Bakery, Confectionery and Tobacco Workers International Union, Local No. 213, AFL-CIO-CLC (Krispy Kreme Division, Beatrice Foods Co.)

National Labor Relations Board - Board Decisions

May 7, 1982

261 N.L.R.B. 773 (N.L.R.B. 1982)

BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
Bakery, Confectionery and Tobacco Workers Inter-
national Union, Local No. 213, AFL-CIO-CLC
and Krispy Kreme Division, Beatrice Foods Co.
Krispy Kreme Division, Beatrice Foods Co. and
Bakery, Confectionery and Tobacco Workers
International Union, Local No. 213, AFL-CIO-
CLC, Petitioner. Cases 9-CB-4595 and 9-RC-
13315
May 7, 1982
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On September 30, 1981, Administrative Law
Judge John H. West issued the attached Decision
in this proceeding. Thereafter, the Charging Party
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucat Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
In adopting the Administrative Law Judge's credibility findings, how-
ever, we disavow his adverse inference based upon the General Counsel's
failure to call former employee Napper as a corroborating witness. We
note that Napper was equally available to Respondent to refute testimony
in support of the complaint allegations as she was to the General Counsel
to corroborate such testimony. In such circumstances, we have conclud-
ed that no inference should be drawn. Hitchiner Manufacturing Company,
243 NLRB 927 (1979).
2 In view of the Administrative Law Judge's credibility findings that
employee union activist Foote made no statements contrary to the hold-
ing in N.LR.B. v. Savair Manufacturing Ca, 414 U.S. 270 (1973), we find
it unnecessary to consider Foote's status as an agent of Respondent.
261 NLRB No. 114
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Bakery, Confectionery
and Tobacco Workers International Union, Local
No. 213, AFL-CIO-CLC, and that, pursuant to
Section 9(a) of the National Labor Relations Act,
as amended, the said labor organization is the ex-
clusive representative of all the employees in the
following appropriate unit for the purposes of col-
lective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment:
All full and regular part-time production em-
ployees, packing employees, wrapping employ-
ees, shipping employees, sanitation workers
and in store sales employees employed by the
Employer at its 3920 Seventh Street Road and
3000 Bardstown Road, Louisville, Kentucky
locations, but excluding all truck drivers,
office clerical employees and all professional
employees, guards and supervisors as defined
in the Act.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge: The
charge in Case 9-CB4595 was filed by Krispy Kreme
Division, Beatrice Foods Co. (herein called Krispy
Kreme or the Charging Party) on June 5, 1980.' The
complaint was issued therein on July 28. As amended at
the hearing herein, it alleges that Bakery, Confectionery
and Tobacco Workers International Union, Local No.
213, AFL-CIO-CLC (herein called Respondent or the
Union) engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the National Labor Re-
lation Act, as amended (herein called the Act) in that, as-
sertedly: (1) its agents threatened an employee of the
Charging Party that he would be deprived of his pension
because of his failure to support Respondent's organiza-
tional activity; (2) other employees of the Charging
Party were advised of this by an agent of Respondent;
(3) its agents caused the pension to be revoked; and (4)
two of its agents told employees of the Charging Party
that they would not have to pay union initiation fees if
they submitted authorization cards to Respondent prior
to the Board-conducted election. 2 Respondent filed a
timely answer denying the allegations made in the com-
plaint.
All dates are 1980, unless otherwise stated.
' As originally drafted, the complaint alleged that only one individual
engaged in such conduct. In his opening statement, General Counsel al-
leged that Respondent's business agent, Ricky Simpson, also engaged in
such conduct. It was stated by General Counsel that this allegation was
based on evidence which he "discovered" or "became available to . .
[him] . . [on the] evening [of March 18, 1981, the day before the hear-
ing began]"
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By order entered July 30, Case 9-CB-4595 was con-
solidated and set for hearing with Case 9-RC-13315.
The latter involves objections filed on May 30 by Krispy
Kreme to alleged conduct which assertedly affected the
results of an election held on May 22 and 23 at its Louis-
ville, Kentucky, facilities. The alleged objectionable con-
duct is the same as that alleged in the above-described
complaint. 3
A hearing in these consolidated cases was held before
me in Louisville on March 19 and 20 and April 14, 1981.
At the conclusion of the hearing, the parties waived oral
argument and were given leave to file briefs, which have
been received. The issues raised by the pleadings and the
evidence are:
I. Whether two specified individuals acted as agents of
Respondent within the meaning of Section 2(13) of the
Act.
2. Whether both of these individuals threatened an em-
ployee with a loss of his pension because he failed and
refused to support Respondent's organizational activity.
3. Whether Respondent carried out this threat by caus-
ing the employee's pension to be revoked.
4. Whether one of these individuals and an admitted
agent of Respondent advised employees that they would
not have to pay initiation fees if they submitted authori-
zation cards prior to the election, and whether such con-
duct is a violation of Section 8(b)(1)(A) of the Act.
5. Whether the alleged conduct affected the results of
the election.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCI USIONS
I. JURISDICTION
Krispy Kreme, a Delaware corporation, maintains of-
fices and places of business in Louisville and is engaged
in the manufacture and sale of baked foods. During the
year before the issuance of the complaint, a representa-
tive period, it, in the conduct and course of its business
operations, derived gross revenues in excess of $500,000.
During the same period it sold and shipped from its Lou-
isville facilities, products, goods, and materials valued in
excess of $5,000 directly to points outside the State of
Kentucky. It is, therefore, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
I According to the Board's report on Objections to the Election, dated
July 30, it is stated:
The Employer's Objections alleged, in substance that: (I) The Peti-
tioner [Respondent herein] threatened an employee with termination
of his pension benefits because of his failure to support the Petition-
er's organizing campaign.
(2) The Petitioner informed various employees that it would termi-
nate the pension benefits of an employee because he had failed to
support the Petitioner's organizational activities.
(3) The Petitioner solicited authorization cards from employees by
promising to waive its initiation fee for those employees who sign
authorization cards pnor to the election.
II1. THE LABOR ORGANIZATION
It is admitted, and I find, that Bakery, Confectionery
and Tobacco Workers International Union, Local No.
213, AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. AI.LEGED UNIAIR L ABOR PRACTICES
A. The Pension
1. The facts
In February 1980, the Union began its organizing
drive at Krispy Kreme's two facilities in Louisville. 4 One
of Krispy Kreme's employees, Leslie Ladd, had previ-
ously worked for over 30 years at A & P Tea Company,
bakery division (A&P). While at A&P Ladd was a
member of Respondent Union. He obtained a retirement
card when A&P closed in 1977, and he began to work
for Krispy Kreme, which did not have a union. In Sep-
tember 1979 Ladd applied for a pension from the Bakery
and Confectionery Union and Industry Pension Fund
(Fund). He filed the application at the Local Union hall,
and was assisted by the secretary of the Union's business
agent. 5 While processing the application the secretary
was placed on notice that Ladd was working at Krispy
Kreme. 6
Ladd received his first pension check in March 1980,
along with a letter and some booklets. One contains a re-
tirement declaration, namely, that the retiree declares,
among other things, that if he is under age 65, as was
Ladd, he would "cease being employed or engaging in
. . [e]mployment with any employer in the same or re-
lated business as any employer who contributes to the
Pension Fund." (Resp. Exh. 4, p. 3.) The declaration
contains spaces for certifying the last date of employ-
ment in the industry, the date the declaration is signed,
the application number, and the name. Ladd read the
material, but at the hearing he claimed that he did not
understand anything in the booklet. The letter indicates
that the receipt of the pension was subject to, as here
pertinent, Ladd's signing and returning "[o]ne copy of
the enclosed Retirement Declaration." The letter went
on to state: "The other copy of the Retirement Declara-
tion very carefully." This portion of the letter, along
with other portions of the letter, is stamped in red ink
"This Section Does Not Apply."
When Ladd received his first pension check in March,
he and his wife brought it to the Local union hall to
show it to the secretary there who, as indicated above,
had helped him process his application. The Local had a
newly elected business agent, Simpson, who was also
present and became aware that Ladd received his pen-
sion and that he worked at Krispy Kreme.
One is located on Seventh Street Road and the other is located on
Bardstown Road.
5 Apparently an inquiry about the pension was initially received by the
Fund in 1977.
6 It is noted that in a telephone conversation with the Fund's secretary
in September 1979, the Local's secretary indicated that Ladd's last em-
ployer was A&P. Resp. Exh. 2.
774
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
Additional pension checks were received in April and
May 1980. During the aforementioned organizing drive
Ladd spoke out against the Union at company meetings
attended by Krispy Kreme employees. On April 16, he
returned a call to retiree Gerald Palmer, formally an In-
ternational representative for the Union and before that
business agent of the involved Local. Ladd knew
Palmer.7 Both testified as to what was said during this
telephone conversation which is the basis for one of the
involved charges. There is a conflict. Ladd testified that
Palmer began the substantive portion of the conversation
by stating: "You know that pension you're drawing;
you're not entitled to it . . . I hear you are working in
the industry." Later during the conversation allegedly
Palmer said: "Somebody might report you to the pension
fund. Ladd then assertedly said: "You mean if I help the
Union get in that I know I'm going to lose my pension;
if the Union stays out, you'll report it and I know I'm
going to lose it that way." To which Palmer allegedly
replied: ". . . we . . . need your help at Krispy Kreme,
and after all we've done for you at A&P we thought
maybe you might help us, I don't think anybody's going
to say anything about . . . [your pension] it'll just kind
of go away." Palmer testified that first he brought up the
organizing drive at Krispy Kreme and Ladd claimed ig-
norance indicating that he had not been requested to sign
an authorization card; that after he told Ladd he was
aware of what his attitude toward the Union was, Ladd
replied: "You don't expect me to vote against my pen-
sion do you?"; that prior to Ladd's statement he did not
know that Ladd was drawing a pension; that he then ad-
vised Ladd that he was not entitled to a pension since he
was working in the industry and he was not yet 65 years
old; and that Ladd later said: "Are you going to take my
pension away?" to which Palmer replied: "Les, I
couldn't if I wanted to. I don't want it."
Palmer's version of the conversation is credited.
Palmer impressed me as being a credible witness. Ladd,
regarding this conversation, did not. Ladd's version is in-
credible in that no reasonable person could have been ex-
pected to believe that Ladd's pension would go undis-
covered if the Union came in. 8 Respondent points out on
brief that if the plants were unionized and a pension plan
were negotiated, the Fund would have become aware of
Ladd's pension when Ladd began receiving additional
credits under such plan. There would be little likelihood
that Ladd's pension would go undetected in such cir-
cumstances. Moreover, Ladd's version is compromised
by the fact that on cross-examination he gave the follow-
ing testimony:
Q. So when Mr. Palmer called you about the
union situation you were thinking to yourself, were
you not, that the Union could cost you your pen-
sion?
'Although retired since 1976, Palmer visited the union hall about once
a week in 1980 and he discussed, among other things, the Krispy Kreme
organizing drive with Simpson, who advised him that a former union
member, Ladd, opposed the Union. Palmer volunteered to call Ladd to
attempt to influence him to support the Union.
s Ladd knew that if the Union came in to Krispy Kreme he would not
be eligible for the pension.
A. I didn't think about that exactly, no. I
wouldn't say so. All I wanted to do, I did not want
the Union in Krispy Kreme. That's what I was
thinking about.
Q. Part of the reason was that you'd lose your
pension?
A. No. I disagree with you.
Ladd's own above-described testimony on direct indi-
cates that he was concerned about the pension. Under-
standably it was something which was very meaningful
to him and his wife. As indicated above, upon receiving
his first check he and his wife made a special trip to the
union hall to thank the business agent's secretary for her
help in obtaining the pension. Also, his wife wanted to
be reassured by the secretary that "it's ours." Their con-
cern is understandable in view of the fact that the pen-
sion amounted to $6,000 a year.9
After speaking with Ladd, Palmer called Simpson later
that same day and advised him that Ladd claimed igno-
rance about the organizing drive; that Ladd stated that
he had not been approached to sign an authorization
card; that Ladd would not support the Union; and that
Ladd was drawing a pension although he was not enti-
tled to it. Simpson was under the impression that Ladd
could work in the industry as long as he was not work-
ing in a union shop. It is asserted by Simpson that he did
not discuss Ladd's pension with Palmer prior to Palmer's
call to Ladd. At the behest of Simpson, Foote, the fol-
lowing day, asked Ladd if he wanted to sign a union au-
thorization card. Ladd responded: "Not now, I'll think
about it."
On April 17, Simpson also contacted Frank Hurt, an
International representative of the Union, who had been
assisting the inexperienced Simpson with Krispy Kreme,
since this was Simpson's first organizing drive. Simpson
asked Hurt if a person could draw a pension if he was
working in the industry but in a nonunion shop. Hurt
thought that the pensioner could not even work in the
industry but he was not "100%" sure. He testified that
he unsuccessfully attempted to obtain the man's name
from Simpson but Simpson refused to give it saying: "It
will hurt our campaign [at Krispy Kreme]." Hurt called
Simpson back the following day. In the interim, he had
checked with one of his superiors, Earl Tetrick, execu-
tive vice president of the Union and a union trustee of
the Fund. Tetrick told Hurt the pension would have to
be suspended and he directed him to get the individual's
name. After reminding Simpson of the obligations of his
office, Hurt was told it was Ladd. Hurt later called Te-
trick in Washington, D.C., and gave him Ladd's name. 1 0
Previously Hurt and Tetrick had discussed the fact that a
former union member working at Krispy Kreme opposed
the Union. But allegedly Tetrick was not aware that that
same individual was drawing a pension from the Fund
9 It is noted that Robert Foote, a Krispy Kreme employee who was a
union activist, in his letter to Krispy Kreme's employees mentions an
annual salary of S7,200, apparently referring to production workers G.C.
Exh. 10. If this approximates Ladd's annual salary, the Ladds' concern is
even more understandable.
'O Hurt thought he called Tetrick around May I
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until after Hurt's second telephone conversation with
Simpson. On May 19, Tetrick called the assistant man-
ager of the Fund, Arthur Krenek, who in turn forwarded
a letter dated May 20 to Ladd advising, in part:
The Fund Office recently received information
that you are currently employed in a non-union
bakery. Please be advised that Article VIII, Section
8.06 of the Pension Plan prohibits a pensioner to
engage in any employment whatsoever in the
Bakery and Confectionary Industry while receiving
pension benefits from this Fund. The Fund Office
would appreciate receiving information from you
regarding your present employment status. t
Ladd responded by letter dated June 5 indicating that he
was currently employed at Krispy Kreme as a produc-
tion man.1 2 Ladd's June 1980 check was voided and his
pension was suspended.
Regarding the Fund, Krenek indicated that it is man-
aged by a body composed of a board of trustees made up
of eight employee trustees and eight union trustees who
formulate the pension rules and regulations which deter-
mine who can receive a pension; that all the local unions
do is negotiate collective-bargaining agreements, which
provide for the contributions; that a local union cannot
itself determine who is eligible for a pension but rather
this determination is made pursuant to the rules and reg-
ulations of the Fund; that a local union does not have the
authority to determine whether the pension should be
suspended; that he made the determination to suspend
Ladd's pension; that the rule in question is not discretion-
ary but rather mandatory; and that he was not aware
when he suspended the pension that there was an orga-
nizing drive at Krispy Kreme and that Ladd openly op-
posed the Union.
During the organizing drive, Ladd's pension was a
topic of discussion among Krispy Kreme's personnel.
Ladd worked at Krispy Kreme's Seventh Street Road fa-
cility. The manager at that facility, Art Drummon, ad-
vised Krispy Kreme's employees at a company meeting,
which apparently was held before the organizing drive
began and which apparently dealt with retirements, that
Ladd was working on his second pension inasmuch as he
was going to be drawing a pension from the Union. 13
On May 18 Ladd and Foote had a heated verbal ex-
change regarding some work which necessitated Foote
"G C. Exh. 4. The rule in question reads:
If a Pensioner engages in employment or self-employment in the
Bakery and Confectionary Industry in the United States or Canada,
his pension benefits shall be suspended for any calendar month in
which he is so employed and for up to 12 additional months after
ceasing such employment. After that period, his benefits shall again
become payable. [Resp. Exh. 1, p. 19.]
Also, regarding the retirement declaration, Krenek indicated that the
practice of requiring a pensioner to sign a declaration and send it back
was discontinued before Ladd received his first check and that is why
the old form letter which accompanied the check was stamped "This
Section Does Not Apply."
12 In the letter, Ladd also states his belief that Krispy Kreme is not in
the involved industry and he points out that when he applied for the pen-
sion, the representatives of the Union were told that he worked at Krispy
Kreme but they advised that it did not matter.
Ls It would seem that Krispy Kreme has its own pension plan.
coming off his break before his time was up. 4 Although
these two individuals had a good working relationship
when Foote first came to Krispy Kreme, it had deterio-
rated. According to both Ladd and Foote the sore point
in their relationship was the fact that Ladd attempted to
tell Foote what to do and Foote resented this. Shortly
after the above-described exchange, Foote told Ladd:
"Old man, you've got your last check."'5 Ladd testified
that the Union was not mentioned during the entire
course of this exchange. Ladd went on to state:
[Foote] might have mentioned it to somebody
else, what would happen if the Union was in there
or in the Union got in or something. [sic] But in my
presence the word Union was never mentioned. a
Foote testified that during this exchange he told Ladd,
"I tell you what old man, I'll see you won't draw a pen-
sion." He also indicated that the word union never came
up during this exchange. 1 7
After Palmer spoke with Ladd, Foote participated in a
discussion with Palmer and Simpson about the fact that
Ladd was not eligible for the pension. Foote admits that
14 More specifically, according to Ladd, Foote was "cutting" yeast
raised donuts and Ladd was "cutting" cake donuts. Foote turned to
Ladd, who at that time was lead production man, and advised him that
he should "get someone on the stacker." Foote than went to the break-
room. Ladd's cake machine was running so he went to the breakroom
and said: "Bob, would you take that stacker and take your break later?"
Foote told Ladd to have someone else do it. Ladd indicated that every-
one else was busy and "[i]f you don't want to do it, I'll go back and I'll
catch it myself But when I make out my report why I'm late starting the
Krispyettes . . . [t]he office is going to hear about it." Soon after Ladd
started working at the stacker Foote came out of the breakroom and said:
"I'll catch them and if you ever turn any bad report in on me I'll . .
knock you out." Foote's version of the exchange does not differ in any
material respect from Ladd's. According to Foote, when he advised
l.add that he was not going to interrupt his break and told Ladd that
"you're not my boss," Ladd replied: "I'll take you in the office and you'll
find out who your boss is."
is Foote also told Ladd that he had heard that Ladd was a rat for 20
years at A&P.
iS Ladd did have a conversation with Foote about Business Agent
Simpson and his predecessor, and he indicated that he may have dis-
cussed the Union with Foote and others in the mixing area at various un-
specified times. The conversation with Ladd about Simpson, according to
Foote, took place after the election because "[wle didn't talk nothing
about the Union before the election."
11 One other employee witness Gerald Lewis testified about this ex-
change:
I was there on a Tuesday and Ladd told Bob to catch a stacker
and he didn't want to catch a stacker. So Bob told Ladd that he was
going to take his pension away any way he could, through the
Union or through Simpson.
On cross-examination, Lewis first testified that he remembered specifical-
ly that Foote said: "through the Union or Simpson." Then he testified
that Ladd and Foote were arguing about the Union. Later he testified he
just assumed they were arguing about the Union because "All I heard
was Union and then later that day Ladd told me, you know, that they
were arguing about the Union and that was why he was mad that
day. When he gave the Board agent his affidavit in June 1980 Lewis indi-
cated that Foote was angry at Ladd about the stacker. Lewis' version
conflicts with the testimony of both Ladd and Foote that the Union was
never mentioned. Moreoever, Ladd testified that his exchange with Foote
was not heated in that "[tlhere was no argument there at all, that I could
say. If he was not angry during the exchange and the Union was not
even mentioned, it is difficult to understand why, as Lewis testifies, Ladd
would have been angry about the Union that day. Lewis' testimony
about the exchange cannot be credited.
776
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
he did tell other Krispy Kreme employees that the
Union was going to suspend Ladd's pension. s
Five of Krispy Kreme's employees testified about the
Ladd pension. Employee Tina Parris was present when
Foote, before the election, told "several people sitting in
the breakroom . . . that he felt that Ladd was drawing
his pension illegally and that it would soon cease." She
also testified on direct examination that she heard Foote
tell Ladd "that he was not going to be receiving his pen-
sion any longer." On cross-examination, however, she
testified that she never heard Foote say anything to
Ladd about his pension; that when Foote did mention
the pension to her or other employees he indicated that
it would be suspended because he believed Ladd was
drawing it illegally; and that Foote also "might have had
a personal grudge behind it, too [sic]." Another employ-
ee, Lewis, testified that Foote "said he was going to get
his [Ladd's] pension taken away . .. [because Ladd]
shouldn't draw it working for Krispy Kreme." Foote
never said anything to Lewis about what the Union's po-
sition was on the pension. Employee Teddy Logsdon tes-
tified that Foote told him that Ladd's pension "was get-
ting taken away . . . he's already taken steps ....
[Foote] said he [Ladd] wasn't suppose to be working at
Krispy Kreme's shop because he'd worked at A&P
Bakery and was drawing a pension." Foote told Logsdon
that Ladd "wasn't suppose to be working in a bakery
. . . and drawing a pension," and "the Union had al-
ready took steps to remove his pension [sic]."'9 Another
employee who testified on this subject, Mary Nelson,
stated that she never had any discussions with Simpson
about Ladd's pension; that she never heard Foote discuss
Ladd's pension; that she never had any discussions with
Ladd about his pension; that neither an official of the
Union nor an employee of Krispy Kreme ever told her
that the pension was being cut off because Ladd was
against the Union; that Drummond would mention the
pension when he walked through the plant, and Drum-
mond was the only one she heard say that the pension
was being cut off because Ladd was against the Union;
and that she overheard employees Darlene Napper and
Parris discuss the fact that Drummond had said some-
thing about the pension with Napper stating that "she
thought it was-the Union was dirty to do something
"I It was later discovered by Foote that the Union had no authority
itself to suspend the pension. In an affidavit given by Foote to a Board
agent (G.C. Exh. 13); Foote stated: "I deny telling Ladd or anyone else
that the Union was taking steps to end his pension. I never told him or
anyone else that I would do anything I could to cut off his pension."
(Emphasis supplied.) At the hearing Foote testified that while he said the
Union was going to take it away he never said the Union was taking steps
to take the pension away, and that he did not know what the Union was
doing about it. In the same affidavit Foote stated, "I can't remember
whether I said anything to him ILadd] about his pension." At the hearing
he admitted remembering that he said something to Ladd about his pen-
sion when the affidavit was given but he did not want to admit it at that
time.
19 Logsdon mistakenly believed that any conversation he had with
Foote about Ladd's pension took place in March. Apparently he had two
conversations with Foote on the subject. When Logsdon was advised
that the Union had taken steps to suspend the pension he was already
aware that Ladd would lose the pension because "he wasn't suppose to
be working at Krispy Kreme, because it was another bakery."
like that."2 0 Zoada Neff was asked by Assistant Manager
Napper, of Krispy Kreme's Seventh Street facility and
Darlene Napper's brother-in-law, a few days before the
election whether she heard anything about Ladd losing
his pension. This was the only time she could recall
Ladd's name coming up during the organizing drive.
2. Analysis
As here pertinent, for the reasons stated below it is my
opinion that paragraphs 5, 7(a) and (b), and 8 of the
amended complaint should be dismissed. 2'
The facts of record do not support the allegation that
Palmer "threatened . . . [Ladd] that he would be de-
prived of his pension because of his failure to support
Respondent's organization activity." As indicated above,
Palmer's version of this conversation is credited vis-a-vis
Ladd's version. The former's version contains no threat,
explicit or implied. Accordingly, paragraph 5 of the
amended complaint is dismissed.
Amended paragraph 7(a) alleges that during May 1980,
Foote "told [Krispy Kreme's] employees that Respond-
ent would deprive an employee of his pension because of
his failure to support Respondent's organizational activi-
ty." Again the facts of record do not support the allega-
tion. Foote did tell the other employees that Respondent
would deprive Ladd of his pension but in no instance did
Foote explicitly state or imply that this would be a con-
sequence of Ladd's opposition to the Union. Rather, in
each and every instance of record where the reason was
stated by Foote to the other employees it was because
Ladd was drawing the pension illegally or Ladd should
not have a pension and at the same time be working for
Krispy Kreme, which is a bakery. None of the employee
witnesses testified that it was their understanding that the
pension was suspended because of Ladd's antiunion
stance. If there was any reason other than the fact that
the rules and regulations of the Fund specifically prohib-
ited what Ladd was doing, one is left with pure specula-
tion or conjecture. In any event, the record does not
support the allegation made in amended paragraph 7(a)
of the complaint, and, accordingly, it is dismissed.
While it is alleged in amended paragraph 7(b) of the
complaint that Foote on or about May 18 told Ladd that
Ladd would be deprived of his pension because of his
failure to support Respondent's organizational activity,
the facts of record do not support this assertion. Ladd
himself testified that the Union was not mentioned in his
heated exchange with Foote. What was said during this
personal dispute had nothing whatsoever to do with
whether Ladd opposed or supported the Union's orga-
nizing drive. Foote was angry because his break was in-
terrupted and he did not like Ladd threatening him and
telling him what to do. In an outburst he verbally struck
at Ladd's Achilles' heel.
General Counsel contends on brief that the argument
that Foote hated Ladd for reasons other than Ladd's
protected activity in opposing the organizing campaign is
20 Also, Scott Livengood, director of human resources of Krispy
Kreme, mentioned the pension to Nelson on two occasions.
21 As onginally issued these paragraphs were numbered 5, 6(a) and (b),
and 7, respectively.
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fallacious and takes a myopic view of the factual circum-
stances. Assertedly, "employee allegations that an em-
ployee is a 'rat,' a 'company suck,' or a 'tattletale' are
fairly constant concommitants [sic] of normal organiza-
tional activity, and Foote made the same time-honored
accusations to Ladd on May 18." Also it is argued by
General Counsel that "Foote's primary dislike for
Ladd-his perceived tendency to 'rat' on employees-is
part of the res gestae of any organizing campaign." It is
General Counsel's position that to hold Foote's threat to
Ladd to be noncoercive because it did not refer specifi-
cally to Ladd's conspicuous antiunion posture would be
to exalt form over substance. Respondent, on the other
hand, points out on brief that Ladd had no reason to be-
lieve that Foote was in a position which would enable
him to affect any cutoff of the pension. 22
While, as pointed out by General Counsel, the Board
held in Professional Research, Inc., d/b/a Westside Hospi-
tal, 218 NLRB 96 (1975), that a union organizer's threat
to an Hispanic employee that if he did not support the
union he would be reported to the Immigration and Nat-
uralization Service violated Section 8(b)(1)(A) of the
Act, this is not the situation here. For if Ladd supported
the Union and if the plants became unionized, Ladd
would, even under his own understanding of the pension
rules, be drawing a pension in violation of the Fund's
rules. In Westside Hospital, supra, the threat of possible
deportation was used as leverage in an attempt to get the
employee to support the Union. Here there was no lever-
age. To accept the position of General Counsel and
Krispy Kreme would be to believe that the Union threat-
ening Ladd with the loss of something that he would
lose if he did what the Union wanted. Even in Ladd's
uncredited version of his conversation with Palmer, the
latter is supposed to have said "I don't think anybody's
going to say anything about . .. [your pension], it'll just
kind of go away." (Emphasis supplied.) Supposedly this
indefinite assurance was going to convince Ladd to run
the risk of losing $6,000 a year. Absent a change in the
Fund's rules, Ladd's support of the Union would have
worked to his detriment. No assurance to the contrary
would have convinced a reasonable man to support the
Union. One would have to refuse to accept the realities
of the situation to believe that the Union was attempting
to use the pension as leverage. Foote did not tell Ladd
that he would lose his pension because of his failure to
support Respondent's organizational activity. And Ladd
did not lose his pension because he failed to support the
Union. Practically speaking Ladd really had no choice;
he could not support the Union. Neither participant in
the involved exchange viewed it as anything other than a
personal matter which did not involve the Union. Nei-
ther indicated that the exchange had anything to do with
whether or not Ladd supported the Union. Ladd was
about to lose his pension because he was drawing it in
violation of the rules of the Fund. Foote was aware of
this and he used this knowledge to get back at Ladd for
threatening him and thereby intimidating him to inter-
22 On direct examination Ladd testified that he figured Foote was for
the Union. But on cross-examination Ladd testified, "I didn't know if
. . .[Foote] was for the Union, you know working for the Union [or]
working against the Union .... "
rupt his break. As indicated above, Ladd advised Foote
that if he did not come off break the office was going to
hear about it. Foote reacted to this and nothing else. Ob-
viously Foote perceived this as a threat to "rat" on him.
That is why he called Ladd a "rat" and told him that he
was a rat at A&P. It was not, as asserted by General
Counsel, a "concommitant [sic] . . . of normal organiza-
tion activity" or "part of the res gestae of any organizing
campaign." It was simply Foote's reaction to Ladd's
threat that he was going to tell management. In the cir-
cumstances, amended paragraph 7(b) of the complaint is
dismissed.
Paragraphs 8(a) and (b) of the amended complaint
allege that Respondent, acting through Simpson and
Hurt, attempting to cause, and thereafter caused, the
Fund to revoke Ladd's pension because he failed and re-
fused to support Respondent's organizational activity;
and that they thereby engaged in an unlawful labor prac-
tice within the meaning of Section 8(b)(1)(A) of the Act.
General Counsel argues that Respondent "procured" the
termination of Ladd's pension; that it did so in retaliation
of Ladd's antiunion stand; and that but for Ladd's pro-
tected opposition to Respondent's organization activity,
Ladd would be drawing his pension benefits today. As-
sertedly, the Fund "was indeed privy to an awareness of
Ladd's opposition to Respondent" and "[t]hat Ladd was
not in fact technically entitled to the pension under the
Fund's rules is of no consequence under the circum-
stances."
Respondent, on brief, points out that the local union
could not have violated the Act by suspending Ladd's
pension simply because it did not effect the suspension.
The local has no authority to suspend and assertedly had
nothing to do with the decision to suspend. The assistant
manager of the Fund, Krenek, effected the suspension
and it is correctly pointed out that he did so with no
knowledge of any organizing drive at Krispy Kreme or
of Ladd's stand on any organizing drive.2 3 Respondent
indicates that the section of the plan applicable to the
suspension of Ladd's pension states that a pension shall
be suspended in a situation such as Ladd's; and that
Krenek testified that this section has been deemed man-
datory, rather than discretionary. Citing Los Angeles
County District Council of Carpenters. United Brotherhood
of Carpenters and Joiners of America, AFL-CIO; Electron-
ic and Space Technicians Local 1553, AFL-CIO (Hughes
Helicopters, Division of Summer Corporation), 224 NLRB
350 (1976), Respondent submits that the Board has held
that conduct which is lawful is not rendered unlawful
only because it occurs in the context of protected activi-
ty. In that case the Board affirmed the conclusions of the
Administrative Law Judge that it was not a per se viola-
tion of the Act for a union to expel a member based on
misconduct which comes to the union's attention when
the member gives testimony as a government witness in
a Board unfair labor practice proceeding. The Adminis-
trative Law Judge therein noted that he could find no
support for General Counsel's novel proposition, which
holds in effect that:
2S The unrefuted testimony of Krenek is credited.
778
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
if. . . a union discover[s] for the first time during a
Board hearing through the testimony of an employ-
ee that this employee is guilty of serious misconduct
(i.e., stealing or destroying property) which ordinar-
ily would result in discipline, the employer or union
is nevertheless precluded from disciplining the em-
ployee. [Id. at 355.]
He went on to state:
The Act in my view does not call for such an
absurd result. The question in my view is whether
the witness during the normal course of business
would not have been disciplined for engaging in the
confessed misconduct, if the witness had not testi-
fied for the Government in the Board proceeding.
[Id. at 355.]
Here there is no question but that Ladd was drawing the
pension in violation of the Fund's rules. Obviously there
would be no violation of the Act if Simpson and Hurt
reported Ladd before the organizing drive started. So
too, it apparently would not be a violation in General
Counsel's eyes if Ladd supported the Union. What alleg-
edly makes it unlawful is that Ladd opposed the Union.
In effect General Counsel argues that because Ladd
openly opposed the Union, Simpson and Hurt were pre-
cluded from reporting this violation to the Fund because
in doing so they were retaliating against Ladd for his op-
position to the Union. It is the position of General Coun-
sel that but for Ladd's protected opposition to Respond-
ent's organizational activity, Ladd would be drawing his
pension today. General Counsel may be right to an
extent. If Ladd had not opposed the Union, Palmer
would not have had reason to call him and, in turn,
Simpson would not have been placed on notice by
Palmer as a result of that phone call that there was a
question as to whether Ladd could draw the pension
while under age 65 and working in the industry. If Hurt
had not discovered the pension, most likely nothing
would have been said during the organizing drive since
Simpson, a neophyte regarding pension matters, formerly
believe Ladd could work in the industry as long as he
was not working in a union shop. But were Simpson and
Hurt unlawfully motivated to the extent they participat-
ed in the suspension of the pension? It would appear that
neither individual had a real choice in the matter. Once
the pension question was set in motion both were placed
in a position of providing the information which resulted
in the suspension or themselves suffering the conse-
quences of refusing to provide it; both had obligations.
Not relying on what Palmer told him, Simpson inquired
of Hurt whether someone under age 65 could work in
the industry while drawing the pension and Hurt, in
turn, asked his superior the same question. Hurt's superi-
or, Tetrick, is a trustee of the Fund and as such obvious-
ly has certain obligations and duties. Tetrick told Hurt to
obtain the pensioner's name and Hurt, in turn, told Simp-
son he was obligated to provide it. Simpson did. And
when he did it really did not matter to Simpson, from a
practical standpoint, whether Ladd supported or op-
posed the Union. The suspension of the pension would
not make the Union look good to the employees at
Krispy Kreme, the employees he was attempting to orga-
nize. 24 The Act would not require, in a situation such as
the one on hand, that Simpson and Hurt refuse to pro-
vide the information and suffer the consequences. Under
the circumstances, Simpson and Hurt were not unlawful-
ly motivated when they provided the information which
led to suspension of Ladd's pension. According, para-
graph 8 of the amended complaint is dismissed.
B. The Waiver of Initiation Fees
1. The facts
Foote distributed most of the authorization cards to
Krispy Kreme employees. 25 A number of the employees
testified regarding what Foote did or did not say when
he handed out the cards. Parris, who works in the office
at the Seventh Street facility as a bookkeeper and also in
production, 2 6 testified on direct that when Foote gave
her and Darlene Napper 27 cards he said: "Most of the
employees had already signed cards, and that if we-we
should go ahead and sign a card also to avoid paying a
fee"; and that Foote did not say how much the fee
would be and she signed the card. On cross-examination
Parris testified that she signed the card because she did
not want to have to pay an initiation fee; that Foote ac-
tually said "initiation fee" not "fee"; that she regretted
signing the card; and that regarding whether anyone
with Krispy Kreme ever talked to her about initiation
fees, she remembered "[t]here were men that came from
the company that talked but . . [she could not] remem-
ber even what the conversations were about."
Patricia Akemon, who also works at Krispy Kreme's
Seventh Street facility, was asked by Foote to sign an
authorization card--"[Foote] just asked me if I would
sign that card and give it back to him as soon as possible
and that's all that was said."
24 The timing of Tetnck's notice to Krenek concerns me. According
to Hurt, Tetrick was given Ladd's name around May I. Yet apparently
he waited until May 19 to notify Krenek. This would mean that Ladd
would not receive Krenek's letter until after the election. Was Tetrick's
delay intentional? If so was it done to avoid making this an issue dunng
the organizing drve? Actually, ILadd's pension was already an issue, not-
withstanding any action on the Fund's part. Foote, Drummond, Liven-
good, and Assistant Manager Napper, discussed the pension with Krispy
Kreme's employees It was a foregone conclusion that it was going to be
suspended. But the actual suspension, as believed by Simpson. could have
adversely affected the organizing drive Nonetheless, even if this was
reason for the delay, and even if Simpson was privy to or in some way
responsible for the delay. it would not, in my opinion, justify the conclu-
sion that Simpson was unlawfully motivated when he provided Ladd's
name
25 Simpson did not solicit signatures on the authorization cards As
pointed out by General Counsel on brief, the Board has held that state-
ments about the effects of authorization cards, made by an individual
who is entrusted with the responsibility of distributing them. may he
properly attributed to a principal. Laclede Cab Company, d/b/a Dollar
Rent-A-Car, 236 NLRB 206, 210, fn. I1 (1978)
26 She was hired to become a full-time bookkeeper when the book-
keeper at Seventh Street retired During the first 6 months of 1980, she
worked strictly in production.
27 Unlike Parns. Napper no longer works at Knspy Kreme. She did
not testify at the hearing herein. According to Parris, she was advised by
Nelson that Foote was trying to get the employees together to organize a
union, "'[and so we [Parns and Napperl went back there after she told us
that and he I[F(xte] said it was true what we heard"
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dorothy Vermillion, who works at the Bardstown
Road facility, testified on direct examination that Foote
and Simpson came to the Bardstown Road facility in the
spring of 1980 and asked her if she signed an authoriza-
tion card to which she replied: "No"; that another time
Foote came to the Bardstown Road facility with another
man; that they introduced themselves but she "didn't pay
any attention . . . to their names"; that the other man
said he was from the Baker's Union; that they said they
had noticed that she had not signed an authorization
card and she replied: "No"; and that nothing else was
said at that time. Vermillion further testified that later
Foote came to her home with another man; that the
other man told her his name but she could not remember
it; that the other man had a suit on and Foote was wear-
ing his white Krispy Kreme uniform; that Foote did the
talking and the other man did not participate in the con-
versation "[h]e just stood there";28 that Foote said he
noticed that she had not sign a card and she replied:
"No";2 9 and Foote, before driving off with the other
man in a small dark red car, (1) asked her if she had a
car; (2) called her a "damn foreigner"; (3) told her that
the initiation fee would be $10 if she signed before the
Union got in and if she did not, it would be $100; (4)
told her that if she did not sign the card before the elec-
tion that she could not vote; and (5) told her that if the
Union got in, it would be a closed shop. On cross-exami-
nation, this witness testified that the man who came with
Foote to her home was the same union representative
(not Simpson) who came with Foote to Bardstown
Road; that this other man did not give her his name at
the shop; that when this other man came to her house he
"had on a dark red shirt and that's all I can remember
about it"; that the other man who was with Foote at her
home did not make any statements at all-not one
word-"[h]e was very embarrassed but he didn't say
anything"; and that when she gave her affidavit to a
Board agent she did indicate that the other man stated:
"Well she's entitled to her own opinions," and that the
other man did in fact say this. At one point on redirect
examination Vermillion testified, "It's been so long ago
and my memory is not that good." Vermillion never
signed an authorization card.3 0
Logsdon, a production man at the Seventh Street fa-
cility, testified that he was asked by Foote in mid-March
1980 to sign an authorization card. Foote did not hand
2s Two other times on direct examination the witness testified that the
other man did not say anything.
"2 At this point in the testimony the following exchange took place
between General Counsel and the witness:
Q. Anything else? Did he say anything else about the cards?
A. Huh?
Q. Did he say anything about the Union card?
A. Yes.
Q. What did he say, can you remember?
A. No. My mind is a complete ....
As indicated infra, the witness subsequently testified about what was said.
s0 This witness testified that at one point in the conversation at her
home "they said if they didn't get $7 or S8 an hour they would go out on
strike, and I told them I could not go out on strike because I could not
afford it, that I wouldn't walk the picket line. I told them I'd go and get
me another job."
Logsdon a card3 ' but when Logsdon said he did not
want any part of a union Foote allegedly stated: "Well,
it would be a hundred and fifty dollars initiation fee if
you don't sign a card," and "if you sign a card, all you
have is dues." Also, Foote is alleged to have indicated
that it would be a closed shop and Logsdon would have
to pay the initiation fee. Later that month when he was
delivering donuts to the Bardstown Road shop Logsdon
was approached by Foote. Logsdon again told Foote he
did not want any part of the Union. 32 According to
Logsdon, Foote said that the Company would "continue
. . . [to be] mean to you." On cross-examination Logs-
don initially denied that Foote, when he first attempted
to get Logsdon to sign an authorization card, said that
there were already enough cards signed to get an elec-
tion. After he was shown the affidavit he gave to a
Board agent he eventually conceded that Foote did in
fact make this statement. But, as pointed out on redirect
examination, Logsdon did not, as indicated in his affida-
vit, believe that Foote had enough cards at that time to
get an election. Logsdon never signed an authorization
card.
Lewis, who also works at the Seventh Street facility,
testified that Foote gave him an authorization card in
March and told him that if he signed the card before the
election it would not cost him anything, but if he waited
until after the election it would cost him $125. Accord-
ing to Lewis, Foote told him about the initiation fee four
or five times during a I-week period in March, and
Lewis testified that he overheard Foote making the same
statement to three of four women in the breakroom the
same week he received his card. He could not remember
the names of any of the women. While he allegedly
heard Foote tell the women the amount of the fee, he
could not recall what it was. But he did recall discussing
with Logsdon the fact that there was a $25 difference in
the amounts allegedly quoted to them.3 3 Also, shortly
after the election Nelson, according to Lewis, stated:
"Ha! We won the election. Now you're going to have to
pay the $125." Allegedly Lewis said nothing in re-
sponse.3 4 On cross-examination when Lewis was asked
what he said when Foote gave him the card Lewis re-
plied: "Well, we talked a little bit, you know. It's been a
year. I can't hardly remember what was said." He did
remember he told Foote that he would mail the card
himself, in response to Foote's offer to mail it. And as far
as Lewis could remember on cross-examination that was
the extent of the conversation. Regarding the second
conversation with Foote that week, Lewis testified that
he could not remember the content of the conversation.
But Lewis testified that during the conversation Foote
told him that if he signed a card he would "get in free,
31 Logsdon thought Foote had a card cupped in his hand but he did
not see it. However, Logsdon then testified that Foote offered to hand
him a card later at the Bardstown facility.
32 At this point in his testimony Logsdon stated that he would not say
and he did not know if Foote had a union card. Logsdon did not see a
union card.
aa Logsdon corroborated his conversation with Lewis regarding the
alleged difference in the amount of the initiation fees.
s4 According to Lewis, Nelson told him about the initiation fee a
couple of times before the election.
780
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
before the election. But if. . . [he] waited until after the
election it would cost . . . [him] a hundred and twenty-
five dollars." Lewis never signed an authorization card.
Neff, who works on the second shift at Krispy
Kreme's Seventh Street facility received 18 authorization
cards from Krispy Kreme employee Vickie Murdock,
who merely told her to hand them out. Neff said nothing
about initiation fees when she passed out the cards.
Mary Lees testified that she received her authorization
card from Foote who said nothing about union initiation
fees. Nelson, who received her authorization card from
Foote, testified that Foote did not mention the initiation
fee when he gave her the card.
Brenda Meyer testified that she received her authoriza-
tion card from Foote who said nothing about union initi-
ation fees when he gave it to her. Foote did tell her that
he needed a certain percentage of signed cards.
Other employees also testified about what Foote is al-
leged to have said about initiation fees before the elec-
tion. Laura Price testified that Foote asked her to sign a
card but apparently did not say anything about initiation
fees at that time. Also she initially testified that Foote
and Nelson told employees in the breakroom that if "you
don't sign a union card, then if the union came in, you'd
have to pay an initiation fee in order to get into the
union." 35 On cross-examination, however, she testified
that she could not say for sure what Foote said in the
breakdown about an initiation fee; that she really did not
recall what Foote and Nelson said.
Sada Moore testified that Foote asked her if she had
received a card. He did not discuss initiation fees.3 6
Also, this witness indicated that there was general confu-
sion among employees as to whether they would have to
pay an initiation fee. Meyer and Lees also testified about
this confusion with the former indicating that just after
the cards were signed people in the breakroom teased
one another that if they did not vote for the Union they
would have to pay an initiation fee,3 7 and the latter indi-
cating that there was a lot of talk about initiation fees
amongst the employees. Neff indicated that employees
discussed the initiation fees and some people were con-
fused. Nelson testified that Drummond walked through
the plant saying: "The damned . . . Union is going to
make you pay initiation fees"; that "Drummond kept tell-
ing them different things. They'd have to pay initiation
fees; that fees like $125 and $150"; and that she heard
employees discussing the fact that they thought they
would have to pay an initiation fee if they did not sign
1s It was brought out on cross-examination that this witness made her
views against the Union pretty clear from the outset. On one occasion
she spoke against the Union at a company meeting. This witness was con-
fused about the timing of her return to work from surgery. She testified
that she had surgery on March 25 and was off for 9 weeks, returning in
June, yet she also testified that she voted in the May 22-23 election and
that the above-described statements of Foote and Nelson could have
taken place after she returned to work.
36 This witness, who testified on rebuttal, also indicated that Foote
asked her to forge employees' signatures to authorization cards. Although
Foote testified on cross-examination durng Respondent's case that he did
not recall the exact content of this conversation, on surrebuttal, he denied
that he made this request.
37 The witness did not think Foote took part in these discussions but
she was not sure. Also, she indicated that people teasingly asked one an-
other whether they had paid their dues yet.
an authorization card before the election. Just after the
election, Nelson had a conversation with Lewis in which
she allegedly said: "Well, you want to pay your $115 1
guess . . . [y]ou knew better than that, didn't you?" Ac-
cording to Nelson, Lewis replied that he knew better
than that; that he voted for the Union; and that he was
for the Union but he was "scared of his job."
During the campaign two meetings were held at a res-
taurant, Sandy's, which is located near the Seventh
Street facility. The first meeting was attended by Simp-
son, his secretary, Nelson, Foote, and five other Krispy
Kreme employees who worked on the first shift. 3 8 Ver-
sions of what was said at the first meeting differ. That is
not the case, however, with the second meeting, which
was attended by Simpson, his secretary, Nelson, Foote,
and about seven of Krispy Kreme's second-shift employ-
ees. The latter meeting occurred less than a week before
the election. On page 3 of his affidavit (G.C. Exh. 3)
Simpson states: "At the second shift meeting at Sandy's I
told those present that nobody would pay any dues or
any initiation fees until we got a contract." Arriving
after the second meeting began, Neff heard Simpson say
that: "The ones [employees] that was [sic] there, if the
Union got voted in wouldn't have to pay an initiation fee
but if there was some hired later on, if the Union got in,
they would have to pay." No authorization cards were
passed out at the second meeting and Neff could not re-
member any discussion of cards at that meeting. The first
meeting apparently was held some time in April. 39 It
was described by seven witnesses and, as indicated
above, some of the accounts vary. Simpson conducted
the meeting. One of the employees in attendance, Parris,
asked Simpson if the plant became unionized and Krispy
Kreme no longer needed her in the office would she be
able to work in production. Parris, who did not give an
affidavit to the Board, testified that Simpson responded
that as long as she had "sign[ed] a card . . . [she] would
be allowed to work, and that . . . [she] would not have
to pay an initiation fee . .. [a]nd that went for everyone
else too." 40 According to Parris, Foote said that em-
Js The other employees were Parris, Meyers, Napper, Lees, and
Akemon.
aa Accounts of when the meeting was held vaned from the last of
March (Parris) to about May 12 (Nelson). Parris further testified that it
occurred about 3 weeks after she signed her authorization card, which is
dated March II.
4' On direct examination Parris testified that Simpson said, "and that
went for everyone else too that signed a card." She also testified that
when Simpson mentioned that there would be an initiation fee he indicat-
ed that it would be $125 but that it could be less and that the Union
would decide how much each person would have to pay. Akemon also
testified that Simpson said "The people at the meeting had already signed
cards so . . . they wouldn't have to pay an initiation fee, but the ones
that hadn't they would have to pay an initiation fee. It was a hundred
and something." On cross-examination she, like Parns, could not remem-
ber exactly what Simpson said about insurance-"He just said the bene-
fits would be better. Our hospitalization and stuff would be better, a lot
better than we have." Akemon testified that she had not discussed her
testimony with Parns or anyone else and assertedly no one asked her
about her recollection of the meeting prior to her testifying at the hearing
herein. Additionally. Akemon testified that Foote also stated during the
meeting that "the people that hadn't signed a card would have to pay an
initiation fee." On direct examination Akemon testified that she had a
coke during the meeting and initially on recross-examination she testified
Continued
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees present "should get on those who had not signed
cards." At one point during the meeting Simpson is al-
leged by Parris to have answered a question indicating
that if a certain percentage of people signed cards then
the vote would not be necessary.4 ' Simpson testified that
a number of things were discussed during the meeting,
including insurance and benefits. But he told the employ-
ees that he could not promise anything. 42 During the
meeting Parris asked him whether she could split her
workweek between office work and production work.
He allegedly replied that he did not know and he would
have to check it out. 4 3 Parris also asked whether she
would have to pay an initiation fee if she worked full-
time in the office and wanted to come back to produc-
tion later on. Simpson testified that he advised her that
"After we got this union thing settled, after the election
and everything we'd-that she would have to pay the
initiation fee, after we were able to negotiate a con-
tract-with Krispy Kreme." Simpson thought one of the
emloyees asked if there would be an initiation fee and he
thought he discussed the Union's policy 4 4 but he was
not sure.4 5 Regarding authorization cards, Simpson testi-
fied that there was no discussion about them, "[t]hey
that Simpson paid for all the drinks. When then asked by counsel for Re-
spondent whether she recalled Simpson saying that he could not pay for
the drinks because he did not want Krispy Kreme to think it was a bribe,
Akemon replied that she did remember the statement and the employees
paid for their own drinks. Akemon testified that, as indicated above, she
did not discuss her testimony with anyone; that prior to testifying she
had no occasion to reconstruct what occurred at this meeting which witas
held almost a year before the hearing herein; that she was called by Gen-
eral Counsel the morning she testified (the second day of the hearing
herein) and advised that she had to testify; that she had never spoken to
General Counsel before that; and that while General Counsel personally
transported her to the hearing they did not discuss her recollection of the
meeting. It would appear that Akemon did not give an affidavit to the
Board. She indicated that at the time of the union meeting she was foir
the Union.
41 Parris believed that Napper asked why employees should "have to
sign cards anyway." Akemon testified that if Simpson said anlything
about a percentage of cards he needed for any reason she did not remem-
ber such a statement.
42 Meyer, who mistakenly indicated in her affidavit that she attended
the two union meetings, corroborated the fact that Simpson made no
promises. Foote also testified that when he was discussing benefits Simp-
son said he could not guarantee the employees anything, and they would
have to bargain for it
43 Nelson corroborated this.
44 The Union's policy, as stated by Simpson, is that it does not "charge
anybody initiation fee period for a newly organized shop." Hurt had ad-
vised Simpson at the beginning of the organizing drive that the Union
always waived the initiation fee for all employees that worked for the
Company prior to negotiating the contract. Otherwise, Hurt explained,
the Union would lose the election.
4' Foote testified that Simpson said all initiation fees are waived.
Nelson testified that Simpson said, "There was no initiation fees for us to
pay. That for the people that already worked there-was already work-
ing with Krispy Kreme, but anybody that come [sic] in after that, after
the Union got in and everything, that, then, they would have to pay an
initiation fee." Nelson believed that people hired after the election would
have to pay. She indicated that Simpson did not say anything about
"after the Union had a contract." Meyer testified that Simpson said: "if
you are working at Krispy Kreme at the time that the Union was voted
in, you would not have to pay an initiation fee. But, if you were hired in
afterwards, you would"; and that Foote had told her before the meeting
in response to her question, that "Whoever had been hired in after it had
already went through, they would have to pay." One other witness,
Lees, testified about her understanding of the Union's policy regarding
initiation fees but she was not sure that Simpson imparted this informa-
tion at the involved meeting.
were already turned in, and we'd already petitioned for an
election, I'm pretty sure." (Emphasis supplied.)4 6 Also,
he indicated that he did not say anything about any
means by which the Union might get in without an elec-
tion, 4 7 and he never sent a letter to Krispy Kreme de-
manding recognition.
On rebuttal, after Nelson indicated on cross-examina-
tion, during Respondent's case, that she did not tell Li-
vengood that Simpson said at a meeting that employees
would have to pay an initiation fee if they did not sign a
card, Livengood was called by company counsel and tes-
tified that he was at the Seventh Street plant about a
week after the election. 4 8 He was talking with Nelson
and he allegedly said that the thing that disturbed him
was that some of the employees who he had heard had
not signed cards would have to pay an initiation fee. 4 9
Allegedly Nelson said that:
[T]he employees did have an opportunity to sign a
card. That it was brought up at a union meeting and
presented to them by the-a union representative at
that meeting . . . prior to the election. That in
order for them not to have to pay an initiation fee,
that they would have to sign a union card. A union
authorization card.
This witness also testified on direct examination that
the Company had at least two meetings with employees;
that he conducted one of the meetings and that Drum-
mond conducted the other;50 that initiation fees were
discussed at these meetings, they were "discussed in gen-
eral, but not in any specifics"; and that the Company in-
dicated "[t]hat there was a possibility that there is a
clause in union constitutions to allow for initiation fees to
be charged."
On cross-examination, Livengood indicated he did not
attend the company meetings with employees conducted
by Drummond but he reviewed the "transcript" with
counsel Dernard's office for legal sufficiency. The meet-
ings were not recorded electronically but Livengood re-
viewed a written draft, a "guide that Mr. Drummond
followed at the meeting." 5 '
Regarding the alleged Nelson statement, Livengood, in
response to the question "[w]ere you aware that-those
statements, if they had been made, would be grounds for
4' Although the petition for certification of representative filed by the
Union is dated March 26, it was stipulated that the petition was filed
March 28, 1980 Authorization cards were not passed out at this meeting.
All of the employees there had in fact already signed a card. Foote testi-
fied that he did not know whether the cards were submitted to the
Union, but he was sure they were all passed out at that time.
4 Foote, Nelson, and Akemon corroborated this.
4' As noted above, the election was held on May 22 and 23.
49 According to Livengood, Drummond told him that Lewis had said
this to Drummond.
50 Apparently if they were, as Livengood indicates, more than two
company meetings with the employees someone other than Livengood
represented the Company at the meetings.
5' As indicated infra, one of the employees who attended one of the
company meetings, Foote, alleges that "Drummond read from a piece of
paper that there would be an initiation fee of $75." (G.C. Exh. 13, p. 3;
Foote's affidavit to the Board dated June 26.) Possibly Drummond may
have strayed from the guide provided him. Drummond did not testify.
Foote's assertion, therefore, is credited.
782
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAI. 213
overturning the election? testified: "Yes . . . [a]ll I did
know was the grounds for overturning the election, I
knew that that was illegal." Yet Livengood never asked
Nelson to sign a statement concerning this matter, and he
did not give any affidavit to the Board with respect to
this conversation. In response to further questions, Li-
vengood testified that Nelson did not name the union
representative; and that she did not indicate where the
meeting took place or when the meeting took place.5 2 On
redirect examination, Livengood testified that he told the
Company counsel Pearson about the alleged Nelson con-
versation.
In his effort to have the alleged Nelson statement ad-
mitted counsel for the Company argued that it was an
admission against interest by an agent of the involved
Union. The agent was never identified and no allegation
has been made herein that Nelson was acting as an agent
of the Union. Livengood's testimony, however, is not
only hearsay it is also not believable; it is incredible. To
credit it one would have to believe that notwithstanding
the fact that (1) Livengood was aware of the legal sig-
nificance of Nelson's alleged statement; (2) Livengood
told company counsel Pearson about Nelson's alleged
statement; and (3) Pearson along with counsel for Gener-
al Counsel Kopenhefer took affidavits from a number of
the people involved,5 3 this was for some valid unex-
plained reason not discovered and made a part of this
case until 9 months later when at the first day of the
hearing herein counsel for General Counsel Kopenhefer
announced that he wished to amend the complaint to in-
clude an allegation that Simpson, the only one who dis-
cussed initiation fees at Sandy's, 54 told employees of the
Charging Party that they would not have to pay union
initiation fees if they submitted authorization cards to
Respondent prior to the election, and this allegation was
based on evidence which he "discovered" or "became
available to . . . [him] . .. [on the] evening [of March
18, 1981, the day before the hearing began]." 55 Liven-
good's testimony regarding Nelson's alleged statement
can not be credited. And his testimony regarding the
Company's statements to employees about initiation fees
cannot be credited. Livengood was not a credible wit-
ness.
s2 As indicated above, on direct examination Livengood had testified
that Nelson said the meeting took place "before the election."
5s It is assumed that it was Pearson from Meyer's and Kopenhefer's
description of the individual. In any event the individual who took
Meyer's affidavit was described as "the Company lawyer." This was not
denied. As indicated by Meyer's testimony the affidavit dealt with the
Union's meeting at Sandy's. Simpson, on page one of his affidavit taken
by Kopenhefer on June 26 (G.C. Exh. 3) stated: "I held . union meet-
ings with about 7 8 person present [at] each. They were both at Sandy's
around the first of April." On the last page of the same affidavit, as indi-
cated above, Simpson states: "At the second shift meeting [which, as indi-
cated above, was the second meeting] at Sandy's I told those present that
nobody would pay any dues or initiation fees until we got a contract"
54 Akemon's assertion that Foote also spoke about initiation fees at the
first meeting at Sandy's is not corroborated even by the other witness
called by General Counsel. Moreover, it would be highly unlikely that
even, assuming arguendo, Livengood's testimony was truthful, Nelson
would have described Foote as a union representative.
sa It is noted that Livengood himself signed the charge in Case 9-CB-
4595 on June 2 which was about the same time that he indicated that he
had his above-described conversation with Nelson G C Exh l(a).
Inasmuch as Parris had worked in the office and, ac-
cording to Foote, she wanted to work there again, Foote
was hesitant to give her an authorization card. He was
also hesitant to give Napper a card because she was the
assistant manager's sister-in-law. Nonetheless, he gave
both of them cards at the same time and both signed
them and gave them back to Foote. He did not remem-
ber discussing initiation fees with Parris and Napper
when he gave them their cards or when they returned
them to him. But after Drummond was placed on notice
that there was an organizing drive Foote started to talk
to employees about the Union. s 6 Parris was working in
the office a few days a week, and she discussed with
Foote what would happen if she was switched from the
office to production "after . .. [the Union] had a con-
tract and . . . was in .... " Allegedly, he advised her,
aware that she had signed an authorization card, that if
that occurred she would probably have to pay an initi-
ation fee.
Before Drummond received the above-described letter
from the Union, Foote assertedly made a point of not
discussing the Union with Logsdon since he did not trust
Logsdon who he believed would tell the Company and
might cause him to lose his job. Shortly after the letter
was received, Foote saw Logsdon making a delivery at
the Bardstown Road facility. Foote asserts that this is the
first time he discussed the Union with Logsdon and the
only time he asked Logsdon to sign an authorization
card. Logsdon, upon being asked by Foote if he would
sign an authorization card, replied: "You're crazy. You
know it won't go. They'll fire you. They're going to fire
you. They fire everybody that tries to get a union in.
They always have. You must be nuts." Foote denies that
he ever had a conversation with Logsdon about initiation
fees. 7
Foote was "pretty sure" he gave Lewis an authoriza-
tion card but he did not recall having any conversation
with him at the time he gave him the card. He believes
that he told Lewis "at some point or another that all ini-
tiation fees would be waived" and he denies that he told
Lewis that the initiation fee would be waived if he
signed a card. Foote believed that Lewis was a company
man and he was advised by other employees that Lewis
had just been married and Foote had better watch him
because he had changed.
During the organizing drive, Foote heard that Vermil-
lion had stated that he and Simpson had sexually har-
ss As indicated above, Parris' card is dated March II Resp Exh 6.
The letter to Drummond informing him that Foote was assisting the
Union in its organizing drive was dated March 14 G C. Exh. 2. As Foote
indicates in his affidavit, "[a] few days after the letter was sent to them
with my name on it they started pulling small groups into the break
room. I was in one. Drummond read from a piece of paper that there
would be an initiation fee of $75." G.C. Exh. 13, p 3. Eventually this
figure was raised to $150. In response to employees' subsequent questions,
Foote indicated that he advised the employees that there would be no
initiation fee, that it was waived; but that if there had been, the amount
would have been S125
s7 Logsdon. who works on the second shift usually comes in well
before the shift begins. He would go to Foote, who was finishing up on
the first shift, and say: "You're not going to win. It's not going to go
They'll fire you. They're going to fire you They always fire. They've
fired everybody else who tried it."
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assed her. Allegedly Foote never saw Vermillion before
the election herein, when as an observer he heard her
name called out. Foote denies that he went to Vermil-
lion's house and he denies that he ever went to Bard-
stown Road facility with any union official other than
Simpson.
On cross-examination Foote admitted that portions of
his affidavit were not factual. On brief, General Counsel
contends that "[c]onservatively estimated, Foote was
substantially impeached with his investigative affidavit
approximately 16 times." Respondent on brief points out
that Foote testified that:
[A]t the time he gave the affidavit he was simply
trying to forget the events of the election, which
had been very painful to him because of Company
harassment and simply had imprecise recall. He also
had been working all night[,] was tired and had
trouble reading Kopenhefer's handwriting.5 8
Some of the misstatements in the affidavit are trivial.
Some are not. One of the two admittedly false portions
of the affidavit dealing with matters of significance refers
to the Ladd pension. Also another portion of the affida-
vit which is not factual, and which is found on page 6,
deals with the Ladd pension. While this has some effect
on Foote's overall credibility, such credibility was not
determinative in deciding the Ladd pension issue. Ladd's
testimony was in substantial agreement with Foote's. The
other portion of the affidavit which Foote testified was
false deals with the matter at hand, viz, the waiver of the
initiation fees. Specifically Foot, in the affidavit stated:
I don't believe I discussed the Union's waiver
policy when I gave out cards. It's hard to remem-
ber. I may have discussed it when I gave them cards,
especially when they asked about it. If they asked me
about it when I passed them out I certainly did tell
them about it. About two at most asked me. I told
them, "the initiation fee is waived. We go in as a
group-everybody." I deny I ever told anyone that
they had to sign a union card before the election in
order to get out of the initiation fee. I might have
told some how much the fee was, but I made it
clear that nobody would have to pay the fee. [Em-
phasis supplied.]
On cross-examination, Foote testified that he did not be-
lieve the italicized portion of this statement is the truth;
that as far as he could remember no one asked about ini-
tiation fees; that when he gave the affidavit he could not
rembember whether any employees asked him about ini-
tiation fees but he thought they did; and that it was his
recollection when he testified at the hearing herein that
they did not ask him it.
The italicized portion was prefaced, as indicated
above, with Foote's statement that he did not believe he
discussed initiation fees when he gave out authorization
cards. He also indicated that it was hard to remember.
And what follows the italicized portion, viz, an un-
B8 The affidavit was not typed but rather handwritten by Kopenhefer.
After Foote testified "I can't hardly Isic] read your writing" Kopenhefer
stated "neither can I." As indicated above, the affidavit was received.
equivocal denial that he "ever told anyone that they had
to sign a union card before the election in order to get
out of the initiation fees" is really the issue at hand.
After reviewing the evidence, it is my opinion that while
Foote's credibility was adversely affected by what was
brought out on cross-examination regarding the affidavit,
it was not materially adversely affected to the extent that
his testimony should be disregarded. While misstatements
in affidavits cannot be condoned, this case does not turn
solely on the credibility of Foote. Admittedly, he made
misstatements in his affidavit but, nonetheless, I found
him to be a credible witness while testifying at the hear-
ing herein. As indicated herein, that is not the case with
certain of the other witnesses.
2. Analysis
Amended paragraph 7(c) of the complaint alleges that
Respondent acting through Foote during mid-March
1980 at the employees' facility, told employees that they
would not have to pay union initiation fees if they sub-
mitted authorization cards to Respondent prior to a
Board-conducted election. The facts of record do not
support this allegation.
Four Krispy Kreme employees, Parris, Vermillion,
Logsdon, and Lewis, testified that Foote told them indi-
vidually when he passed out authorization cards that
they would not have to pay union initiation fees if they
submitted authorization cards to Respondent prior to the
election. There were no witnesses to any of the alleged
unlawful waivers except that which allegedly occurred
between Parris and Foote. And the alleged witness to
that unlawful waiver, Darlene Napper, was not called to
corroborate Parris' version. Napper no longer works for
Krispy Kreme. Seven witness testified that Foote dis-
cussed authorization cards with them individually but
none of these witnesses indicated that Foote made what
would be an unlawful conditional waiver of initiation
fees. 59 This alone of course does not mean that Foote
could not have acted unlawfully as alleged by the four.
But Foote denies that he ever told anyone that they had
to sign a union authorization card before the election in
order to avoid the initiation fee. And the testimony of
the seven witnesses supports Foote's assertion. On the
other hand, the testimony of the four witnesses claiming
that Foote acted unlawfully when he distributed the au-
thorization cards cannot be accepted as credible. Each of
the four, for the reason stated below, gave testimony
which cannot be relied on, testimony which, in my opin-
ion, was intentionally meant to favor Krispy Kreme at
the expense of the truth.
As indicated above, while there was a witness present
when Foote gave Parris her authorization card, that wit-
ness, Napper, who no longer works for Krispy Kreme,
was not called to corroborate Parris' version. Parris
signed her authorization card on March 11, which was
before the letter was sent to Drummond indicating that
Foote was aiding the Union in organizing Krispy Kreme
employees. Foote indicated that he was very concerned
$5 Lees, Meyer, Nelson, Ladd, Akemon, Price, and Moore. The last
four named witnesses were called collectively by General Counsel and
the Company.
784
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
about being fired before the letter was sent and was cir-
cumspect in his conduct. He did not trust Parris because
at one time she worked in the office and wanted to work
there again, and he was concerned that word of his ac-
tivities would get back to the Company. Darlene Napper
was the sister-in-law of Krispy Kreme's assistant man-
ager at the Seventh Street facility. General Counsel
argues that Foote made an offer of financial inducement
to most employees who displayed any reluctance to sign
an authorization card. This was not the case with Parris
however. Parris and Napper came to Foote. Parris
needed no real inducement to sign the card. Albeit she
alleges that Foote said that she should sign the card to
avoid paying an initiation fee, she also testified that
Foote did not say how much the initiation fee would be.
It could have been nominal; i.e., $1.60 And, therefore, if
one were hesitant there would have been, from a practi-
cal standpoint, no real economic inducement to sign an
authorization card. While Parris remembered the exact
words Foote allegedly used, "initiation fee" and not just
"fee" she allegedly could not remember what the men
sent in by the Company may have said about initiation
fees. In fact, she could not even remember what the
company men said about anything. Parris was not a
credible witness. She was the only one who testified re-
garding the first meeting at Sandy's that Simpson, in re-
sponse to a question, stated that if a certain percentage of
people signed the cards then an election would not be
necessary. The other witness called by General Counsel
could not remember Simpson making such a statement.
Others present testified that no such statement was made.
Parris believed that Napper was the one who asked the
question, viz, why should employees have to sign cards
anyway. Napper had already signed an authorization
card weeks before the meeting and she did not testify
herein. She no longer works for Krispy Kreme. Also,
Parris believed that the first meeting took place at
Sandy's about 3 weeks after she signed her card. As indi-
cated above, the card was signed March 11. Simpson and
others testified that there was no discussion of authoriza-
tion cards at the meeting because all of the employees
present had already signed authorization cards. Simpson
indicated that the cards were already turned in and he
thought that the Union had already petitioned for an
election. If the meeting occurred 3 weeks or more after
Parris signed her card, then the petition would have been
filed already. At no time did the Union request recogni-
tion based on a majority of employees' signed authoriza-
tion cards. Parris impressed me as being an aggressive,
ambitious individual who would not hesitate to, and did
in fact, place self-interest above the truth. Her testimony
cannot be credited.
Vermillion testified that Foote in the company of an
unidentified union representative made what would
amount to an unlawful conditional waiver of an initiation
fee while attempting to get her to sign an authorization
card at her residence. Foote denied that he ever saw
Vermillion before the day of the election. Vermillion's
allegation is different in that she alleges she was told that
if she signed an authorization card before the election
0o Compare N.LR.B. v. Stone & Thomas, 502 F.2d 957 (4th Cir. 1974).
she would have been charged $10. No one else made a
similar allegation.6 ' Parts of Vermillion's recitation are
incredible. And during her testimony Vermillion contra-
dicted herself with respect to: (I) whether this unidenti-
fied union representative had in fact introduced himself
in the earlier visit to the Bardstown facility; (2) what this
unidentified representative was wearing when he visited
her at her residence; and (3) whether this unidentified
union representative did in fact speak during his visit to
her residence. When pressed on redirect examination for
details, the witness sought escape with: "It's been so long
ago and my memory is not good." Vermillion's testimo-
ny was rambling. She was very nervous while testifying,
constantly fidgeting and hesitating for long periods
before answering. She gave the impression that she was
either fabricating a portion of her testimony as she testi-
fied or that she was attempting to recall the content of
her affidavit. Vermillion impressed me as being a very
frightened individual, frightened not necessarily about
testifying but about her job. Frightened to the extent
that, if necessary, she would be less than truthful, al-
though reluctantly, to insure that she kept it. 62
Logsdon and Lewis also alleged that Foote made what
would have been an unlawful conditional waiver of initi-
ation fees in an attempt to get them to sign authorization
cards. Foote denies this. Both Logsdon and Lewis also
impressed me as being individuals who were very fright-
ened about keeping their jobs. Nelson's testimony that
right after the election Lewis said that he was for the
Union but he was "scared of his job" is credited notwith-
standing Lewis' denial that he said anything at that time
because Lewis is not a credible witness. As indicated
above, his version of the Ladd-Foote altercation was not
supported by either of the principals. Lewis remembered
little about his conversation with Foote other than what
Foote is alleged to have said about initiation fees. Logs-
don did not deny that he repeatedly told Foote that the
Company was going to fire him; that they "fire every-
body that tries to get a union in"; and that Foote was
"crazy . . . nuts" for making the attempt. Logsdon did
not want any part of the Union. While Logsdon and
Lewis differed in physical appearance and in the way
they testified, 63 they shared a common bond in that
both, in my opinion, had an overwhelming fear of losing
their jobs. That fear, in my opinion, cast a cloud between
the truth and falsehood so that with this obfuscation only
the latter was visible to these two individuals. Their tes-
timony, like that of Vermillion and Parris, cannot be
credited. The record, therefore, does not support the al-
61 Taking this to its possible logical conclusion, one must wonder
what, if Vermillion is believed, Foote would have done with a S10 check
made out to the Union
62 The witness did indicate that she had "started" a union herself at a
Louisville department store a long time ago when she was making 85
cents an hour. Clearly that was at a different time and under different
circumstances.
65 Logsdon, at the time of the hearing, was a lean individual who at-
tempted to give the impression of being very sure of himself to the point
where he had tremendous difficulty in accepting the fact that his affidavit
contradicted certain of his testimony. Lewis was the physical opposite.
He lacked self-confidence and hesitated frequently while testifying. He
was not even sure whether the election he voted in took place in May or
March.
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legations made in amended paragraph 7(c) of the com-
plaint, and it is dismissed.
Amended paragraph 6 of the complaint alleges that
during late March or early April 1980, the exact dates
being unknown to me, Respondent, acting through Ricky
Simpson, told employees that they would not have to
pay union initiation fees if they submitted authorization
cards to Respondent prior to a Board-conducted elec-
tion. 64
In support of this allegation General Counsel called
two witnesses, Parris and Akemon, who tsstified about
one meeting they both attended which was conducted by
Simpson at a local restaurant. 65 Both allege that Simpson
said that employees who signed authorization cards
would not have to pay an initiation fee. Akemon alleges
that Simpson said the employees who had not signed au-
thorization cards would have to pay an initiation fee. 66
Everyone who was present agreed that no authorization
cards were passed out at the meeting. In fact all the em-
ployees in attendance had already signed authorization
cards.
As indicated above, Parris, in my opinion, is not a
credible witness. Akemon testified that prior to testifying
at the hearing herein she did not discuss what occurred
at this meeting, not even with General Counsel who
spoke with her for the first time the morning she testi-
fied, advising her that she had to testify, and personally
transporting her to the hearing. Akemon remembered
little else about the meeting other than what Simpson
and Foote allegedly said about initiation fees. And her
version of what else she remembered appears to be con-
trary to what others present remembered. To illustrate,
according to Akemon, Simpson said that "Our hospital-
ization and stuff would be better, a lot better than we
had." Other witnesses testified that Simpson specifically
said he could make no promises about benefits. In an at-
tempt to demonstrate that Akemon could recall other as-
pects of this meeting, General Counsel on redirect exami-
nation asked her whether she ordered any food. She re-
member she had a Coke. But when asked on recross-ex-
amination who paid for it she initially testified that Simp-
son paid for it along with all of the other employees'
Cokes. Only after she was asked if she recalled Simpson
saying that he would not pay for it because he did not
want the Company to think it was a bribe did she recall
that employees had in fact paid for their own drinks. At
a minimum Akemon was confused in her recollection of
what was said and what occurred at this meeting. Her
testimony is not reliable and is not credited. Napper also
attended this meeting but she was not called as a witness.
s4 As indicated above, General Counsel amended the complaint the
first day of the hearing herein to include this allegation which was based
on evidence he "discovered" or "became available to . . . [him .. the
evening [before the hearing began]."
8s On rebuttal the Company called Livengood to testify about a union
meeting where an unidentified union representative spoke. As indicated
above, his testimony is not credited. Apparently none of these company
witnesses had given affidavits regarding what was allegedly said by
Simpson at the meeting.
66 Akemon alone also alleges that Foote made this same statement
dunng the meeting.
What did Simpson say about initiation fees at the first
meeting at Sandy's 67 Accounts vary from Simpson
saying all initiation fees are waived to "there was no ini-
tiation fee for us to pay . . . people that already work
there . . . but anybody that come [sic] in after the Union
got in and everything . . . they would have to pay an
initiation fee" to "if you are working at Krispy Kreme at
the time that the Union was voted in, you would not
have to pay an initiation fee. But, if you were hired in
afterwards, you would," to Simpson himself testifying
that he thought he gave the union policy, viz, that all ini-
tiation fees are waived, but he was not sure.
I hesitate to make a finding with respect to exactly
what Simpson stated at the first meeting at Sandy's re-
garding initiation fees. There is no credible evidence of
record, however, in support of the contention that Simp-
son told employees that they would not have to pay
union initiation fees if they submitted authorization cards
to the Union prior to the election. The Union does not
have the burden of proof on this issue. It is noted that all
of the employees at the meeting had already signed au-
thorization cards. None were passed out at the meeting.
And, if the meeting was held in early April, the Union
had already filed a petition for an election. Simpson testi-
fied that he was pretty sure he already turned the cards
in.
General Counsel and the Employer allege that the
type of conditional waiver condemned by the Supreme
Court in N.L.R.B. v. Savair Manufacturing Company, 414
U.S. 270 (1973), was made here. There the Court was
faced with the situation where: (1) there was an election
and the company filed objections to it; (2) union officials
explained to employees at meetings that those who
signed authorization cards would not be required to pay
an initiation fee while those who did not would have to
pay; (3) those who solicited authorization card signatures
advised employees that there would be no initiation fee
charged as to those who signed authorizations before the
election; (4)
[t]he record demonstrates the pressure which em-
ployees felt to sign up with the Union quickly,
before the election and perhaps even before the rep-
resentation petition itself was filed, a pressure utter-
ly inconsistent with a belief that a waiver would be
available to them up to the time a collective-bar-
gaining agreement was signed after the election. [Id.
fn. 4 at 273 and 274.]
(5) employees testified that they signed authorization
cards because otherwise they would have had to pay an
initiation fee; and (6) the change of just one vote would
have resulted in a 21 to 21 election rather than a 22 to 20
election. The majority of the Court68 in affirming the
Sixth Circuit Court of Appeals, which reversed the
Board, held that the Board could not sanction a proce-
dure whereby a union waives initiation fees if employees
07 Since Akemon's testimony cannot be relied on, her uncorroborated
assertion that Foote also spoke of initiation fees at Sandy's is not cred-
ited.
66 Chief Justice Burger and Justices Douglas, Stewart, Marshall,
Powell, and Rhenquist. Justices White, Brennan, and Blackman dissented.
786
BAKERY, CONFECTIONERY AND TOBACCO WORKERS, LOCAL 213
sign authorization cards before the election rather than
up to the time a collective-bargaining agreement is
reached.
In the instant proceeding it has not been established
that employees were advised by the Union or by some-
one acting on its behalf that they would have to sign au-
thorization cards before the election in order to avoid
paying an initiation fee. Except for Parris, only three em-
ployees, Vermillion, Logsdon, and Lewis, testified that
they were pressured by threats of an initiation fee. Not
one of the three attended the meeting at Sandy's. As in-
dicated above, the testimony of these three individuals
has not been credited. None signed an authorization
card. Parris did attend the meeting at Sandy's but she
signed her authorization card 3 weeks before the meeting
was held. Obviously she could not have, therefore, been
pressured to sign an authorization card by any statement
made at the meeting. In fact, not one witness testified in
the instant proceeding that he or she signed an authoriza-
tion card subsequent to the first meeting at Sandy's and
before the election because he or she wanted to avoid
paying an initiation fee. Unlike the situation in Savair
Mfg. Co., supra, here the vote was 20 for the Union and
14 against the Union. 6 9
Even if Simpson stated at either of the meetings at
Sandy's that those hired after the election would have to
pay an initiation fee, this would not amount to conduct
condemned by the Supreme Court in Savair Mfg. Co.,
supra. The statement cannot be interpreted to mean that
those working at Krispy Kreme at the time of the elec-
tion would have to pay an initiation fee after the election
if they had not already joined the Union. Individuals em-
ployed at Krispy Kreme at the time of the election could
not believe that they were being pressured by such a
statement. The only individuals who would be affected
would be individuals who were not working at Krispy
Kreme at the time of the election and who, therefore,
would not be voting in the election. The Court in Savair
Mfg. Co., supra, "was concerned with the . . . [protect-
ed] right[s] of employees to refrain from union activity
and with the buying of endorsements through the waiver
of initiation fees to those joining before the election and
thereby painting a false portrait of employee support."
Kobayashi Travel Service d/b/a Polynesian Hospitality, 223
NLRB 768 (1976). Here there was no such limitation.
There was to be no initiation fee for those employed at
Krispy Kreme at the time of the election. Consequently,
regarding individuals who were employees of Krispy
Kreme as of May 22 and 23, there was an unconditional
waiver of initiation fees. Unconditional waivers were ap-
parently approved by the Supreme Court in the dictum
in Savair Mfg. Co., supra. They have been approved by
the Board and reviewing courts. The Prudential Insurance
Company of America v. N.L.R.B., 529 F.2d 66 (6th Cir.
1976).
General Counsel and Krispy Kreme emphasize the fact
that employees discussed initiation fees, and allegedly
they were confused about whether they would have to
pay one. There is no evidence of record that the employ-
ees' discussions or alleged confusion were the result of
a0 There were four challenged ballots
what was said at the first meeting at Sandy's. Whatever
confusion existed appears to be the fault of Krispy
Kreme. Credited testimony of record establishes that
Drummond, the Seventh Street manager, told employees
in at least one meeting and repeatedly on the production
floor that the Union was going to charge an initiation
fee. The fee assertedly was going to be anywhere from
$70 to $150. Drummond did not testify at the hearing
herein. Krispy Kreme does not deny that this oc-
curred. 7 0 The Company created the confusion and now
it is attempting to capitalize on it. This is not a situation
where the Union jeopardized the chance for a fair elec-
tion. Rather, Krispy Kreme made an issue out of what
would otherwise have been a nonissue.
Since the record does not support the allegation of
facts made in amended paragraph 6 of the complaint, it is
dismissed. Consequently, it is not necessary to determine
whether the alleged Savair Mfg. Co., supra, violation
could be an unfair labor practice in violation of Section
8(b)(l)(A) of the Act.
Vl. OBJECT IONS
In view of the fact that Krispy Kreme's objections are
based on the same conduct as that alleged as the basis for
the above-described unfair labor practices, and in view
of the fact that it has been determined that there is no
factual basis in the record for finding that the Union en-
gaged in the conduct alleged, said objections shall be
overruled.
CONCL USIONS 01 LAW
1. Krispy Kreme Division, Beatrice Foods Co., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Bakery, Confectionery and Tobacco Workers
International Union, Local No. 213, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. As found above, the Union has not engaged in the
unfair labor practices alleged in the complaint.
4. Krispy Kreme's objections to the election are not
supported by the credible evidence of record and, there-
fore, are overruled.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and upon the entire record herein, and
pursuant to Section 10(c) of the Act, I make the follow-
ing recommended:
ORDER71
The complaint in Case 9-CB-4595 is hereby dismissed
in its entirety.
70 As noted above. I.ivengood's testimony, to the extent that it could
be interpreted to be a denial of this, is not credited
? In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National L.abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
787
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The objections in Case 9-RC-13315 be and are hereby
overruled.