing department that resulted in the discharges of Espinoza and Angamarca, on 5
February 6, 2015, the Union sent a letter to the Respondent requesting information regarding the
change in hours for certain warehouse employees from 4 p.m. to a later time and the
terminations of Espinoza and Angamarca. On February 16, 2015, the Respondent replied to the
Union and indicated it had no obligation to bargain with the Union. However, on July 6, 2015,
the Respondent did provide to the Union the documents related to the discipline and discharge of 10
Espinoza and the change in work hours as it applied to her.
It is clearly established that an employer is obligated to provide the collective-bargaining
representative of its employees, on request, with information that is necessary and relevant to the
union’s function as the collective-bargaining representative. Relevance is determined by a broad 15
discovery type standard and it is only necessary to establish the probability that the information
sought would be useful to the union in carrying out its statutory duties. NLRB v. Acme Industrial
Co., 35 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). As I have noted above,
the Respondent instituted a unilateral change regarding the ability of employees in the packing
department to leave at 4 p.m. with permission of their supervisor and made it compulsory that 20
employees had to work until 6 p.m., unless they had a medical reason for leaving early. This
change in the number of hours these employees were required to work involves a mandatory
subject of bargaining. Accordingly, the Respondent was obligated to provide the requested
information on that basis.
25
In addition, the Board has long held that information concerning unit employees’ terms
and conditions of employment is deemed to be presumptively relevant to the union’s duty to
represent the employees. Pavilion and Forestal Nursing & Rehabilitation, 346 NLRB 458, 463
(2006); Atlanta Hilton & Tower, 271 NLRB 1600, 1602 (1984); Cowles Communication, Inc.
172 NLRB 1909 (1968). Accordingly, the Respondent was obligated to furnish the Union 30
information regarding the change in hours for certain employees in the packing department and
the information regarding the discipline and discharges of Angamarca and Espinoza. The
Respondent’s failure to furnish, at all, the requested information regarding the change in hours
and the discipline and discharge of Angamarca, constitutes a violation of Section 8(a)(5) and (1)
of the Act.35
In July 2015, the Respondent furnished the information to the Union regarding the
discipline and discharge of Espinoza and the change in work hours as it applied to her. The
Respondent offered no explanation regarding its reason for the delay. The Board has consistently
found that such delays in providing the requested information, without a legitimate explanation,40
to be violative of Section 8(a)(5) and (1) of the Act. Pan American Grain, 343 NLRB 318
(2004), enfd. in relevant part, 432 F.3d 69 (1st Cir. 2005) (3-month delay); Bundy Corp., 292
NLRB 671 (1989) (2.5 month delay); Woodland Clinic, 331 NLRB 735, 736-737 (7-week
delay). Accordingly, I find that the Respondent’s delay in furnishing the requested information to
the Union regarding the discipline and discharge of Espinoza and the change in work hours as it 45
applied to her violates Section 8(a)(5) and (1) of the Act.
JD–67–15
14
The Complaint Allegations that the Discipline and Discharge of Angamarca and Espinoza
Violated Section 8(a) (1) of the Act.
Contentions of the Parties
5
The General Counsel and the Charging Party contend that the discipline and discharge of
Angamarca and Espinoza independently violated Section 8(a)(1) of the Act because the
Respondent took such action in response to their concerted complaints regarding the sexual
harassment of De La Rosa.
10
The Respondent contends that neither Angamarca nor Espinoza engaged in protected
concerted activity. The Respondent further contends that if I should find that they engaged in
protected concerted activity there is insufficient evidence to establish that such conduct
motivated the Respondent to terminate them in retaliation for such conduct in violation of
Section 8(a)(1) of the Act.15
Analysis
In support of their position that the discipline and discharge of Angamarca and Espinoza
was motivated by protected concerted complaints that they made, the General Counsel and the 20
Charging Party rely on the Board’s decision in Fresh & Easy Neighborhood Market, 361 NLRB
No. 12 (2014). In that case, the Board clarified its position regarding what constitutes protected
concerted activity. In doing so, the Board reiterated the principle that concerted activity includes
situations “where individual employees seek to initiate or to induce or prepare for group action,
as well as individual employees bringing truly group complaints to the attention of 25
management.” (Citation omitted). Id. slip op. at 3. The Board also noted that “the activity of a
single employee in enlisting the support of his fellow employees for their mutual aid and
protection is as much ‘concerted activity’ as is ordinary group activity.” Id. slip op. at 3.
In the instant case, it is clear that De La Rosa asked female packing department 30
employees to go out with him and made sexually harassing statements to some of the female
employees. As noted above, Yupa specifically testified that she spoke to other employees about
De La Rosa’s conduct in this regard. In late November 2014, De Jesus reported to Arteta that
Delarosa was verbally sexually harassing her and also reported that he was doing the same to
Espinoza and Yupa. Arteta spoke to Espinoza the same day and she confirmed what De Jesus 35
had reported to him. The next day Arteta contacted De La Fuente and informed him that there
were some employees in the packing department who wanted speak to him about a serious
matter. De La Fuente and then met with De Jesus who reported that a number of occasions
Delarosa had asked her on a date. De la Fuente then interviewed Espinoza and she told him that
De La Rosa wanted her to go out with him and also reported that he threatened her that if she 40
did not she would have to work in the cooler and he was not going to let her leave early. De la
Fuente then interviewed Yupa who also testified that Delarosa had made advances toward her.
Angamarca testified that she only reported to Soto that there was inequality in some of De La
Rosa’s assignments, since some of the female employees worked in the warm area and others,
including herself, worked in the cooler. Angamarca did not relay any complaints regarding De 45
La Rosa sexually harassing her.
JD–67–15
15
It is clear that female packing department employees discussed among themselves De La
Rosa’s sexually harassing conduct and then De Jesus reported that conduct to Arteta. After
confirming that De La Rosa had engaged in such conduct toward other female employees, Arteta
relayed the concerns to De La Fuente. De la Fuente spoke with De Jesus, Espinoza and Yupa,
who all confirmed De La Rosa’s improper advances toward them. Angamarca did not relay any 5
inappropriate advances that De La Rosa may have made to her when she was an interview by
Soto, but she did complain about de la Rosa’s “inequality” in making assignments regarding the
female employees.
I find that, under the principles expressed in Fresh & Easy Neighborhood Market, the 10
evidence establishes that De Jesus, Espinoza, and Yupa were engaged in protected concerted
activity as they brought to management complaints regarding De La Rosa’s inappropriate sexual
advances. Angamarca did not specifically relay any complaints about sexual harassment by De
La Rosa, but she did report to management her complaint regarding his inequality in
assignments among the female employees. As Fresh & Easy Neighborhood Market makes clear,15
the concept of mutual aid or protection focuses on the goal of concerted activity in seeking to
improve terms and conditions of employment, and there is no requirement that an employee’s
activity in attempting to improve working conditions with fellow employees “combine with each
other in any particular way.” Id. slip op. at 3. (Citation omitted.) Accordingly, I find that
Angamarca was also engaged in protected concerted activity when she complained to Soto20
regarding De La Rosa’s assignments regarding the female employees.
In Ferguson Enterprises, Inc., 355 NLRB No. 189 fn. 3 (2010), the Board approved the
use of a Wright Line analysis in determining 8(a)(1) allegations that turn on motive. In Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert denied 455 U.S. 989 25
(1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Board
established a framework for deciding cases turning on employer motivation regarding an adverse
employment action taken against an employee. To prove an employer’s action is discriminatorily
motivated and violative of the Act, the General Counsel must first establish, by a preponderance
of the evidence, an employee’s protected conduct was a motivating factor in the employer’s 30
decision. The elements commonly required to support such a showing are union activity by the
employee, employer knowledge of the activity and antiunion animus on the part of the employer.
If the General Counsel is able to establish a prima facie case of discriminatory motivation, the
burden of persuasion shifts “to the employer to demonstrate the same action would have taken
place even in the absence of the protected conduct.” Wright Line, supra, at 1089. Accord: Mesker 35
Door, Inc., 357 NLRB No. 59, slip op. at 2 (2011).
In the instant case, I find that Espinoza was involved in protected concerted activity when
she reported De La Rosa’s advances toward her to De La Fuente. I also find that Angamarca was
involved in protected concerted activity when she complained about De La Rosa’s assignments 40
regarding the female employees to Soto. Under these circumstances, there is no question that the
Respondent was aware of the protected concerted complaints made by Espinoza and Angamarca.
As noted above, De La Rosa threatened employees with retaliation because he knew that
employees had gone to the office and complained about him. Such a statement by an
acknowledged supervisor demonstrates animus toward the exercise of concerted activity that is 45
protected under the Act. Accordingly, I find the evidence sufficient to conclude that the General
Counsel established a prima facie case under Wright Line.
JD–67–15
16
Turning to the Respondent’s defense, I find that the Respondent has met its burden of
persuasion to establish that the protected concerted activity of Angamarca and Espinoza was not
the motivating factor behind its decision to discipline and discharge them. In this regard, I note
that De Jesus and Yupa had also lodged protected concerted complaints regarding the verbal 5
sexual harassment of De La Rosa, yet no action was taken against them. Considering the record
as a whole, I find that the discipline and discharge of Angamarca and Espinoza was motivated by
their failure to comply with the Respondent’s unilaterally implemented rule requiring all
employees in the packing department to work until 6 p.m., unless they had a medical excuse.
10
The evidence establishes that, in the context of investigating the complaints regarding the
conduct of De La Rosa, De La Fuente learned that certain employees in the packing department
were leaving at 4 p.m. After learning of this, De La Fuente decided to eliminate this practice and
met with employees in the packing department in early December and informed them that it was
compulsory for all employees to work until 6 p.m. In meetings with Angamarca and Espinoza 15
held shortly thereafter on December 2, De La Fuente indicated that the only exception for
leaving early were medical reasons. (R. Exhs. 6 and 7.) While De La Rosa was present when
these announcements were made, there is no evidence to establish that he played any role in this
decision. While De La Rosa threatened employees that because female employees had
complained about him to higher management, he was no longer going to allow them to leave 20
early, I find that this was merely a threat by a supervisor who was angered by the complaints
made about his sexually harassing conduct. The record as a whole convinces me that De La
Fuente alone made the decision to eliminate the discretion previously exercised by De La Rosa
and Reznik to allow employees to leave early and institute a policy in the packing department
requiring all employees to work until 6 p.m. unless they had medical reason to leave earlier.25
I also find that the timing of the discipline and discharge of Angamarca and Espinoza
does not support the contention that these actions were discriminatorily motivated. In this
regard, on December 2, 2014, the Respondent gave Angamarca and Espinoza until January 2,
2015, to coordinate child care in order to comply with the new schedule. On January 6, 2015, 30
Angamarca was given an extension until February 2, 2015, to coordinate child care and on
January 23, Espinoza was given such an extension. Finally, on January 23, 2015, Angamarca and
Espinoza were again informed that the 2015 work schedule needed to be followed and there were
no exceptions for leaving early without a legitimate medical reason. (R. Exhs. 6 and 7.) Thus,
rather than precipitously discharging Angamarca and Espinoza shortly after they had engaged in 35
protected concerted activity in complaining about De La Rosa, the Respondent gave them several
opportunities to comply with the new rule requiring them to work until 6 p.m. before disciplining
and discharging them for failing to comply with it. Under these circumstances, I find that the
Respondent disciplined and discharged Angamarca and Espinoza because they did not comply
with the Respondent’s unlawful unilaterally implemented rule eliminating the discretion of 40
supervisors to allow employees to leave work at 4 p.m., and requiring all employees to work
until 6 p.m. absent a medical reason to leave earlier. I do not find that the discipline and
discharge of Angamarca and Espinoza was motivated by a desire to retaliate against them for
raising protected concerted complaints regarding De La Rosa. Therefore, I shall dismiss the
complaint allegation that the Respondent independently violated Section 8(a)(1) by disciplining 45
and discharging Angamarca and Espinoza. I shall also dismiss the allegations in paragraph V of
the complaint that De La Fuente independently violated Section 8(a)(1) by announcing that
JD–67–15
17
employees would no longer be allowed to leave early unless they had a medical excuse and
threatening employees with discharge and discipline if they failed to adhere to that rule. De La
Fuente’s statements were not motivated by a desire to retaliate against employees for engaging in
protected concerted activity but rather constituted the unlawful imposition of a unilateral rule and
the concomitant threat to discipline employees for violating that rule.5
The Respondent’s Payments to Employees for Reimbursement of Uniform Expense
Deductions
As amended at hearing, paragraph VIII (a) the complaint alleges, in relevant part, that the 10
Respondent refused to bargain regarding the reimbursement to employees of biweekly uniform
rental charges and the calculation of those charges in violation of Section 8(a)(5) and (1) of the
Act.
Facts15
The Respondent provides uniform rental services for its production and warehouse
employees through a third-party, Aramark. Prior to October 2013, the Respondent maintained a
practice of deducting the cost of uniform rental and cleaning services from the paychecks of
employees. For some employees, this resulted in their being paid less than the minimum wage 20
established by the Illinois Minimum Wage Law. On October 24, 2014, Isaias Alarcon, a former
employee of the Respondent, filed a lawsuit “on behalf of himself and other similarly situated
past and present employees” in the in the U.S. District Court for the Northern District of Illinois,
No. 14 cv 8386, alleging, in relevant part, that the deductions for uniform rental and cleaning
services violated the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection25
Act because, for some employees, the deductions caused their hourly wages to be below the
State minimum wage. After the lawsuit was filed, the Respondent, without admitting liability,
agreed to settle the case by providing a full remedy to Alarcon and other similarly situated
employees and former employees. The settlement provided for all back wages as provided by the
Illinois Minimum Wage law; prejudgment interest on the back wages in accordance with the 30
statutory formula; damages pursuant to the statutory formula; and repayment of all unauthorized
deductions for statutory damages as set forth in the relevant statute. Respondent then performed
the calculations pursuant to the above noted formula for Alarcon and all of its similarly situated
employees and former employees who had the cost of uniform rental and cleaning services
deducted from their paychecks between January 1, 2011, and October 31, 2013. On or about 35
January 10, 2015, the Respondent paid the calculated amount in lump-sum checks to all such
employees and former employees to the extent that they could be located. (Jt. Exh. 4.)
Thereafter, on the basis of the settlement described above, on April 8, 2015, Alarcon submitted a
motion to withdraw the complaint in his lawsuit ( Jt. Exh. 3). The Respondent paid out
approximately $90,000 to its current and former employees who were eligible, pursuant to the 40
formula set forth above.
Is undisputed that the Union was not given notice of the Respondent’s payment of the
backpay and interest to employees who were made whole by virtue of the settlement of the
lawsuit referred to above. In the Union’s February 6, 2015 letter to the Respondent, the Union 45
indicated that it had been advised that the Respondent “ has reimbursed employees for uniforms
however the reimbursement was not uniform and was made without explanation regarding the
JD–67–15
18
calculation.” (GC Exh. 4.) The Union requested bargaining regarding the reimbursement to
employees of uniform payments and further requested that the Respondent “provide a list of
employees who received uniform reimbursements and the calculation of the same for each
employee.” The February 16 email sent by the Respondent’s attorney in response indicated that
the Respondent had no obligation to bargain with the Union regarding this matter because the 5
Union had not yet been certified.
Contentions of the Parties
The General Counsel and the Charging Party contend that the backpay payments made by10
the Respondent to employees for unauthorized uniform deductions deducted from wages, and the
statutory interest associated with those payments constitutes wages within the meaning of
Section 8(d) of the Act. The General Counsel and the Charging Party further contend that the
Respondent was obligated to give notice and an opportunity to bargain to the Union prior to
making these payments, and that its failure to do so constitutes a unilateral change in violation of 15
Section 8(a)(5) and (1). The only authority relied on by the General Counsel in support of his
position is Mike O’Connor Chevrolet, supra.
The Respondent contends that it had no obligation to bargain over the backpay and
interest paid to employees pursuant to the settlement of the lawsuit because these payments were 20
mandated by law and thus it had no discretion in the matter. The Respondent contends that the
duty to bargain attaches only when an employer has discretion regarding how to implement
certain changes in employee wages or benefits that are imposed by statute or regulation.
Analysis25
In Long Island Day Care Services, 303 NLRB 112 (1991), the respondent received a
grant from the Federal Government for a 4.75 percent cost of living increase requiring that at
least 65 percent of the grant had to be spent on salary and/or fringe benefits. The employer
unilaterally allocated 100 percent of the 4.75 percent cost-of-living increase to salaries. The 30
Board found that because the employer had discretion in the manner in which it could allocate
this cost-of-living increase, it had an obligation to bargain regarding this cost-of-living increase.
The Board found that the Respondent’s unilateral action in granting the entire 4.75 percent cost-
of-living increase to wages violated Section 8(a)(5) and (1) of the Act. However, the Board
reached a different conclusion regarding a 2 percent cost-of-living adjustment that was funded by 35
the Federal Government. The 2 percent cost-of-living increase was mandated by the Federal
Government to be paid as a 2 percent permanent addition to the salaries of all employees. The
respondent had no discretion with respect to how the 2 percent would be allocated. The
respondent notified employees that they would be receiving a 2 percent permanent salary
increase without giving notice and an opportunity to bargain to the union. The Board found that 40
the employer had a total lack of discretion over implementation of the 2 percent cost-of-living
increase and this established that there was “nothing of substance to bargain about concerning
it.” Id. at 117. Accordingly the Board found that the employer did not violate Section 8(a) and
(5) and (1) of the Act by unilaterally applying the 2 percent cost-of-living increase to wages and
dismissed that allegation in the complaint.45
JD–67–15
19
In the instant case, I find that the payment of back pay and interest to the employees in
order to remedy the alleged violation of the Illinois Minimum Wage Act presents a situation
where there is no obligation to bargain. As part of the settlement the Respondent effectuated a
complete remedy to all of the eligible employees. The amount of money paid to employees in
backpay and interest was paid pursuant to the statutory formula under the Illinois Minimum 5
Wage Act. The Respondent utilized no discretion with regard to the employees who received
payments or the amount of such payments. I find that the Board’s analysis of the 2 percent cost-
of-living increase in Long Island Day Care Services, supra, is applicable to the instant case.
Accordingly, I find that the Respondent’s unilateral action in making payments to employees of
the amounts necessary to make them whole pursuant to the provisions of the Illinois Minimum 10
Wage Act did not violate Section 8(a)(5) and (1) of the Act. Accordingly, I shall dismiss this
allegation of the complaint.
As noted above, on February 6, 2015, the Union requested bargaining regarding the
reimbursement to employees for uniform payments and also requested that the Respondent15
“provide a list of employees who received uniform reimbursements and the calculation of the
same for each employee.” While I have found that the Respondent had no obligation to give
notice and an opportunity to bargain to the Union regarding payments it made to employees for
reimbursement for the deductions made for uniforms, I do find that it had the obligation to
provide the requested information on this matter. The Respondent’s obligation does not arise 20
from the Union’s necessity to have this information in order to intelligently bargain over this
issue, but rather stems from the fundamental right of the Union to obtain information concerning
unit employees’ terms and conditions of employment. The payments made to employees for
reimbursement of the amounts unlawfully deducted from employees’ paychecks pursuant to
Illinois State Law obviously constitutes wages within the meaning of Section 8(d) of the Act.25
I find that the Union’s request for this information is presumptively relevant to the
union’s duty to represent employees. Pavilion and Forestal Nursing & Rehabilitation; Atlanta
Hilton & Tower; Cowles Communication, Inc. supra. At minimum, this information would
enable the Union to understand the basis for the payments made to employees by the Respondent30
and allow it to determine whether all eligible employees had received the appropriate amounts.
Accordingly, I find that the Respondent’s refusal to provide this information to the Union
constitutes a violation of Section 8(a)(5) and (1) of the Act.
The Refusal to Bargain over the Discharges of Employees35
Paragraph IX of the complaint alleges that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally discharging employees Isais Alarcon on October 14, 2014, and
Angamarca and Espinoza on February 5, 2015, and that it exercised discretion in doing so.
The Respondent’s answer admits that it unilaterally discharged the three employees and that it 40
exercised discretion in imposing the discipline. It is undisputed that the Respondent did not give
the Union notice and an opportunity to bargain prior to exercising its discretion in discharging
the three above-named employees.
As noted above on February 6, 2015, the Union requested bargaining regarding the 45
discharges of Angamarca and Espinoza and on February 16, 2015, the Respondent denied the
request to bargain.
JD–67–15
20
Contentions of the Parties
The General Counsel and the Charging Party contend that I should apply the principles
expressed by the Board in Alan Ritchey, Inc., 359 NLRB No. 40 (2012), and, on the basis of
those principles, find that the Respondent has violated Section 8(a)(5) and (1) of the Act by 5
failing to give notice and an opportunity to bargain to the Union before discharging the three
employees. While recognizing that the Board’s decision in Alan Ritchey, Inc., supra, was
invalidated by virtue of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550,
2014 (2014),11 the General Counsel and the Charging Party contend that the principles expressed
in that decision are sound and should be applied to the instant case. The General Counsel further 10
notes that several administrative law judges have issued decisions finding it was appropriate to
apply the reasoning of Alan Ritchey, Inc., and that, in one such decision, Kitsap Tenant Support
Services, Inc., (JD(SF)–29–15) the Board, in an unpublished order dated September 8, 2015,
adopted the administrative law judge’s decision in the absence of exceptions. The General
Counsel further acknowledges, however, that other administrative law judges have declined to 15
apply the principles expressed in Alan Ritchey, Inc., because it has been invalidated pursuant to
Noel Canning, supra, and thus applied the Board’s prior decision regarding this issue in Fresno
Bee, 337 NLRB 1161 (2002), and have dismissed complaint allegations presenting the same
issue raised in the instant case.
20
The Respondent contends primarily that, given the Supreme Court’s invalidation of Alan
Ritchey, Inc. supra, in NLRB v. Noel Canning, supra, I am obligated to apply the principles
expressed in Fresno Bee, supra, and dismiss this complaint allegation on that basis.
Analysis25
In Alan Ritchey, Inc., supra, the Board held that an employer must provide a bargaining
representative notice and an opportunity to bargain with it before exercising its discretion to
impose serious discipline such as suspension, demotion, and discharge on individual employees,
absent a binding process such as a grievance-arbitration system to resolve such disputes. The 30
Board further indicated in Alan Ritchey, Inc., supra, at that it would apply the decision
prospectively only as it was a significant change in the law in this area. Id. slip op. at 11. As
noted above, however, the Board’s decision in Alan Ritchey, Inc., has been invalidated by the
Supreme Court in NLRB v. Noel Canning, and therefore is not binding precedent. Given the
invalidation of the Board’s decision in Alan Ritchey, Inc., its decision in Fresno Bee, is the 35
governing precedent regarding this issue. As noted earlier, I am obligated to apply established
Board precedent, unless it is reversed by the Supreme Court, in deciding the allegations of the
complaint. Pathmark Stores, Inc.; Waco, Inc. It is, of course, also the case that the Board’s
adoption of administrative law judge’s decision to which no exceptions have been filed is not
binding precedent in other cases. Carpenters Local 370 (Eastern Contractors Association), 332 40
NLRB 174, 175 fn. 2 (2000).

11 In NLRB v Noel Canning., the Court concluded that the Board which issued Alan Ritchey, Inc., and
many other decisions, lacked a lawful quorum because the President’s recess appointments for three seats
on the Board were invalid.
JD–67–15
21
Since the Board’s decision in Alan Ritchey, Inc., supra, has been invalidated by NLRB v.
Noel Canning, Fresno Bee, supra, is the existing Board precedent in this area of the law. In
Fresno Bee the Board held that the respondent did not violate Section 8(a)(5) and (1) of the Act
by issuing discretionary discipline to individual employees. Id. at 1186-1188. Accordingly, based
on the Board’s decision in Fresno Bee, I shall dismiss this allegation in the complaint.125
CONCLUSIONS OF LAW
1. The Union is, and at all material times, was the exclusive bargaining representative of
the employees in the following appropriate unit:10
All full-time and regular part-time production/maintenance, production,
maintenance, and shipping/receiving employees employed by the Employer at
its facilities currently located at 7645 North Austin Avenue, Skokie, Illinois and
6431 West Oakton, Morton Grove, Illinois, and 6101 West Grosse Point Road,15
Niles, Illinois; but excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
2. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act by:20
(a) unilaterally implementing a rule at its Niles, Illinois facility ceasing its practice of
allowing employees to leave work early for child care purposes with supervisory approval and
requiring employees to provide a medical excuse if they need to leave work early.
25
(b) enforcing its unilaterally imposed rule at its Niles, Illinois facility regarding the
cessation of its practice of allowing employees to leave work early for child care purposes with
supervisory approval and requiring employees to provide a medical excuse if they need to leave
work early, by disciplining and discharging Maria Angamarca and Josefina Espinoza.
30
(c) refusing to provide relevant and necessary information to the Union regarding its
unilaterally implemented rule regarding the cessation of its practice of allowing employees to
leave work early for child care purposes with supervisory approval at its Niles, Illinois facility,
and the discipline and discharge of Maria Angamarca pursuant to that rule.
35
(d) delaying the provision of relevant and necessary information to the Union regarding
its unilaterally implemented rule regarding the cessation of its practice of allowing employees to
leave work early for child care purposes with supervisory approval its Niles, Illinois facility, and
the discipline and discharge of Josefina Espinoza pursuant to that rule.
40

12 I note that, in view of my finding that the Respondent violated Section 8(a)(5) and (1) of the Act by
implementing the new rule regarding hours of work in the packing department that the Niles facility, and
disciplining and discharging Angamarca and Espinoza pursuant to that rule, I will provide a complete
remedy to them for violations of that type.
JD–67–15
22
(e) refusing to provide relevant and necessary information to the Union regarding a list of
the employees who received reimbursement for the amounts deducted from their paychecks for
uniform rental and cleaning and the calculations of those amounts for each employee.
3. The Respondent, by Meliton Ramos De La Rosa, has engaged in unfair labor practices 5
in violation of Section 8(a)(1) of the Act by threatening employees with retaliation because they
made protected concerted complaints about his conduct.
REMEDY
10
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
Since the Respondent violated Section 8(a)(5) and (1) of the Act by discharging Maria 15
Angamarca and Josefina Espinoza pursuant to an unilaterally implemented rule, it must offer
them reinstatement and make them whole for any loss of earnings and other benefits. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8 (2010).1320
I shall order the Respondent to compensate Maria Angamarca and Josefina Espinoza for
the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file a report
with the Social Security Administration allocating the backpay awards to the appropriate
calendar quarter for them. Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 25
(2014).
In paragraph XII of the complaint, the General Counsel also seeks an order requiring that
the Respondent reimburse Angamarca and Espinoza for all search-for-work and work-related
expenses regardless of whether they received interim earnings in excess of these expenses, or 30
any at all, during any given quarter, or during the overall backpay. At present, Board law
considers such expenses as an offset to discriminatees’ interim earnings rather than calculating
them separately. West Texas Utilities Co., 109 NLRB 936, 939 fn. 3 (1954). As I have noted
earlier in this decision, I am obligated to follow existing Board precedent in resolving the issues

13 At the trial, Respondent’s counsel, Haas, on cross-examination, introduced, over the objections of
the General Counsel and the Charging Party, the permanent resident and Social Security cards of
Angamarca and Espinoza (R. Exhs. 3 and 4). Respondent's counsel claimed that the administrative law
judge’s decision in Farm Fresh, Target 1, LLC, 361 NLRB No. 83 (2014) indicated that the Respondent
could not raise immigration status issues during compliance proceedings unless it was preserved as an
issue at the unfair labor practice hearing. (Tr. 114-117; 163-164) So as not to delay the hearing while
legal research was conducted, I admitted the exhibits based on counsel’s representation. The
Respondent’s counsel asked no questions regarding these documents at the hearing. The General
Counsel's brief points out that in Farm Fresh, supra, the Board affirmed the administrative law judge’s
ruling excluding direct questions about the alleged discriminatees’ immigration status and reiterating its
policy that determining the immigration status of discriminatees is left to compliance. Id. at fns. 1 and 3.
In light of the Board's decision in Fresh Farm, I have given no consideration to R. Exhs 3 and 4 in
reaching my findings and conclusions in this case.
JD–67–15
23
present in this case. Pathmark Stores, Inc., supra. Accordingly, I shall deny the General
Counsel’s request for this additional remedy.
The record establishes that a substantial portion of the bargaining unit is predominantly
Spanish-speaking. In such circumstances, the Board’s policy is to post the notice in multiple 5
languages in order to fully communicate to employees their rights under the Act. Alstyle Apparel,
351 NLRB 1287 (2007). Accordingly, I shall order the notice to be posted in both English and
Spanish.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended14
ORDER
The Respondent, Lifeway Foods, Inc., Morton Grove, Illinois, its officers, agents, 15
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally implementing a rule at its Niles, Illinois facility ceasing its practice of 20
allowing employees to leave work early for child care purposes with supervisory approval and
requiring employees to provide a medical excuse if they need to leave work early.
(b) Enforcing its unilaterally imposed rule at its Niles, Illinois facility regarding the
cessation of its practice of allowing employees to leave work early for child care purposes with 25
supervisory approval and requiring employees to provide medical excuse if they need to leave
work early by disciplining and discharging employees.
(c) Refusing to provide relevant and necessary information to the Union regarding its
unilaterally implemented rule regarding the cessation of its practice of allowing employees to 30
leave work early for child care purposes with supervisory approval at its Niles, Illinois facility,
and the discipline and discharge of Maria Angamarca pursuant to that rule.
(d) Delaying the provision of relevant and necessary information to the Union regarding
its unilaterally implemented rule regarding the cessation of its practice of allowing employees to 35
leave work early for child care purposes with supervisory approval at its Niles, Illinois facility
and the discipline and discharge of Josefina Espinoza pursuant to that rule.
(e) Refusing to provide relevant and necessary information to the Union regarding a list
of the employees who received reimbursement for amounts deducted from their paycheck for 40
uniform rental and cleaning and the calculations of those amounts for each employee.

14 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–67–15
24
(f). Threatening to retaliate against employees because they made protected concerted
complaints about the conduct of a supervisor.
(g) 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.5
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Give notice and an opportunity to bargain to the Union regarding ceasing its practice
at its Niles, Illinois facility of allowing employees to leave work early for child care purposes 10
with supervisory approval and requiring employees to provide a medical excuse if they need to
leave work early. The appropriate unit is:
All full-time and regular part-time time production/maintenance, production,
maintenance, and shipping/receiving employees employed by the Employer at its15
facilities currently located at 7645 North Austin Avenue, Skokie, Illinois and
6431 West Oakton, Morton Grove, Illinois, and 6101 West Grosse Point Road,
Niles, Illinois; but excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
20
(b) Within 14 days from the date of the Board’s Order, offer to Maria Angamarca and
Josefina Espinoza 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.
25
(c) Make Maria Angamarca and Josefina Espinoza whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.
(d) Compensate Maria Angamarca and Josefina Espinoza for the adverse tax 30
consequences, if any, of receiving a lump sum backpay award, and file a report with the Social
Security Administration allocating the backpay award to the appropriate calendar quarter for
them.
(e)Within 14 days from the date of the Board’s Order, remove from its files any reference 35
to the unlawful discharges of Maria Angamarca and Josefina Espinoza and the written warnings
issued to them on February 5, 2015, and within 3 days thereafter notify the them in writing that
this has been done and that the discharges and written warnings will not be used against them in
any way.
40
(f) Provide relevant and necessary information to the Union regarding its unilaterally
implemented rule regarding the cessation of its practice of allowing employees to leave work
early for child care purposes with supervisory approval at its Niles, Illinois facility, and the
discipline and discharge of Maria Angamarca pursuant to that rule.
45
(g) Provide relevant and necessary information to the Union regarding a list of the
employees who received uniform reimbursements and the calculations of tho
employee.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional 5
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social
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.
10
(i) Within 14 days after service by the Region, post at its facilities in
Skokie, and Niles, Illinois, copies of the attached notice marked
Spanish.15 Copies of the notice, on forms provided by the Regional Director for Re
being signed by the Respondent’s authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places including all places where notices 15
to employees are customarily posted. In addition to
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of 20
these proceedings, the Respondent has gone out of business or closed the facil
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 any time
since November 25, 2014.
25
(j) Within 21 days after se
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed ins30
violations of the Act not specifically found.
Dated, Washington, D.C. , December 21, 2015
35

15 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.”
25
se amounts for each
security payment records, timecards, personnel records
Morton Grove,
“Appendix” in both English and
physical posting of paper notices, the notices
ity involved in
rvice by the Region, file with the Regional Director a sworn
ofar as it alleges

Mark Carissimi
Administrative Law Judge
JD–67–15
gion 13, after
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 unilaterally implement a rule at our Niles, Illinois facility ceasing our
practice of allowing employees to leave work early for child care purposes with supervisory
approval and requiring employees to provide a medical excuse if they need to leave work early.
WE WILL NOT enforce a unilaterally imposed rule at our Niles, Illinois facility
regarding the cessation of our practice of allowing employees to leave work early for child care
purposes with supervisory approval and requiring employees to provide medical excuse if they
need to leave work early, by disciplining and discharging employees.
WE WILL NOT refuse to provide relevant and necessary information to the Bakery,
Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO-CLC, Local
Union No. 1 (the Union) regarding our unilaterally implemented rule regarding the cessation of
our practice of allowing employees to leave work early for child care purposes with supervisory
approval at our Niles, Illinois facility, and the discipline and discharge of Maria Angamarca
pursuant to that rule.
WE WILL NOT delay the provision of relevant and necessary information to the Union
regarding our unilaterally implemented rule regarding the cessation of our practice of allowing
employees to leave work early for child care purposes with supervisory approval at our Niles,
Illinois facility, and the discipline and discharge of Josefina Espinoza pursuant to that rule.
WE WILL NOT refuse to provide relevant and necessary information to the Union
regarding a list of the employees who received reimbursement for amounts deducted from their
paychecks for uniform rental and cleaning and the calculations of those amounts for each
employee.
.
WE WILL NOT threaten employees with retaliation for making protected concerted
complaints about the conduct of a supervisor.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL give notice and an opportunity to bargain to the Union regarding ceasing our
practice at our Niles, Illinois facility of allowing employees to leave work early for child care
purposes with supervisory approval and requiring employees to provide a medical excuse if they
need to leave work early. The appropriate unit is:
All full-time and regular part-time time production/maintenance, production,
maintenance, and shipping/receiving employees employed by the Employer at its
facilities currently located at 7645 North Austin Avenue, Skokie, Illinois and
6431 West Oakton, Morton Grove, Illinois, and 6101 West Grosse Point Road,
Niles, Illinois; but excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
WE WILL within 14 days from the date of the Board’s Order, offer to Maria Angamarca
and Josefina Espinoza 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.
WE WILL make Maria Angamarca and Josefina Espinoza whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them, with interest.
WE WILL compensate Maria Angamarca and Josefina Espinoza for the adverse tax
consequences, if any, of receiving a lump sum backpay award, and file a report with the Social
Security Administration allocating the backpay awards to the appropriate calendar quarter for
them.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Maria Angamarca and Josefina Espinoza and the written
warnings issued to them on February 5, 2015, and within 3 days thereafter notify them in writing
that this has been done and that the discharges and written warnings will not be used against
them in any way.
We WILL provide relevant and necessary information to the Union regarding our
unilaterally implemented rule regarding the cessation of our practice of allowing employees to
leave work early for child care purposes with supervisory approval at our Niles, Illinois facility,
and the discipline and discharge of Maria Angamarca pursuant to that rule.
WE WILL provide relevant and necessary information to the Union regarding a list of the
employees who received reimbursement for amounts deducted from their paychecks for uniform
rental and cleaning and the calculations of those amounts for each employee.
LIFEWAY FOODS, INC.
(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.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604-5208
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/13-CA-108215 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, (312) 353-7170.