Lifeway Foods, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 2016

364 NLRB No. 145 (N.L.R.B. 2016)

364 NLRB No. 145
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lifeway Foods, Inc. and Bakery, Confectionary, To-
bacco Workers and Grain Millers International
Union, AFL–CIO–CLC, Local Union No. 1.
Cases 13–CA–140500, 13–CA–146689, and 13–
CA–151341
November 9, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On December 21, 2015, Administrative Law Judge
Mark Carissimi issued the attached decision. The Charg-
ing Party filed exceptions with supporting argument, the
General Counsel filed cross-exceptions and a supporting
brief, and the Respondent filed briefs in opposition to the
exceptions and cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions and to adopt
the recommended Order as modified and set forth in full
below.2

1 The Charging Party and General Counsel except to the judge’s
dismissal of complaint allegations that the Respondent violated Sec.
8(a)(5) and (1) of the Act by failing to provide the Union with notice
and an opportunity to bargain before discharging employees Maria
Angamarca, Josefina Espinoza, and Isaias Alarcon. They contend that
the Respondent had a duty to engage in bargaining before it discharged
these employees because the discharge decisions were discretionary. In
Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016),
the Board recently held that discretionary discipline is a mandatory
subject of bargaining and that employers therefore may not impose
serious discipline unilaterally. However, the Board also decided to
apply that holding prospectively only. Since this case was pending
when Total Security Management issued, the holding of that decision
does not apply here. Accordingly, we affirm the judge’s dismissal of
these complaint allegations. Member Miscimarra adheres to his dissent
in Total Security Management, id., slip op. at 17–42, and would not
require employers to engage in preimposition discipline bargaining. On
this basis, he concurs in the dismissal of the complaint allegations.
There are no exceptions to the judge’s dismissal of other complaint
allegations or to any of the violations of the Act the judge found.
2 We shall modify the judge’s recommended tax compensation and
Social Security reporting remedy in accordance with our decision in
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). We shall
modify the judge’s recommended Order and substitute a new notice to
reflect this remedial change and to conform to the Board’s standard
remedial language.
In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we amend the judge’s remedy to require the
Respondent to compensate affected employees for their search-for-
work and interim employment expenses regardless of whether those
expenses exceed interim earnings. Search-for-work and interim em-
ployment expenses shall be calculated separately from taxable net
ORDER
The Respondent, Lifeway Foods, Inc., Niles, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of
employment of its unit employees.
(b) Enforcing any unilaterally changed terms and con-
ditions of employment of its unit employees.
(c) Refusing to bargain collectively with the Bakery,
Confectionery, Tobacco Workers and Grain Millers In-
ternational Union, AFL–CIO–CLC, Local Union No. 1
(the Union) by failing and refusing to furnish and/or by
unreasonably delaying in furnishing it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(d) Threatening employees with retaliation if they en-
gage in protected concerted activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the change to its past practice of permitting
employees to leave early with the permission of their
supervisor because of child care needs.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and regular part-time time produc-
tion/maintenance, production, maintenance, and ship-
ping/receiving employees employed by the Employer
at its facilities currently located at 7645 North Austin
Avenue, Skokie, Illinois and 6431 West Oakton, Mor-
ton 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.
(c) To the extent it has not already done so, furnish to
the Union in a timely manner the information requested
by the Union on February 6, 2015.

backpay, with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). For the reasons stated in his
separate opinion in King Soopers, supra, slip op. at 9–16, Member
Miscimarra would adhere to the Board’s former approach, treating
search-for-work and interim employment expenses as an offset against
interim earnings.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) Within 14 days from the date of this Order, offer
Maria Angamarca and Josefina Espinoza full reinstate-
ment 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.
(e) Make Maria Angamarca and Josefina Espinoza
whole for any loss of earnings and other benefits suffered
as a result of their discharges, in the manner set forth in
the remedy section of the judge’s decision as amended in
this decision.
(f) Compensate Maria Angamarca and Josefina Espi-
noza for the adverse tax consequences, if any, of receiv-
ing lump sum backpay awards, and file with the Regional
Director for Region 13, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
(g) Within 14 days from the date of this Order, remove
from its 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.
(h) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its Niles, Illinois facility copies of the attached notice
marked “Appendix” in both English and Spanish.3 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November
25, 2014.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation 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
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. November 9, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
LIFEWAY FOODS, INC. 3
WE WILL NOT change your terms and conditions of
employment without first notifying the Bakery, Confec-
tionery, Tobacco Workers and Grain Millers Internation-
al Union, AFL–CIO–CLC, Local Union No. 1 (the Un-
ion) and giving it an opportunity to bargain.
WE WILL NOT enforce any unilaterally changed terms
and conditions of employment against you.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish and/or unreason-
ably delaying in furnishing it with requested information
that is relevant and necessary to the Union’s performance
of its functions as the collective-bargaining representa-
tive of our unit employees.
WE WILL NOT threaten you with retaliation if you en-
gage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the change to our past practice of
permitting employees to leave early with the permission
of their supervisor because of child care needs.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
our unit employees, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of our employees in the following bargaining
unit:
All full-time and regular part-time time produc-
tion/maintenance, production, maintenance, and ship-
ping/receiving employees employed by the Employer
at its facilities currently located at 7645 North Austin
Avenue, Skokie, Illinois and 6431 West Oakton, Mor-
ton 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 furnish to the Union in a timely manner the
information it requested on February 6, 2015, to the ex-
tent we have not already provided it.
WE WILL, within 14 days from the date of the Board’s
Order, offer Maria Angamarca and Josefina Espinoza full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
WE WILL make Maria Angamarca and Josefina Espi-
noza whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and
interim employment expenses.
WE WILL compensate Maria Angamarca and Josefina
Espinoza for the adverse tax consequences, if any, of
receiving lump sum backpay awards, and WE WILL file
with the Regional Director for Region 13, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Maria Angamarca and Josefina Espino-
za and the written warnings issued to them on February
5, 2015, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the dis-
charges and written warnings will not be used against
them in any way.
LIFEWAY FOODS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-146689 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Melinda Hensel, Esq., for the General Counsel.
Douglas Haas and Amy Moor Gaylord, Esqs., for the Respond-
ent.
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 Interna-
tional Union, AFL–CIO–CLC, Local Union No. 1 (the Charg-
ing Party) filed the charge in Case 13–CA–140500 on Novem-
ber 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 com-
plaint, 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
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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 January 5, 2015, em-
ployees 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 retalia-
tion for the protected concerted complaints of employees re-
garding De La Rosa. The complaint further alleges that the
Respondent violated 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 con-
certed activities by reporting De La Rosa for sexual harass-
ment.
Paragraph VII of the complaint alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally im-
plementing 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.
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 bar-
gain over the changes made to the Respondent’s scheduling
policy; the discipline and discharge of Angamarca and Espino-
za; and its reimbursement to employees of biweekly uniform
rental charges and the calculation of those charges.
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 Alar-
con, Angamarca, and Espinoza.
As amended at the hearing, paragraph X of the complaint al-
leges 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 infor-
mation: a list of employees who received uniform reimburse-
ment and the calculation of the same for each employee; docu-
ments regarding the discharge of Espinoza and Angamarca; and
documents regarding the change in the hours of work for cer-
tain warehouse employees from 4 p.m. to a later time.
On the entire record,1 including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed

1 At the hearing, Jt. Exhs. 1 through 4 were proffered without objec-
tion but I inadvertently failed to specifically indicate they were admit-
ted. Those exhibits are formally admitted into the record.
2 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 in-
stances, 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 deci-
sions 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
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with offices and places of
business in Morton Grove, Niles, and Skokie, Illinois, and is
engaged in the supply, manufacture, and distribution of cul-
tured 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 that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
As noted above, the Respondent is engaged in the manufac-
ture and distribution of cultured dairy products. The Respond-
ent’s Morton Grove and Skokie facilities are production facili-
ties, while the Niles facility is the distribution facility. All of
the complaint allegations involve the Niles facility which em-
ploys approximately 70 employees. During the time material 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”3 Reznik
was the warehouse manager at the Niles facility. The Respond-
ent admits that, during the material time, De La Fuente, De La
Rosa, and Reznik were supervisors within the meaning of Sec-
tion 2(11) of the Act and that Soto was an agent within the
meaning of Section 2(13) of the Act.
Pursuant to a petition filed in Case 13–RC–113248, an elec-
tion 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 ballots were to be counted pursuant to
the parties’ agreement, and 12 challenged ballots, an insuffi-
cient number to affect the results of the election. After the elec-
tion, 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 repre-
sentative of the employees in the following appropriate unit:
All full-time and regular part-time time produc-
tion/maintenance, production, maintenance, and ship-
ping/receiving employees employed by the Employer at its
facilities currently located at 7645 North Austin Avenue,

NLRB 939, 939–940 (2007). In addition, I have carefully considered
all the testimony in contradiction to my factual findings and have dis-
credited such testimony.
3 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 mate-
rial time.
LIFEWAY FOODS, INC. 5
Skokie, Illinois and 6431 West Oakton, Morton Grove, Illi-
nois, and 6101 West Grosse Point Road, Niles, Illinois; but
excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
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 Respond-
ent’s overall refusal to bargain violates Section 8(a)(5) and (1).
The Board has not yet issued a decision in that case.
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 re-
ceiving dock area. The employee time clock is located at that
entrance. Reznik’s office is several hundred feet away the ship-
ping 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. 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 em-
ployees are female.
The 8(a)(5) and (1) Allegations Regarding the Discipline and
Discharge of Angamarca and Espinoza
Facts
Packing Department Employees Leaving at 4 p.m.
Maria Angamarca testified with the aid of a Spanish inter-
preter. Angamarca worked at the Respondent’s Niles facility as
a packing employee from February 2, 2008, until she was dis-
charged 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 undeter-
mined 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 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 pre-
sent at the Niles facility, when employees in the packing de-
partment were shown a video regarding the Union. In the pres-
ence 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 responded 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 Angamarca, when she met with “Mis-
cha,” 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 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.4
Beginning in February 2014, Angamarca’s time records re-
flect that she left work at 4 p.m. approximately 2 days a week
during the months of February and March. (R. Exh. 8.) Anga-
marca testified that in approximately April 2014 she began to
clock out and leave work at 4 p.m. on a regular basis. Anga-
marca’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, Chris-
tina Flores, and Veronica Suarez, also began to clock out and
leave work at 4 p.m. on certain days.
Josefina Espinoza testified with the aid of a Spanish inter-
preter. 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 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.5 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 2014 she asked de la Rosa if she

4 Michael Reznik testified that he is also known by the name “Mis-
cha.” 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 Rez-
nik’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 indi-
cation 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 indi-
cated 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.
5 De La Rosa did not testify at the hearing. The record establishes
that he resigned his employment with the Respondent on January 23,
2015.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 hear-
ing, Arteta was a supervisor in the shipping and receiving de-
partment and reported to Reznik.6 Since De La Rosa’s resigna-
tion on January 23, 2015, Arteta has also supervised the pack-
ing 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
told Arteta that he knew of it. Arteta did not report his observa-
tions 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 ap-
proximately 2 years. His practice has been that on Friday the
schedule is set for the following week. Prior to his resignation,
De La Rosa assisted Reznik in scheduling employees and Ar-
teta has assisted him in this regard since De La Rosa’s resigna-
tion.
Employees Complain About De La Rosa
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. 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 Espi-
noza that nobody would know that they were going out. Espi-
noza told him no. De La Rosa then told Espinoza that she was
going to have to 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.
According to Arteta’s uncontradicted testimony, in late No-
vember 2014, employee Jasmine Bahena told him that employ-
ee Maura De Jesus wanted to speak with him. When Arteta
spoke to De Jesus she informed him that De La Rosa was ver-
bally 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 re-
ported to him. The next day, Arteta called De La Fuente and

6 I find, based on the record evidence, that Arteta is a supervisor
within the meaning of Sec. 2(11) of the Act.
informed him that there were some employees in the packing
department who wanted to speak to him about a serious matter.7
De La Fuente and his assistant, 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 uncomfort-
able.
De La Fuente and Soto then interviewed Espinoza. Based on
Espinoza’s credited 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 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 her.8

7 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 meet-
ings with De La Fuente regarding De La Rosa occurred in late Novem-
ber 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)
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.
8 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 meet-
ing itself reflected certainty. While I credit De La Fuente’s testimony to
the extent that he testified that he interviewed Espinoza and Yupa sepa-
rately regarding the alleged sexual harassment, I do not credit his testi-
mony 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
LIFEWAY FOODS, INC. 7
According to Angamarca’s uncontradicted testimony, in No-
vember 2014 she was called to the office by Soto. Soto asked
her if she wanted to talk to him and she responded “no.” Soto
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 this meeting, Anga-
marca did not relay any complaints regarding De La Rosa sex-
ually 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
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 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 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.)9
Based on the credited testimony of Angamarca, Espinoza,
and Yupa, I find that De La 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 threaten-
ing to retaliate against employees who had raised protected

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 1 day is implausi-
ble and I do not credit his testimony that he had a second meeting that
day with Espinoza.
9 While Yupa’s testimony is somewhat confusing regarding specifi-
cally 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.
concerted complaints about him, De La Rosa’s statements
violated Section 8(a)(1) of the Act.
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 pack-
ing department. De La Rosa and 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 em-
ployees had to work under that schedule. Angamarca indicated
that she could not work late and told De La 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.
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 reiter-
ated that the 2015 work schedule would have to be followed
and there were no exceptions for leaving early without a legiti-
mate 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 work schedule, Angamarca con-
tinued to leave work at 4 p.m. on a daily basis (R. Exh. 8); Es-
pinoza 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 separately and De La Fuente
reiterated that the 2015 work schedule would have to be fol-
lowed and that there were no exceptions for leaving early with-
out 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 indi-
cated that the proper call off procedure needed to be followed
in case of being 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 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 leav-
ing 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.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In February 2015, Yupa, who was pregnant at the time, pre-
sented 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.
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 February
6, 2015, Zavala sent a letter to De La Fuente (GC Exh. 4) stat-
ing, 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 Es-
pinoza 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 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 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 Re-
spondent had no obligation to bargain with the Union over the
policy of leaving work before the end of shifts and the termina-
tions of the two employees, because the Union had not been
certified. (GC Exh. 5.) However, on July 6, 2015, the Respond-
ent did provide to the Union the documents related to the disci-
pline and termination of Espinoza (GC Exhs. 12 and 18).
Contentions of the Parties
The General Counsel and the Charging Party contend that
the Respondent violated 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 em-
ployees could leave at 4 p.m. with the permission of their su-
pervisor.
In asserting that its conduct did not violate Section 8(a)(5)
and (1), the Respondent first 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 with
respect to allowing employees to leave early from the packing
department sufficient to establish a bargaining obligation.
Analysis
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 fol-
low 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 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 em-
ployer acts at its peril in making changes to the terms and con-
ditions 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
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 employ-
ees unilaterally, without giving notice and an opportunity to
bargain to a union representing the employees, it violates Sec-
tion 8(a)(5) and (1). NLRB v. Katz, 369 U.S. 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), 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. Tuskeg-
ee Transportation System, 308 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, 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 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, Angamarca began leaving at 4
p.m. approximately 2 to 3 days a week and in April 2014, be-
gan 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 supervi-
sor, De la Rosa, observed her leaving at 4 p.m. and never ques-
tioned her about it. Shortly thereafter, Espinoza and Yupa re-
ceived permission from their immediate supervisor, De La Ro-
LIFEWAY FOODS, INC. 9
sa, to leave work at 4 p.m. up to 3 days a week in order to pick
up their children. In addition, another supervisor, Arteta, ob-
served 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 re-
sponsible for establishing the schedule employees at the Niles
facility on a weekly basis.
Prior to his resignation in January 2015, De La Rosa assisted
Reznik in making out the schedule. Since then Arteta has as-
sisted Reznick in that regard. Thus, it is clear that three supervi-
sors 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 4
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 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 medi-
cal 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 so finding, I do not agree with the
Respondent’s contention that De La Fuente was merely reiterat-
ing the Respondent’s existing policy. Rather, an established
practice had been conducted 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 viola-
tive of Section 8(a)(5) and (1). In Wayne County the respond-
ent’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 regu-
lar 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 circum-
stances, the Board found that the 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 unilat-
eral 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 allow-
ing employees to make individual adjustments with their super-
visors regarding their work schedules. The Board rejected the
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. un-
less 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 Na-
tional Association of Government Employees, to be distinguish-
able. In that case one department supervisor allowed some em-
ployees 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 arbi-
trator’s decision. As noted above, in 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 approv-
al.
As noted above, the complaint also alleges that, as a result of
the Respondent’s unilateral 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 dis-
charged 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
factor in the discipline or discharge of employee, the discipline
and discharge violates Section 8 (a)(5) and (1) of the Act. Con-
sec 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 discipline and discharge of Angamarca
and Espinoza, their discipline and discharge violates Section
8(a)(5) and (1) of the Act.
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
February 6, 2015, the Union sent a letter to the Respondent
requesting information regarding the change in hours for cer-
tain 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 Espinoza and the
change in work hours as it applied to her.
It is clearly established that an employer is obligated to pro-
vide 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 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
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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 in-
volves a mandatory subject of bargaining. Accordingly, the
Respondent was obligated to provide the requested information
on that basis.
In addition, the Board has long held that information con-
cerning 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 information regarding the
change in hours for certain employees in the packing depart-
ment and the information regarding the discipline and discharg-
es 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, consti-
tutes a violation of Section 8(a)(5) and (1) of the Act.
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 Re-
spondent 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 ex-
planation, 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 infor-
mation to the Union regarding the discipline and discharge of
Espinoza and the change in work hours as it applied to her vio-
lates Section 8(a)(5) and (1) of the Act.
The Complaint Allegations that the Discipline and Discharge
of Angamarca and Espinoza Violated
Section 8(a) (1) of the Act.
Contentions of the Parties
The General Counsel and the Charging Party contend that
the discipline and discharge of Angamarca and Espinoza inde-
pendently violated Section 8(a)(1) of the Act because the Re-
spondent took such action in response to their concerted com-
plaints regarding the sexual harassment of De La Rosa.
The Respondent contends that neither Angamarca nor Espi-
noza engaged in protected concerted activity. The Respondent
further contends that if I should find that they engaged in pro-
tected concerted activity there is insufficient evidence to estab-
lish that such conduct motivated the Respondent to terminate
them in retaliation for such conduct in violation of Section
8(a)(1) of the Act.
Analysis
In support of their position that the discipline and discharge
of Angamarca and Espinoza was motivated by protected con-
certed complaints that they made, the General Counsel and the
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 pro-
tected 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 management.” (Citation
omitted). Id. slip op. at 3. The Board also noted that “the activi-
ty of a single employee in enlisting the support of his fellow
employees for their mutual aid and protection is as much ‘con-
certed 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 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 had
reported to him. The next day Arteta contacted De La Fuente
and informed him that there were some employees in the pack-
ing department who wanted speak to him about a serious mat-
ter. 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 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 regard-
ing De La Rosa sexually harassing her.
It is clear that female packing department employees dis-
cussed among themselves De La Rosa’s sexually harassing
conduct and then De Jesus reported that conduct to Arteta. Af-
ter 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 inappropriate ad-
vances that De La Rosa may have made to her when she was an
LIFEWAY FOODS, INC. 11
interview by Soto, but she did complain about de la Rosa’s
“inequality” in making assignments regarding the female em-
ployees.
I find that, under the principles expressed in Fresh & Easy
Neighborhood Market, the evidence establishes that De Jesus,
Espinoza, and Yupa were engaged in protected concerted activ-
ity as they brought to management complaints regarding De La
Rosa’s inappropriate sexual advances. Angamarca did not spe-
cifically relay any complaints about sexual harassment by De
La Rosa, but she did report to management her complaint re-
garding his inequality in assignments among the female em-
ployees. As Fresh & Easy Neighborhood Market makes clear,
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 fel-
low 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 activi-
ty when she complained to Soto regarding De La Rosa’s as-
signments regarding the female employees.
In Ferguson Enterprises, Inc., 355 NLRB 1121 fn. 3 (2010),
the Board approved the use of a Wright Line analysis in deter-
mining 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 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983), the Board estab-
lished 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 discrim-
inatorily motivated and violative of the Act, the General Coun-
sel must first establish, by a preponderance of the evidence, an
employee’s protected conduct was a motivating factor in the
employer’s decision. The elements commonly required to sup-
port such a showing are union activity by the employee, em-
ployer 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 pro-
tected conduct.” Wright Line, supra, at 1089. Accord: Mesker
Door, Inc., 357 NLRB 591, 592 (2011).
In the instant case, I find that Espinoza was involved in pro-
tected concerted activity when she reported De La Rosa’s ad-
vances toward her to De La Fuente. I also find that Angamarca
was involved in protected concerted activity when she com-
plained about De La Rosa’s assignments regarding the female
employees to Soto. Under these circumstances, there is no
question that the Respondent was aware of the protected con-
certed complaints made by Espinoza and Angamarca. As noted
above, De La Rosa threatened employees with retaliation be-
cause he knew that employees had gone to the office and com-
plained about him. Such a statement by an acknowledged su-
pervisor demonstrates animus toward the exercise of concerted
activity that is protected under the Act. Accordingly, I find the
evidence sufficient to conclude that the General Counsel estab-
lished a prima facie case under Wright Line.
Turning to the Respondent’s defense, I find that the Re-
spondent 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 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.
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 depart-
ment were leaving at 4 p.m. After learning of this, De La
Fuente decided to eliminate this practice and met with employ-
ees 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 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 announce-
ments 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 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 convinc-
es 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.
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 or-
der to comply with the new schedule. On January 6, 2015,
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 protected concerted
activity in complaining about De La Rosa, the Respondent gave
them several opportunities to comply with the new rule requir-
ing them to work until 6 p.m. before disciplining and discharg-
ing them for failing to comply with it. Under these circum-
stances, I find that the Respondent disciplined and discharged
Angamarca and Espinoza because they did not comply with the
Respondent’s unlawful unilaterally implemented rule eliminat-
ing the discretion of supervisors to allow employees to leave
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 moti-
vated 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 inde-
pendently violated Section 8(a)(1) by disciplining and discharg-
ing Angamarca and Espinoza. I shall also dismiss the allega-
tions in paragraph V of the complaint that De La Fuente inde-
pendently violated Section 8(a)(1) by announcing that employ-
ees 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.
The Respondent’s Payments to Employees for Reimbursement
of Uniform Expense Deductions
As amended at hearing, paragraph VIII (a) the complaint al-
leges, in relevant part, that the 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.
Facts
The Respondent provides uniform rental services for its pro-
duction and warehouse employees through a third-party, Ara-
mark. 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 employ-
ees, this resulted in their being paid less than the minimum
wage established by the Illinois Minimum Wage Law. On Oc-
tober 24, 2014, Isaias Alarcon, a former employee of the Re-
spondent, filed a lawsuit “on behalf of himself and other simi-
larly 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 Collection Act
because, for some employees, the deductions caused their hour-
ly wages to be below the State minimum wage. After the law-
suit 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 statutory formula; damages pur-
suant to the statutory formula; and repayment of all unauthor-
ized deductions for statutory damages as set forth in the rele-
vant statute. Respondent then performed the calculations pursu-
ant to the above noted formula for Alarcon and all of its simi-
larly 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 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 formula set forth above.
Is undisputed that the Union was not given notice of the Re-
spondent’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 indicated that it had been advised that
the Respondent “has reimbursed employees for uniforms how-
ever the reimbursement was not uniform and was made without
explanation regarding the calculation.” (GC Exh. 4.) The Union
requested bargaining regarding the reimbursement to employ-
ees of uniform payments and further requested that the Re-
spondent “provide a list of employees who received uniform
reimbursements and the calculation of the same for each em-
ployee.” The February 16 email sent by the Respondent’s attor-
ney in response indicated that the Respondent had no obligation
to bargain with the Union regarding this matter because the
Union had not yet been certified.
Contentions of the Parties
The General Counsel and the Charging Party contend that
the backpay payments made by 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 Gen-
eral 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
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 mandat-
ed by law and thus it had no discretion in the matter. The Re-
spondent 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.
Analysis
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 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 ad-
LIFEWAY FOODS, INC. 13
justment that was funded by 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 re-
spondent 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 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 unilat-
erally applying the 2 percent cost-of-living increase to wages
and dismissed that allegation in the complaint.
In the instant case, I find that the payment of back pay and
interest to the employees in order to remedy the alleged viola-
tion of the Illinois Minimum Wage Act presents a situation
where there is no obligation to bargain. As part of the settle-
ment the Respondent effectuated a complete remedy to all of
the eligible employees. The amount of money paid to employ-
ees in backpay and interest was paid pursuant to the statutory
formula under the Illinois Minimum Wage Act. The Respond-
ent 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 in-
stant case. Accordingly, I find that the Respondent’s unilateral
action in making payments to employees of the amounts neces-
sary to make them whole pursuant to the provisions of the Illi-
nois Minimum 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 uni-
form payments and also requested that the Respondent “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 obliga-
tion does not arise from the Union’s necessity to have this in-
formation 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 reim-
bursement of the amounts unlawfully deducted from employ-
ees’ paychecks pursuant to Illinois State Law obviously consti-
tutes wages within the meaning of Section 8(d) of the Act.
I find that the Union’s request for this information is pre-
sumptively 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 Respondent and
allow it to determine whether all eligible employees had re-
ceived 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 Employees
Paragraph IX of the complaint alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally dis-
charging employees Isais Alarcon on October 14, 2014, and
Angamarca and Espinoza on February 5, 2015, and that it exer-
cised discretion in doing so. The Respondent’s answer admits
that it unilaterally discharged the three employees and that it
exercised discretion in imposing the discipline. It is undisputed
that the Respondent did not give the Union notice and an op-
portunity to bargain prior to exercising its discretion in dis-
charging the three above-named employees.
As noted above on February 6, 2015, the Union requested
bargaining regarding the discharges of Angamarca and Espino-
za and on February 16, 2015, the Respondent denied the re-
quest to bargain.
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 396 (2012), and, on the basis of those
principles, find that the Respondent has violated Section 8(a)(5)
and (1) of the Act by 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),10 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 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 un-
published order dated September 8, 2015, adopted the adminis-
trative law judge’s decision in the absence of exceptions. The
General Counsel further acknowledges, however, that other
administrative law judges have declined to 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 present-
ing the same issue raised in the instant case.
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.
Analysis
In Alan Ritchey, Inc., supra, the Board held that an employer
must provide a bargaining representative notice and an oppor-

10 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.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tunity to bargain with it before exercising its discretion to im-
pose serious discipline such as suspension, demotion, and dis-
charge on individual employees, absent a binding process such
as a grievance-arbitration system to resolve such disputes. The
Board further indicated in Alan Ritchey, Inc., supra, at that it
would apply the decision prospectively only as it was a signifi-
cant 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 Can-
ning, and therefore is not binding precedent. Given the invali-
dation of the Board’s decision in Alan Ritchey, Inc., its decision
in Fresno Bee, is the 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 decid-
ing the allegations of the complaint. Pathmark Stores, Inc.;
Waco, Inc. It is, of course, also the case that the Board’s adop-
tion of administrative law judge’s decision to which no excep-
tions have been filed is not binding precedent in other cases.
Carpenters Local 370 (Eastern Contractors Association), 332
NLRB 174, 175 fn. 2 (2000).
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 Fres-
no Bee the Board held that the respondent did not violate Sec-
tion 8(a)(5) and (1) of the Act by issuing discretionary disci-
pline 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.11
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:
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, Niles, Illinois; but excluding office clerical employees
and guards, professional employees and supervisors as de-
fined 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:
(a) Unilaterally implementing a rule at its Niles, Illinois fa-
cility 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.
(b) Enforcing its unilaterally imposed rule at its Niles, Illi-
nois facility regarding the cessation of its practice of allowing
employees to leave work early for child care purposes with

11 I note that, in view of my finding that the Respondent violated
Sec. 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.
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.
(c) Refusing to provide relevant and necessary information
to the Union regarding its unilaterally implemented rule regard-
ing 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.
(d) Delaying the provision of relevant and necessary infor-
mation 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 ap-
proval its Niles, Illinois facility, and the discipline and dis-
charge 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 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 en-
gaged in unfair labor practices 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
Having found that the Respondent has engaged in certain un-
fair 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 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 6 (2010).12

12 At the trial, Respondent’s counsel, Haas, on cross-examination,
introduced, over the objections of the General Counsel and the Charg-
ing Party, the permanent resident and Social Security cards of Anga-
marca 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 discrimi-
natees’ immigration status and reiterating its policy that determining
the immigration status of discriminatees is left to compliance. Id. at fns.
1 and 3. I n 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 con-
clusions in this case.
LIFEWAY FOODS, INC. 15
I shall order the Respondent to compensate Maria Anga-
marca and Josefina Espinoza for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file a re-
port 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.
(2014).
In paragraph XII of the complaint, the General Counsel also
seeks an order requiring that the Respondent reimburse Anga-
marca and Espinoza for all search-for-work and work-related
expenses regardless of whether they received interim earnings
in excess of these expenses, or 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 present in this case. Pathmark
Stores, Inc., supra. Accordingly, I shall deny the General Coun-
sel’s request for this additional remedy.
The record establishes that a substantial portion of the bar-
gaining unit is predominantly Spanish-speaking. In such cir-
cumstances, the Board’s policy is to post the notice in multiple
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 Eng-
lish and Spanish.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Lifeway Foods, Inc., Morton Grove, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally implementing a rule at its Niles, Illinois fa-
cility 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.
(b) Enforcing its unilaterally imposed rule at its Niles, Illi-
nois 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 medi-
cal 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 regard-
ing 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.
(d) Delaying the provision of relevant and necessary infor-
mation to the Union regarding its unilaterally implemented rule

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
regarding the cessation of its practice of allowing employees to
leave work early for child care purposes with supervisory ap-
proval at its Niles, Illinois facility and the discipline and dis-
charge 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
uniform rental and cleaning and the calculations of those
amounts for each employee.
(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.
2. Take the following affirmative action necessary to effec-
tuate 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
with supervisory approval and requiring employees to provide a
medical excuse if they need to leave work early. The appropri-
ate unit is:
All full-time and regular part-time time produc-
tion/maintenance, production, maintenance, and ship-
ping/receiving employees employed by the Employer at its
facilities currently located at 7645 North Austin Avenue,
Skokie, Illinois and 6431 West Oakton, Morton Grove, Illi-
nois, and 6101 West Grosse Point Road, Niles, Illinois; but
excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
(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 substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(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 consequences, if any, of receiving a lump sum
backpay award, and file a report with the Social Security Ad-
ministration allocating the backpay award to the appropriate
calendar quarter for them.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges of
Maria Angamarca and Josefina Espinoza and the written warn-
ings 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.
(f) Provide relevant and necessary information to the Union
regarding its unilaterally implemented rule regarding the cessa-
tion of its practice of allowing employees to leave work early
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for child care purposes with supervisory approval at its Niles,
Illinois facility, and the discipline and discharge of Maria
Angamarca pursuant to that rule.
(g) Provide relevant and necessary information to the Union
regarding a list of the employees who received uniform reim-
bursements and the calculations of those amounts for each em-
ployee.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, 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.
(i) Within 14 days after service by the Region, post at its fa-
cilities in Morton Grove, Skokie, and Niles, Illinois, copies of
the attached notice marked “Appendix” in both English and
Spanish.14 Copies of the notice, on forms provided by the Re-
gional Director for Region 13, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices 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 al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since November 25, 2014.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C., December 21, 2015
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 no-
tice.

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
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, Illi-
nois facility ceasing our practice of allowing employees to
leave work early for child care purposes with supervisory ap-
proval 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 in-
formation to the Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union, AFL–CIO–CLC, Local Un-
ion No. 1 (the Union) regarding our unilaterally implemented
rule regarding the cessation of our practice of allowing employ-
ees 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 implement-
ed rule regarding the cessation of our practice of allowing em-
ployees to leave work early for child care purposes with super-
visory 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 in-
formation 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 supervi-
sor.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL give notice and an opportunity to bargain to the Un-
ion regarding ceasing our practice at our Niles, Illinois facility
of allowing employees to leave work early for child care pur-
poses 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 produc-
tion/maintenance, production, maintenance, and ship-
ping/receiving employees employed by the Employer at its
facilities currently located at 7645 North Austin Avenue,
Skokie, Illinois and 6431 West Oakton, Morton Grove, Illi-
nois, and 6101 West Grosse Point Road, Niles, Illinois; but
excluding office clerical employees and guards, professional
employees and supervisors as defined in the Act.
LIFEWAY FOODS, INC. 17
WE WILL within 14 days from the date of the Board’s Order,
offer to Maria Angamarca and Josefina Espinoza full rein-
statement 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 Espi-
noza for the adverse tax consequences, if any, of receiving a
lump sum backpay award, and file a report with the Social Se-
curity 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 reim-
bursement for amounts deducted from their paychecks for uni-
form rental and cleaning and the calculations of those amounts
for each employee.
LIFEWAY FOODS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-140500 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.