Baptista's Bakery, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 22, 2006

30-CA-017104 (N.L.R.B. Dec. 22, 2006)

JD–87–06
Franklin, WI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

BAPTISTA’S BAKERY, INC.1

and Cases 30–CA–17104
30–CA–17268
TEAMSTERS LOCAL UNION NO. 344 30–RC–6604
SALES AND SERVICE INDUSTRY,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS2

Angela B. Jaenke, Esq., and Paul Bosanac, Esq.,
for the General Counsel.
John E. Murray, Esq., of Milwaukee, Wisconsin,
for the Respondent.
Timothy C. Hall, Esq., of Milwaukee, Wisconsin,
for the Charging Party/Union

DECISION

STATEMENT OF THE CASE

MARK D. RUBIN, Administrative Law Judge. These cases were tried in Milwaukee,
Wisconsin, on various dates in February, April, and May 2006, based on charges filed in 2005
by the Union on February 11 and August 15, and a representation petition filed by the Union on
February 8, 2005. Both charges were amended on various dates.

The Acting Regional Director’s amended consolidated complaint dated February 22,
2006, alleges that the Respondent violated Section 8(a)(3) of the Act by permanently laying off
six employees,3 discharging employee Kathy Mankin, and disciplining employee Donna McCall.
The complaint further alleges that the Respondent violated Section 8(a)(1) of the Act by the
following actions related to the union organizing activities of its employees: restatement or
promulgation of its no-solicitation rule, solicitation of, and positive response to, grievances and
promise of benefits, threats of loss of benefits, informing employees that everything would “start
from zero,” that the Employer could not grow if the Union were successful, and that the
organizing campaign was preventing an employee from receiving increased pay, threats of plant
closure, informing employees that it wanted employees with “good attitudes” and employees
who “don’t cause trouble or open their mouths” to move forward with, informing employees that
the Respondent was finally making money and that this would be ruined “by bringing in a third
party,” offering to disclose and disclosing confidential information about employees, implying

1 Respondent or Employer.
2 Charging Party or Union.
3 Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, Judy Zullner, and
Kathi Szuszka.

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surveillance of union activity, comparing the Union to a “crack addict,” and granting benefits
including a Major League Baseball outing, free jackets, an employee-of-the-year award, and
complimentary dinners at area restaurants.

The Respondent maintains variously, that certain of the alleged actions are precluded by
Section 10(b), that others were permissible under the Act, and that others did not occur or were,
essentially, taken out of context. The Respondent further contends that the alleged layoffs were
unrelated to union organizing activities, and were, instead, generated by a slowdown of the
Respondent’s business, and that the discharge of Kathy Mankin and discipline of Donna McCall
were not violative of Section 8(a)(3).

The parties also litigated election objections filed by the Union and challenges filed by
the Respondent, which are essentially parallel to the unfair labor practice allegations. The
Respondent challenged the ballots of George Ann Bohen, Judy Zullner, and Kathleen Szuszka,
all of whom were alleged in the complaint to be permanently laid off in violation of Section
8(a)(3). In its brief, the Union maintains that the Respondent’s challenges should be overruled
and the votes counted, that if the Union then prevails it should be certified, and that if it does not
or if the challenges are upheld, a rerun election should be ordered pursuant to its objections.

At the trial, the parties were afforded a full opportunity to examine and to cross-examine
witnesses, to adduce competent, relevant, and material evidence, to argue their positions orally,
and to file post-trial briefs. Base on the entire record, including my observation of the witnesses
and their demeanor, and after considering the oral argument and brief of the Respondent, and
the briefs of the counsel for the General Counsel and the Union, I make the following

FINDINGS OF FACT

I. Jurisdiction

The Respondent, a corporation, maintains an office and place of business in Franklin,
Wisconsin,4 where it has been engaged in the snack food manufacturing business. During the
calendar year 2005, in conducting said business, the Respondent purchased and received
goods and materials valued in excess of $50,000 directly from suppliers located outside the
State of Wisconsin. It is admitted, and I find, that the Respondent is now, and has been at all
times material herein, an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.

II. Labor Organization

I find, and it is admitted, that the Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the Act.

III. Alleged Unfair Labor Practices

Overview

The Respondent operates a bakery/factory in the Milwaukee, Wisconsin metropolitan
area at which it manufactures baked snack foods. Sometime in January 2005,5 an employee

4 The only facility involved here.
5 All dates refer to 2005, unless otherwise indicated.

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contacted the Union, and an organization drive was put into motion. On February 2, the
Respondent permanently laid off six unit employees. The General Counsel maintains, and the
Respondent denies, that the Respondent had learned of the union activity prior to the layoff
decision. The Union filed a representation petition with the Board on February 8, and both the
Respondent and the Union engaged in an election campaign that culminated in a Board-
conducted election on March 23. At the election, of 44 eligible voters, 21 cast ballots for the
Union, 22 against, and the Respondent challenged three voters, sufficient to affect the results of
the election. The Union filed objections to the conduct of the election on March 29. The alleged
unfair labor practices took place both before and subsequent to the election.

The Respondent

The Respondent’s predecessor company, Gardetto’s, along with one of its two bakery
manufacturing facilities, was sold to General Mills in 1999. Nan Gardetto, Respondent’s CEO,
and identified in the record as the Respondent’s owner, then formed Baptista’s in August 1999,
and located its operations at the Franklin facility involved herein, the Gardetto’s facility that was
not included in the General Mills transaction. Gardetto’s produced snack mixes at its two plants,
with the Franklin plant producing bread stick pieces that were part of the snack mixes. After the
Respondent began operations, the Franklin plant utilized two ovens to produce breadstick
pieces for the General Mills snack mix, which were packaged in large cardboard totes that held
up to 700 pounds, and also produced breadsticks and toasts which were packaged in trays.
Respondent is managed by its president, Tom Howe, and CFO Jon Becker. Reporting to Howe,
among other managers, are Vice President, Human Resources and Operating Services Thomas
Mayer, and Manager of Quality Assurance and Sanitation, Marlenea Jackson. At the time the
events discussed herein occurred, Brent Lepak was the vice-president, manufacturing.

Howe was hired by the Respondent in mid-2003. In mid-2004, he decided to change the
direction of the business by signing a 3-year contract to supply General Mills and by seeking
new business involving baking product, including pretzels and other snack foods, for major
customers including “Old Dutch” and “Weight Watchers,” to be sold under the customer’s labels.
In order to facilitate this new business plan, the Respondent purchased new equipment
including a large-scale oven,6 increasing its baking capacity by 50 percent, and new packaging
machines. As a result, by July 2004, the Respondent’s production volume increased
approximately two-fold.

In July 2004, the Respondent implemented a new work schedule to accommodate the
increased workload, which changed its operation from a 3-shift daily schedule, to 4 shifts,
operating 24 hours a day, either 6 or 7 days a week. To man the new shift structure, the
Respondent hired new employees in July through September 2004, many of the new hires
coming from the newly defunct American Italian Pasta Company in nearby Kenosha,
Wisconsin.7

Much of the testimony and evidence dealt with the issue of the state of the Respondent’s
business at the time it decided on and implemented the permanent layoffs in early 2005. The

6 Added to the then current two ovens.
7 Various witnesses described tensions between the existing Baptista’s employees, and the
newly hired “pasta employees” or “pasta people,” as they were frequently referred to in the
record. From these accounts, I find that these tensions were at least partially caused by the
then current employees’ resentment over the Respondent’s decision to hire and/or promote
some of these new employees to lead, supervisory, and managerial levels.

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Respondent’s evidence consisted mainly of testimony by its managers to the effect that the
Respondent’s business, and the snack food business in general, is seasonally cyclical and that,
further, due to poor sales, the Old Dutch and Weight-Watchers’ business had never reached
expected goals, with the Respondent experiencing and expecting reductions in the amount of
product that needed to be produced for these two customers. This issue is discussed, in detail,
below.

The Layoffs, Union Organizational Activity, and Respondent’s Knowledge

Paul Brzezinski, an employee of the Respondent, first contacted the Union on January
12, which resulted in a meeting on January 17 at the Union’s offices in Milwaukee with Business
Agent/Organizer James Dillon. Brzezinski and Dillon agreed to arrange two meetings for
Respondent’s employees and Dillon at the Union’s offices on January 20 and 22. Brzezinski,
who was on medical leave at the time,8 telephoned various employees to inform them of the
union meetings. Dillon conducted these two meetings, and discussed with the employees
present what was entailed in organizing a union, including the necessity of obtaining signed
authorization cards and forming an organizing committee. At these meetings, Dillon told the
employees that for the time being they should keep the fact of the organizing drive to
themselves and to other employees they thought would be interested.

The Respondent announced the permanent layoffs of the alleged discriminatees, and
the restructuring of its shift schedule on Wednesday, February 2. The February 2 memo from
Respondent’s president, Howe, to “all shop employees” began with the following two
paragraphs:

As all of you have noticed from our work activity, we are
experiencing the annual post-holiday lull in orders that always
affects the snack industry, something I explained in my notice of
July 9, 2004, when announcing our change to a 7/24 two-week
rotation. This slowdown is common throughout the snack
industry, and snack companies typically adjust their work
schedules, reduce their work weeks, and schedule plant
shutdowns.

As a result of this slowdown, it is necessary that we remain
flexible and also make adjustments in our work schedule to reflect
our current and near-term customer demands.

The memo from Howe also, in pertinent part, stated as follows:

The second step we’ve taken, and one we regret was necessary,
is the layoff of some members of our workforce to reflect our
current and near-term business level and added capacity going
forward. These involved tough decisions, we provided those
people some assistance to help during their transition to new
opportunities, and our focus was on retaining people possessing
the skills, knowledge, flexibility, reliability and attitude that provide
the best foundation for building for the future. (emphasis
contained in original)

8 He eventually returned to work 6 days before the representation election.

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Finally, the memo stated as follows, in pertinent part:

Please do not read anything into these changes beyond it being a
temporary seasonal adjustment. Our business is growing, we
have made significant investment in baking and packaging
equipment to foster that growth, and potential customers are
excited about what Baptista’s to (sic) offer.

During their shifts on February 2, the Respondent laid off five of the six employees who
are alleged in the complaint as permanent layoffs in violation of Section 8(a)(3): Judy Zullner,
Dennis Sobiech, John Crowley, Lynda Starrett, and George Ann Bohen. They were informed of
their layoffs, and escorted out of the plant. The sixth alleged discriminatee named in the
complaint as being permanently laid off on February 2, Kathi Szuszka, was not, in fact, laid off
by the Respondent. Her situation is discussed below.

Dillon held another organizational meeting for the Respondent’s employees on February
5. At this meeting, Dillon discussed forming an organizing committee and opined that the
easiest way to protect union supporters was to tell the Respondent their names. On February 7,
the Union mailed and faxed a letter to the Respondent’s president, Howe, notifying the
Respondent of the names of the employee members of the Union’s organizing committee,
including Bohen, Zullner, and Szuszka.

The Respondent’s vice-president, Mayer, received the Union’s fax the evening of
February 7. Mayer called Howe, Gardetto, and the Respondent’s legal counsel, and notified
them of the receipt of the Union fax. Mayer, Gardetto, and Howe met the following day to
discuss the fax, and Mayer gave Gardetto and Howe copies. They agreed not to discuss the
union organizing until they had spoken to legal counsel, but to meet the following day, February
9, with the management group including the shift managers and supervisors.

On February 9, Mayer, Gardetto, Howe, Vice-President of Manufacturing Brent Lepak,
Director of Engineering Gary Olson, Maintenance Supervisor Jeff Sertich and manager Russell
Sparks met to discuss the developments. Mayer told the group that he had received a fax two
evenings earlier regarding an organizing committee for the Union. Gary Olson responded that
weeks before, he heard Brzezinski say that “we ought to get a union.” Olson said he thought it
had been a “passing remark.” Sertich said that maintenance mechanic Terry Cantwell had
made a comment about a union to him weeks earlier as well, and that Sertich had reported the
remark to Lepak within a day or two of hearing the comment. At the meeting, Lepak
acknowledged that Sertich had so informed him a couple of weeks earlier.9

Brzezinski’s comment to Olson concerning “we ought to get a union” occurred at a
gathering about January 26, or earlier in January, 10 for an employee leaving the Respondent’s

9 My findings as to what occurred at this meeting are based on the credited testimony of
Mayer, and the admissions in Respondent’s position statement submitted to the Region during
the investigation and introduced as an exhibit. As to the position statement, see Dobbs
International Services, Inc., 335 NLRB 972 (2001).
10 I find that this conversation occurred about January 26 based on the testimony of Mayer
to the effect that Olson admitted at the February 9 management meeting that the conversation
had occurred weeks earlier, the admission of the Respondent in its counsel’s position statement
to the Region that the Olson conversation with Brzezinski had occurred “two weeks earlier,” and
Continued

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employ (unrelated to the issues in this case), at a Franklin, Wisconsin bar. Brzezinski began
talking about a union with those present, including Olson. At some point Olson and Brzezinski
had a conversation while playing pool. Olson commented that he thought, “it’s a good thing
that—what you are doing.” Brzezinski responded that he also thought it was good, that he
“don’t have nothing to lose anyways.”

Kathi Szuszka

Szuszka was employed as one of four QA Techs,11 each one assigned to one of the
then four shifts. Szuszka worked on the third shift. Quality Assurance Manager Marlenea
Jackson and Vice President Lepak met with Szuszka the evening of February 2. Jackson told
Szuszka that she was a good worker and the Respondent was not going to let her go, but a shift
was being eliminated so Jackson wanted her to work on the first shift as a sanitation specialist.
Szuszka responded that she preferred to work on the third shift. Jackson said that if the
Respondent returned to a four shift schedule, Szuszka would be the mostly likely candidate to
move into that position, but that she was being assigned to the first shift to receive more training
so as to be better prepared to return to a QA Tech position in the future.12 Jackson told
Szuszka that she hoped that being assigned to the first shift wouldn’t interfere “with her part
time job,” apparently a reference to Jackson’s belief that Szuszka had a part-time job
elsewhere. Szuszka said it would be no problem, but did not directly respond to Jackson’s
comment that she had a part-time job elsewhere. Szuszka testified that she, in fact, had no
part-time job elsewhere. Lepak suggested that it was possible that maybe the Respondent
could move her to second shift packaging if there was an opening there. The meeting ended
with Lepak saying that he would see if “someone had dropped out or something else that was
available.”13
_________________________
the testimony of Brzezinski that the conversation probably occurred in January, but he did not
know the exact date other than it was after January 17. Respondent called Olson as a witness,
but Olson did not testify as to the Brzezinski-Olson bar conversation, notwithstanding a claim to
the contrary in the Respondent’s brief. Olson’s testimony that at the time of the meeting, he
believed he was unaware that the “Teamsters were interested in an organizing campaign at
Baptista’s,” may simply reflect that Brzezinski mentioned a union to Olson, but nothing about the
Teamsters specifically. My finding of fact as to the contents of the conversation reflects
Brzezinski’s credible and unchallenged testimony.
11 Szuszka, Leslie Fintak, Sharon Cassel, and Judy Rautio.
12 Jackson credibly testified that in the past she had perceived that Szuszka had some
performance related problems related to the QA Tech position, and that additional training
would be necessary.
13 My findings here are based on the testimony of both Jackson and Szuzska. Lepak did not
testify as to this conversation. As noted elsewhere here, both Jackson and Szuzska
demonstrated by their demeanor an intent to truthfully answer questions of counsel for both
sides. On the other hand, this single conversation took place some time before the trial, and
recollections are affected by the passing of time. Jackson testified that, in effect, Szuzska
admitted that a second job would cause her problems moving to the first shift. Szuzska testified
that she did not have a second job, that she didn’t tell Jackson she had a second job, and it was
Jackson who brought up the subject. On the other hand, Szuzska admits that when Jackson
brought up the subject, she didn’t affirmatively tell her that she had no second job. I find that
while Szuzska did not affirmatively tell Jackson she did not have a second job, she left Jackson
with that impression by not denying such. I further find, that no matter the exact words used by
each, the meeting ended with Jackson under the impression that Szuszka would not accept a
transfer to first shift and that Lepak would see if there was an opening on another shift more
Continued

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When Szuszka reported to work on February 3, she learned she was not on the
schedule for the following week. She went to Mayer’s office and the two spoke. Szuszka told
Mayer that she was not on the schedule for the following week. Mayer responded that she had
refused a job. Szuszka said that Lepak was going to get back to her. Mayer again responded
that she had refused a job. There was additional discussion, and then Mayer asked her if she
was going to finish her shift. Szuszka said, “No.” Mayer asked for her employee badge and
then escorted her out of the plant.

The Election Campaign: Captive Audience Speeches/Meetings14

The Nan Gardetto Speech

The Union filed its representation petition with the Board on February 8. On February
18, Nan Gardetto spoke to all unit employees at a captive audience meeting held on the
Respondent’s premises. Gardetto used a prepared outline of points she wanted to
communicate to the employees, but departed from the outline occasionally.15 Gardetto told the
assembled employees that she felt embarrassed; that she felt shame that she had let the
employees down, and that she hadn’t done a good enough job communicating with them. She
said she cared a lot for her employees, “. . . and because of my situation at home16—I really
was feeling like I wasn’t enough.” She told the employees that she “felt very hurt and
abandoned when she received the letter” from the Union, and expressed to the employees her
thought that “that’s exactly how my employees must have felt” about her lack of communication
with them. Gardetto told the employees that her accessibility and communication with them
would be getting better and that her door was always open if they had any questions or
concerns.

Gardetto further told employees at the meeting that she wanted to correct any behavior
that may have caused the employees to feel unappreciated, and to correct any feelings of fear,
to speak out by creating a new culture based on open communication, problem solving, and
effective teamwork and trust. She said that the union organizing attempt was a “wake-up call,”
that she hoped she could discover “where the disconnect and hurts occurred” and to make
changes needed to continue a strong family business, and that Baptista’s “was not taking the
time to say thank you enough.” She informed the employees that she hoped she would be able
to continue going through the year addressing all their needs, the needs of customers, and the
need for profitability without the involvement of a third party, that she was committed to having
_________________________
acceptable to Szuzska, but that if there was no such opening there would be nothing for
Szuzska. Szuzska left the meeting under the impression that she had expressed opposition to
the first shift, but had closed no doors.
14 Both the counsels for the General Counsel and the counsel for the Respondent used the
term “captive audience speech” in their briefs to describe speeches given by various
management representatives to assembled groups of employees during the course of the union
campaign. The dates of some of these captive audience speeches and the order in which they
occurred is not clear from the record, except that they all occurred during the period beginning
with the Gardetto February 18 speech through about March 23.
15 Much of my findings as to what Gardetto said at the meeting are based on Gardetto’s own
testimony. Gardetto said she could not remember what she said “verbatim,” but could
remember the “gist.” I took Gardetto’s “gist” comment to apply not just to the specific questions
of counsel, but to her testimony as to her speech in general, unless she testified to the contrary.
16 Gardetto testified that her time had been occupied dealing with her husband’s illness.

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Tom Mayer focus on attending to employees’ needs again, and committed to creating
opportunities for “collaboration and communication on goals,” and celebrating employee
successes. She also told employees that she was human and had made mistakes but wanted
employees to come to her so she could fix them, that she was not too proud to hear what they
needed and to make the changes that they needed, that she was going to be more available in
the plant and more conscious and aware of what was going on, and would actively participate in
ensuring that the changes needed would happen.17

The Brett Lepak Speech

Brett Lepak, the Respondent’s vice-president of operations during material times,18 gave
a captive audience speech to employees during the course of the union election campaign.
Despite the testimony of five witnesses, including Lepak, the record does not establish the exact
date of the speech. Further, neither Lepak nor the other witnesses could definitively establish
whether Lepak gave one speech to assembled employees or similar speeches to assembled
groups on each shift, although Lepak testified, “I believe it was shift by shift.” I, thus, make no
finding as to the exact date of the speech, other than it was during the course of the union
election campaign, nor as to whether it was one speech or similar speeches to each shift.

In his captive audience speech(es), Lepak told the assembled employees that Baptista’s
had made mistakes but wanted to do better,19 that the company was doing well and they were
not headed towards more layoffs, that he didn’t care whether the employees had a union or not
but that the company couldn’t grow with a union, that Baptista’s wanted to move ahead people
with good attitudes, that employees shouldn’t forget to vote, and that whether an employee
voted “yes” or “no” it wouldn’t be held against him/her. Employee Sharon Cassel asked Lepak
about why employee Joe Carvalho had his lead position and pay taken away. There is no
evidence as to Lepak’s answer, if any. Employee Leslie Fintak asked Lepak about employee
Dennis Sobiech’s layoff. Lepak responded that a mistake made by Sobiech had cost the
company $20,000. Lepak also said that the company wanted to have mid-year reviews for all
employees and to have raises in June. 20

17 One employee present for Gardetto’s speech, Joe Carvalho, testified that Gardetto said
that people who were not happy should leave the company. No other witness for the General
Counsel so testified and, indeed employee Leslie Fintak testified that Gardetto did not make the
comments testified to by Carvalho and that, further, such comments would be out of character
for her. In their brief, counsels for the General Counsel do not mention or rely on Carvalho’s
testimony as to the alleged comment by Gardetto. On balance, I do not credit Carvalho’s
recollection of this alleged comment by Gardetto.
18 Lepak voluntarily left the Respondent’s employ for another job in February 2006.
19 In their brief, counsels for the General Counsel assert that this statement constitutes
solicitation of grievances and promise of a benefit, but concede that the statement was not
alleged as a violation in the amended consolidated complaint introduced during the hearing.
Inasmuch as the statement is not alleged as a violation, nor was there an attempt to amend the
complaint to add the allegation, and in view of my findings herein which make any findings as to
the statement redundant, I have not made any findings herein as to whether, in fact, Lepak’s
statement was a solicitation of grievances or promise of benefits.
20 In finding that this is what Lepak said, I generally credit the testimony, except as set forth
to the contrary, of all five witnesses who testified as to the captive audience meeting(s), each of
whom answered questions forthrightly and, generally, without hesitation on direct and cross-
examination, and demonstrating an intent to honestly answer, rather than avoid, questions:
Manager Lepak, and employees Mankin, Karboski, Fintak, and Mang. Of course, the event
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The Tom Howe Speech

Respondent’s president, Tom Howe, conducted 30-minute captive audience speeches
with each of three shifts on March 17.21 Howe talked to the assembled employees about the
state of the Respondent’s business including: that at one point the Respondent had been ready
to close the doors; that the Respondent’s Weight Watchers business had not done well in the
marketplace; that the company had made a substantial capital investment in pretzel baking and
packaging equipment; that sales had now grown from 5 million to 9–10 million; that the
Respondent was committed to find new products and customers to grow the business; that the
Respondent was committed to make the business work by better training for and
communication with its employees including using quarterly team meetings to share the state of
the business; that he didn’t want the union to come in and that he and Nan (Gardetto) were
working hard on changing things; that he was asking the employees to support the direction the
Respondent was going in; that they did not need union representation in order to move forward
and that union representation could become a “hurdle” in that the Respondent’s flexibility
would22 be restricted by the rules of a union contract; and that bringing in a third party or union
would ruin or wreck the progress the Respondent was making.23
_________________________
testified to occurred over a year prior to the testimony and not all of the recollections were
equally strong. Lepak, for one, said, in effect, he was more comfortable testifying as to the “gist”
of conversations, and his memory appeared somewhat hazy as to certain questions. For
example, Respondent’s counsel asked whether he made any comments that “specifically
referenced the union or organizing campaign?” Lepak began his answer, “Nothing that I can
think of specifically . . .” The Respondent’s counsel asked Lepak whether he recalled telling
employees that if the Union won the election, the company could not grow. Lepak answered,
“No,” and thus not denying that he said it, but testifying that he could not recall saying it. I, thus,
chose to credit the specific testimony of Mankin and Mang to the effect that Lepak said the
company couldn’t grow with a union. And while there was no other supporting testimony, I
chose to credit Mankin’s specific testimony that Lepak said words to the effect that the company
wanted to have reviews in mid-year for all employees to have raises in June. Lepak was not
asked about this alleged statement and, thus, did not deny it. However, the General Counsel
has not alleged this as a violation. Thus, and because a finding of a violation would be
redundant in view of my other conclusions herein, I do not conclude that Lepak’s comment as to
mid-year reviews and raises violated the Act.
21 An exhibit, a memo from Tom Mayer to “All Shop Employees,” established the date of the
speeches. In addition to Howe, General Counsel witnesses Sharon Karboski, Sharon Cassel,
and Rex Mang testified as to the content of Howe’s captive audience speeches. Inasmuch as
the testimony of the witnesses does not differentiate between the speeches given to each shift
and in considering the overall sense of Howe’s testimony, I find that essentially the same words
were used during each speech. Both Cassel and Mang attended the meeting for first shift
employees.
22 Howe’s actual testimony is, “That we would be- -in a union situation, we would be- - could
be restricted insofar as needing to follow the rules of the union contract.” Then, in answer to a
question of the Respondent’s counsel, Howe testified that he didn’t recall whether he used the
word “would” or “could.” There was no other evidence as to which word Howe used. Because
Howe first used the word “would” in his testimony before appearing to catch himself and say
“could,” I conclude that the initial words of his testimony are the reliable ones in respect to this
issue, and that, in fact, Howe used the word “would.”
23 Employees Rex Mang and Sharon Cassel, both witnesses for the General Counsel,
testified that Howe, in talking about the Respondent’s upbeat plans for the future, said words to
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Gary Olson/Mario Blanquel Speeches/Meetings

Olson gave two captive audience speeches to employees during the election campaign,
each time giving a similar speech to each of all three shifts.24 At the first speech, the supervisor
of the shift on which the speech was given was present. During the second speech, shift
supervisor Mario Blanquel was present at least for the meeting on the first shift.25 At the two
captive speeches he gave, Olson told employees that he was there to talk about the Union, that
he was against the Union, that choosing a union is overdoing it just like putting a tourniquet
rather than a “Band-Aid” on a cut finger is overdoing it, and that the Respondent had made
mistakes but that he, Blanquel, and Lepak were trying to change things and make them better
and treat them fairly by giving them, for example, enough advance warnings of shift changes.
Olson told the employees, as to notice of shift changes, that Tom Howe had stated that he
“would make sure that we would give them ample notice from that point on,” and that Howe had
also stated that “we were not going to work Sundays.”26
_________________________
the effect of asking employees why they would want to “wreck” everything by bringing in a
union. Mang testified that Howe said, “. . . why ruin this by bringing in another party.” Cassel
testified that Howe said that “Bringing in a union . . . would wreck everything.” Howe, when
asked by the Respondent’s counsel whether he had made any comment to the effect that if the
employees voted for a union, it would ruin the company or ruin the company’s progress,
answered “No.” While Mang and Cassel did not use identical words, the import of the words of
their testimony is the same: that is, that Howe told the assembled employees that choosing the
Union would ruin the Respondent’s otherwise upbeat progress. The fact that they did not use
identical words does not detract from the credibility of either witness. Based on my
observations of their demeanor as witnesses, including their generally unhesitating and
forthright answers to the questions of all counsel, I credit their testimony rather than the denial
of Howe. Howe’s credibility is discussed in more detail, infra.
24 The record does not definitively establish the dates of the speeches except that they
occurred during the union election campaign after the Gardetto speech and before the election.
25 I found, and Olson so testified, that he attended and spoke at two series of meetings,
each series consisting of a similar speech to each shift. I also find that Blanquel at least
attended and spoke at the first shift meeting for the second speech, which Olson also attended.
Olson testified that the first shift supervisor (Blanquel) attended the first shift meeting for the first
speech, and that Blanquel attended all three shift meetings for the second speech. Blanquel
testified that he only attended the first shift meeting for the second speech. The four General
Counsel witnesses, all employees, had differing recollections: Sharon Karboski testified to
remembering only one meeting with Olson. Rex Mang remembered two meetings with Blanquel
and Olson, the first of which Mayer also attended. Kathy Mankin remembered one meeting with
Blanquel and Olson. Sharon Cassel remembered one meeting with Olson and Blanquel on the
first shift. Because of this widely divergent testimony, some of which may or may not have
been caused by some of the employee-witnesses not attending all the meetings, I cannot reach
a definitive finding as to how many of these meetings Blanquel attended, other than he attended
at least the second speech for the first shift, but may also have attended all three shift meetings
for the second speech, and either one or all three shift meetings for the first speech.
Nevertheless, my factual findings as to what Blanquel and Olson said at these meetings are
based on my credibility assessments of all of these named witnesses, no matter at which
meeting(s) the comments may have been made.
26 Much of my findings as to what Olson said at the meetings come from his testimony,
which I have credited as to these meetings. However, Olson did not appear to have a complete
memory of these meetings, including comments such as “I don’t remember exactly,” in his
Continued

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At the meeting or meetings he attended, Mario Blanquel told the employees he had
worked for union employers, and unions promise a lot of things, but “why would you want to pay
union dues,” and that he would treat the employees fairly. At one of the meetings, employee
Joe Carvalho asked why he hadn’t been paid as a lead person. Blanquel responded that if the
Respondent ever went back to three shifts Blanquel would consider him the lead, and would do
his best to get Carvalho what he deserved.

At one or both of the Olson meetings, the subject of the permanent layoff of alleged
discriminatee Dennis Sobiech came up.27 At the first captive audience meeting, one or more of
the employees present brought up the subject of the permanent layoff of Dennis Sobiech, and
questioned why he wasn’t offered another position with the Respondent.28 One of the
employees asked why Sobiech wasn’t offered another job if he couldn’t handle the baking
process operator job. Olson said he would check into it. After the meeting, Olson met with
Mayer, and mentioned the question raised at the meeting.29 Mayer told Olson that one of the
disciplinary write-ups in Sobiech’s personnel file contained a notation to the effect that Sobiech
should consider relocating to a different position. At Olson’s request, Mayer gave Olson a copy
of the write-up.

Olson took Sobiech’s write-up with him to his second captive audience meeting. At the
second meeting, Olson, with Blanquel, told the assembled employees that, in fact, Sobiech had
been offered another position and that he had it in writing, “right here.” None of the employees
asked to look at the write-up, and Olson did not actually show the write-up to any of the
employees at the meeting.

_________________________
testimony. I have, thus, also credited the General Counsel’s witnesses who added to Olson’s
testimony and whose testimony Olson did not deny. I have credited Rex Mang and Kathy
Mankin that Olson said that the Respondent had made mistakes, that it wanted to do better, and
employees should give Respondent a chance, and credited Sharon Cassel that Olson said he
was at the meeting to talk about the Union and that he was against it.
27 General Counsel witnesses Karboski, Mang, Mankin, and Cassel testified as to the
subject of the layoff of Sobiech being discussed at one or both meetings, as did Respondent
witnesses Olson and Blanquel. The version of each witness is slightly different, but not
necessarily inconsistent, except that both Olson and Blanquel took credit for addressing the
Sobiech issue at the second meeting. All of the witnesses impressed me both by their
demeanor and answers, as making significant efforts to recall an event that occurred some time
ago and testifying truthfully as to it. Thus, I credit Olson as to the Sobiech discussions at the
meetings, and supplement that finding with the not inconsistent testimony of both the General
Counsel’s and the Respondent’s witnesses.
28 I credit both Olson and Cassel who testified that employees had questions as to the
Sobiech layoff.
29 In their brief, counsels for the General Counsel state that Olson testified that Mayer was
present at the first meeting, so it isn’t logical that Olson would report to Mayer what happened at
the meeting, if Mayer had attended the meeting. But I do not view Olson’s actual record
testimony as necessarily meaning that Mayer attended the first meeting. (“ Q. Who else from
management was there? A. In the first round of meetings the supervisor of the particular shift
was there. Q. Okay. A. And then Tom Mayer.”) Further, even if Mayer had attended the
meeting, that doesn’t preclude Olson and Mayer from later discussing what happened at the
meeting.

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After the meeting, Olson, Blanquel, Cassel, and Mankin had a side conversation.
Mankin and Cassel asked questions about why Sobiech was laid off. Olson and Blanquel
offered to show them Sobiech’s personnel file. Cassel asked why the “pasta people” (the
employees who had come over from AIPC) were being hired at higher wages than the
Baptista’s employees had been earning. Blanquel answered that it was because of “what they
brought to the table.” Both Blanquel and Olson asked if Cassel and Mankin had any ideas on
“how to improve,” and said that they wanted to make things better. Blanquel said that if any of
the employees wanted to meet them outside of work, at any time, they would be willing to
answer questions and “try to convince us that Baptista’s was going to be a better place for us
and things were changing and they were striving to work towards that.” At that point Cassel and
Olson left the conversation.30

After Olson and Cassel left, Blanquel and Mankin continued to talk. Blanquel again
asked Mankin if she had any ideas on how the Respondent could improve. Mankin responded
that she would have to think about it. Blanquel said that he would take Mankin out to dinner and
would pay for it so they could discuss her ideas. Mankin responded that she wouldn’t do that by
herself. Blanquel said that she could take anyone and he would pay for it out of his own pocket.
Mankin responded that she would think about it.31

I credit Blanquel’s testimony that during the course of his employment by the
Respondent as a supervisor, he had previously solicited suggestions from a number of
employees. The essence of Blanquel’s testimony was that from the time he started work as a
supervisor, he solicited suggestions from employees under his supervision as to how their work
could be performed better, easier, and faster. Blanquel testified that he asked for such
suggestions “because they do the job so they should know what can we do for them to get the
job easy. A lot of times we in management we overlook things and when we ask them they
come up with good ideas.” Blanquel also testified, “A lot of times the employees they bring it up
before me to a manager and it was not accomplished and it’s something we can do that is not
costly, they can get things done faster and better.”

The Election Campaign: Supervisor/Employee Conversations

Blanquel Conversation with Karboski

About 3 weeks before the election, Karboski was told by her leadperson to report to
Blanquel’s office, where Blanquel and Karboski spoke. Blanquel told Karboski that he wanted to
give her his take on the Union; that he didn’t believe in unions, and that it’s not always the way
they say it’s going to be. Karboski said she wanted the Union in. Blanquel said that in the
bargaining, the parties could start from zero and employees could lose their vacation.32

30 My finding as to what was said during this conversation is based on the credited and
uncontradicted testimony of Cassel and Mankin. As to this conversation, both witnesses
demonstrated excellent recall and answered questions without hesitation.
31 My finding as to what was said between Mankin and Blanquel is based on the credited
and uncontradicted testimony of Mankin.
32 My finding as to what was said between Blanquel and Karboski is based on Karboski’s
testimony and Respondent’s admissions in its answer, Paragraph 9(a)(ii). Karboski was taken
through the conversation a number of times by counsel for the General Counsel, counsel for the
Respondent, and the undersigned. She impressed me as trying her best to honestly and
accurately answer all of the questions of counsel. Her answer to the last question from
Respondent’s counsel, as clarified by the undersigned, is consistent with the rest of her
Continued

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Blanquel Conversations with Carvalho

Supervisor Blanquel and employee Carvalho had five conversations during the election
campaign period in February and March. In mid-February, Carvalho was told to report to
Blanquel’s office. Blanquel told Carvalho that he might get paid the following week as a lead
BPO, rather than just as a BPO.33 Blanquel then asked Carvalho if he knew anything about the
Union, Carvalho said he didn’t. Blanquel told Carvalho that Carvalho would lose his vacation
and seniority and that everything would start from zero if a union came in, and that the owner
would close down the plant. Blanquel said that he had worked for a union shop for 9 years and
knew the union is a bad thing.34

About a week to 10 days after the first conversation, Blanquel and Carvalho spoke in the
hallway outside the supervisor’s office. Carvalho asked why he wasn’t receiving the pay for a
lead BPO. Blanquel said because “we were in the process of union (sic) campaign.” Carvalho
asked why he hadn’t been paid as a lead since he had been performing the work for 8 months.
Blanquel said, “It’s up to people upstairs.”

At the end of February, Carvalho complained to Blanquel about receiving remuneration
for 2 days in his paychecks in lieu of 2 vacation days, when he did not request such in lieu pay.
Carvalho had, in previous years, accumulated all of his vacation days to use in one long annual
vacation and did not want pay in lieu of vacation days because he wanted to continue his
vacation practice.35 Blanquel told Carvalho that “it’s the way it’s supposed to be, is new
_________________________
testimony and is credible. She testified, “My basic recollection is he said we could start out from
zero and could lose our vacation.” In its answer, the Respondent admitted words similar to
those testified to by Karboski, but denied she was told vacation would be lost. The Respondent
counsel’s position statement, admitted in the record, was consistent with the Respondent’s
answer. Blanquel testified as to employees he had one on one conversations with, but did not
mention Karboski. He also testified that he didn’t remember speaking to any employee about
how contract bargaining worked or recall telling any employee that if a union came in,
everything started from zero. Again, based on Karboski’s credited testimony and Respondent’s
answer, I find that either Blanquel’s memory is faulty or his testimony as to this issue is not
credible.
33 Carvalho had been acting as a lead person from June 2004 until February 2005, but was
not receiving pay commensurate with the lead position. At the time of this conversation
Carvalho was acting as a lead.
34 In my observations, Carvalho, while experiencing some English language difficulties,
demonstrated the demeanor of a witness earnestly attempting to truthfully answer the questions
of counsel, both on direct and cross-examination. He demonstrated good recall and was
generally consistent in his testimony. I find Carvalho to be a credible witness. While his
testimony as to the conversations with Blanquel was generally uncontradicted, Blanquel did
answer “No,” when asked by Respondent’s counsel, “Did you ever tell any employees that the
plant would be closed?” Blanquel was not asked specifically whether he said that or similar
words to Carvalho. I also note that when Blanquel was asked to name the employees he
recalled individual conversations with, he named five employees, but not Carvalho. Based on
my observations of the demeanor of the two witnesses, and the impressiveness with which
Carvalho testified, I credit his testimony as to all of his conversations with Blanquel. Given the
level of detail Carvalho credibly testified to as to his conversations with Blanquel, Blanquel’s
testimony that, in effect, he didn’t talk about the Union to Carvalho, is not credible.
35 In 2004, the Respondent had announced a policy allowing employees the option of either
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administration, new management.” In mid-March, Blanquel walked up to Carvalho in the
lunchroom and told Blanquel, “Joe, you were right. You don’t have to take vacation days paid if
you want.”36 Carvalho then signed a form proffered by Blanquel, agreeing to pay back the
Respondent.

I also find, as to pay in lieu of vacation, that in July 2004 the Respondent had introduced
a new policy as to combining vacation pay and holiday pay into a single bank of paid time off,
and allowing employees the option of taking paid time off or receiving remuneration in lieu of the
time off.

Also towards the end of February, Blanquel spoke to Carvalho in the plant mixing room.
Blanquel told Carvalho, “So I want to show you that it’s true that Dennis Sobiech got a write-up
and this is his signature.” Blanquel showed Carvalho a paper which purported to be the
Sobiech write-up. Carvalho looked at the paper, but didn’t reply.

Mayer Conversation with Karboski

The Respondent’s vice-president for human resources and operating services, Mayer,
and employee Karboski spoke in the packaging room the day before the election.37 Mayer said
“Good morning,” and told Karboski that he had heard that she was going to be the Union’s
observer for the election. Karboski said “Yeah.” Mayer said that he was surprised that the
observer wasn’t Paul (Brzezinski). Karboski said that she had picked her side early on and that
she was going to stick with it. Mayer replied, “I hope you know what you’re doing.” Karboski
said, “Well, if it didn’t work out we could vote the union out in a year.” Mayer replied, “That’s
what crack addicts think too, that they can get off of it.”38

Lepak Conversation with Mang

In mid-February, Brett Lepak, the Respondent’s vice-president of operations, and
employee Rex Mang spoke in the mixing room. Lepak walked up to Mang in the mixing room
and told him that, “We have good work force, they’re good workers, and you don’t complain too
much.” Lepak also told Mang that “Things were looking good.”39

_________________________
taking paid time off or receiving money in lieu of the time off. There is no evidence that
Carvalho had made such a request. In fact, the evidence demonstrates that Carvalho wanted
his vacation days, not the pay in lieu.
36 Subsequent to this conversation with Blanquel, and prior to the election, Tom Mayer also
had a conversation with Carvalho in which the subject of Carvalho’s vacation preferences came
up. Mayer told Carvalho that the Respondent had just reinstated two employees who had
missed work because they were in jail, that the same flexibility which allowed the Respondent to
reinstate the workers, allowed the Respondent to grant Carvalho the 3 consecutive weeks of
vacation each year, and that Carvallho should think about it because if a union came in it would
be different. I credit Carvalho’s testimony on direct examination as to this, rather than the
similar answers he gave to summary questions on cross-examination.
37 Based on the record, it is impossible to determine who initiated the conversation.
38 My finding as to this conversation is based on the uncontradicted testimony of Karboski,
who testified with impressive demeanor and is a reliable witness. In his brief, the Respondent’s
counsel does not dispute Karboski’s version of the conversation.
39 I credit Mang’s uncontroverted testimony as to this conversation.

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Gardetto Conversation with Mang

About 2 weeks before the election, Mang and the Respondent’s founder and CEO Nan
Gardetto spoke in the mixing room.40 Gardetto walked up to Mang, mentioned that they go
back a long time and that he knew her whole family. Gardetto asked Mang about an old friend
they both knew. She told Mang that “things will be getting better” at the facility. Gardetto told
Mang that Respondent maybe was going to go back to offering anniversary awards to
employees. A previous program, which had been discontinued, provided that on certain
anniversaries of employment an employee could pick a prize from a catalog.41

Mayer Conversation with Mang

A week or two before the election Mang was told that Meyer wanted to see him. Mang
went to Mayer’s office. Meyer told Mang he knew the employees were kind of upset that the
Respondent had let Dennis (Sobiech) go, but that Dennis had been making mistakes and Mayer
was going to show Mang Sobiech’s personal [personnel] file showing that Sobiech had made
mistakes in the past. Meyer showed Mang a file which contained something about what another
supervisor had written about Sobiech.

Blanquel and Sparks Conversation with Mang

About 2 or 3 weeks before the election, Mang met for about 10 minutes in a supervisor’s
office with Blanquel and supervisor Russ Sparks. Blanquel said that he had worked for a
company that had a union and “they didn’t do nothing for him,” and asked Mang why he would
want to “pay so much money for union dues.” Sparks said he worked for a company that had a
union and he agreed with Blanquel that “they promise you this and promise you that . . . the
union is not all that it cracked (sic) to be.” Sparks gave his opinion that a union destroyed
hockey and that the NHL lost a year of play. Sparks showed Mang a list of employees’ names
and how much it would cost him each month for union dues. Blanquel asked Mang for
suggestions to “make the company better.” Mang suggested that there should be job postings
with a sign-up sheet.42 At some point after the conversation, Mang saw job postings in the
lunchroom.

40 I credit Mang’s uncontroverted testimony as to this conversation.
41 The previous program had been discontinued in about 1996 and, thus, may have been in
effect at Gardetto’s rather than Baptista’s.
42 Blanquel denied that he ever spoke to Mang about the subject of a union during the time
of the organizing campaign. Blanquel admitted that he had a conversation with Mang during
that time period, but testified “I don’t remember exactly the conversation.” Sparks did not testify.
As noted, I did not find Mang to be an infallible witness but was generally impressed with his
testimonial demeanor and his earnest attempts to truthfully answer questions to the best of his
ability, rather than just to give answers which were helpful to the General Counsel’s case. Here,
Mang demonstrated a good recollection for detail as to this conversation, and on balance I
credit his testimony over Blanquel’s denial that he spoke to Mang about the Union during the
campaign.
I note that Blanquel testified that he didn’t remember if it was during the union campaign,
but that “When I asked my employees, the people that work for me, I tell them, you know, things
are going to get better for them to make their job easy. One of the things that he brought up
was why can’t they post a job.” Blanquel testified that the conversation occurred as Blanquel
was talking to Mang about the Respondent bringing in new stronger hoses for cleaning.
Because I found Mang to be a generally reliable witness, and because I found Blanquel less so,
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Respondent, in fact, posted an available job and sign-up sheet on the lunchroom bulletin
board from March 2 through March 5. Respondent had posted such job openings and sign-up
sheets in the past, but not during 2005. Respondent had posted jobs in 2000 and 2002, and
sometime in 2004.

Blanquel had, on previous occasions, talked to Mang about improving production
processes. In 2004, when Blanquel first was employed by the Respondent, as a supervisor, he
asked Mang, the BPO with the greatest seniority at that time, and other employees, questions
about how they did their jobs, and how the jobs could be done better. Blanquel continued to ask
for suggestions, focused on the production of the Respondent’s products and how the
production processes worked. Blanquel also asked other employees for suggestions beginning
upon the inception of his employment with the Respondent. These suggestions involved
improvements in the production processes. For example, Carvalho suggested placing air hoses
closer to the production line for cleaning the ovens. Other employees suggested to Blanquel
placing hot water hoses next to a production line, more automatic systems, and putting alarms
into oven systems that did not have alarms. Blanquel sought these suggestions from the
employees he supervised in the mixing room and the packaging area in order to improve the
production processes, and he testified, “It’s something we can do that is not costly, they can get
things done faster and better.”43

In addition to asking Mang for suggestions, prior to September 2004 supervisors
regularly asked Karboski for her opinions as to how the Respondent was doing. After
September or October 2004, when Lepak was hired by the Respondent, he met with all
employees and asked for suggestions as to how things could operate better.44 There is no
evidence as to the number of such meetings or the dates on which they occurred.

Postelection

Election Day Memo Posting

On the day of the NLRB election, after the election, the Respondent posted a memo
from Gardetto and Howe to all employees. The memo, in pertinent parts, stated as follows:

Folks, the NLRB has informed us that all of you voted today to
continue to operate without a union…

The vote was 22 to 21, and we sincerely thank everyone for your
show of support for keeping Baptista’s as one team, and for
_________________________
particularly here, where his recollections were not strong and changed during the course of his
testimony, I credit Mang’s testimony that this conversation occurred during the course of the
union campaign, and during a conversation in which Blanquel and Sparks were presenting
reasons to Mang why he should oppose the Union.
43 I largely credit Blanquel as to his seeking suggestions from employees under his
supervision, and that his questions and the suggestions principally dealt with production
processes. This testimony is consistent with Mang’s testimony.
44 Karboski credibly testified that she attended meetings where Brett Lepak asked all
employees for suggestions about how things could operate better. No dates were established
for these meetings, except that it/they occurred after September 2004.

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believing that your futures are brighter by working together to
become a unified team…

We also appreciate the “wake-up call” presented by this union
organizing drive and this close election result. We know that
much work remains to bring everyone together under one
banner…

Because of “challenged ballots,” the election is not yet final…

We acknowledge that we should have done a better job of
communicating the need for changes that took place, as well as
providing opportunities for employees to actively participate in
effecting those changes. We realize that the greatest success
comes when there is effective, continuous communication, sharing
of information, and employee participation. You’ve all helped us
start on this path and we commit that this will be our environment
going forward.

Consultant Susan Wehrley

Susan Wehrley is a self-employed organizational and employee development
consultant. Following a discussion between Mayer and Gardetto in January, the Respondent
retained Wehrley. The record does not delineate the exact date Wehrley was retained by the
Respondent. The Respondent had previous utilized Wehrley’s services in 2000 and 2001 to
work with the Respondent’s management in improving communication skills and blending
management styles and managers’ personalities. This work principally involved the top
managers of the Respondent, including Gardetto and vice-presidents. On February 10,
Wehrley sent an e-mail to Howe, with copies to Gardetto and Mayer, confirming a meeting on
Saturday, February 12 and stating, “Also, if there is a decision made ahead of time on which
way you are choosing to go with the union, be sure to let me know ASAP, as that will change
what I focus on in my session.”

Wehrley met on February 12 with the Respondent’s managers, including Gardetto,
Mayer, Howe, Olson, Lepak, Sertich, Bequest, Ken Thompson, Blanquel, Sparks, Jon Becker,
Amy Roebuck, and Marlenea Jackson. Following the meeting, Mayer sent an e-mail message
to all of the attendees, with a copy to Wehrley, which contained the following in pertinent part:

Folks, thanks for spending your Saturday morning in our meeting
today…

As we go forward in this effort, the best thing you can do is to just
be yourself, the person that people know. If you worry too much
about the legal aspects, or try to express your feelings in the legal
words and phrases used by our attorneys, it will be clear to the
people on the shop floor you’re not being yourself and they will not
accept you as sincere…

By being yourself, keeping it simple, and following the rules on the
TIPS card you’ll satisfy the legal side of things while having great
communications with your people offering facts and opinions that
will help them realize how the Teamsters are not in their interest.

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We’ll all talk frequently as we go forward. I’ll be glad to answer
your questions, help you think-through how to handle situations
you may encounter, and we’ll overcome any minor mistakes we
make which I’m sure will be few and far between…

Wehrley met three times in February with the Respondent’s top management, including
Gardetto, Howe, Mayer, and CFO Jon Becker. At these meeting Wehrley was informed of the
existence of the Union’s organizing drive, that management was concerned about the drive, that
management wanted to know the cause of employees wanting a union, and management
desired not to have a union. Wehrley testified, “…it was clear that they didn’t want a union, and
there was concern about why that there was an attempt, in the beginning, to even have a union,
what was the cause of the employees wanting a union.” In tailoring her work for the
Respondent, discussed below, Wehrley designed her study, in part, to find out the root cause
for disgruntled employees. Wehrley testified, “It wasn’t necessarily tied exactly to the union, but
there was a concern about why are people disgruntled.”45

Wehrley also conducted workshops with plant supervisors. During these workshops,
she talked about communication, leadership, and teamwork, and “we talked about how might
they do that while the union was going on….” The subject of the Union came up in more than
one of these workshops.46

Wehrley also met with plant employees on three occasions, the first being on May 10,
almost 7 weeks after the election. Attendance at the meetings was mandatory for the plant
employees. At the first meeting, Mayer introduced Wehrley to the assembled plant employees,
and then left the meeting. Wehrley told the employees that Gardetto had asked her to help
improve communications between Baptista’s and its employees, and to help the long time
Baptista’s employees merge with the newer employees hired from AIPC (the “pasta people”).47
Wehrley distributed a 9-page questionnaire48 to the employees, asked them to complete and
return the questionnaires and promising them a $10 gift certificate at a local restaurant in return,
and assured them the questionnaires would be kept confidential.49

45 My findings here are based on exhibits, and the testimony of Wehrley, which I have
credited. Although displaying some of the normal problems associated with trying to recall
events that occurred some time ago, Wehrley impressed me by her demeanor and answers as
making every effort to honestly answer the questions asked of her on direct and cross-
examination. While she maintained a longtime business relationship with the Respondent, she
did not demonstrate any bias towards the Respondent’s position in her testimony. On
occasions when her memory failed, she was able to recall events upon being shown exhibits
which memorialized the events.
46 Again, this finding based on the credited testimony of Wehrley.
47 My findings as to the meeting are based on the credited, nonconflicting, testimony of
Wehrley, Karboski, Mang, Brzezinski, and Meyer.
48 It appears from the record that completing the surveys was voluntary in that an incentive
gift certificate was offered for doing so. Karboski testified on cross-examination as follows: “Q.
She told you it would be strictly voluntary? A. I don’t know if it was voluntary. Q. It was not
voluntary to come to the meetings but it was voluntary to complete the assessment. Right? A.
Yes.”
49 Karboski, on two occasions, testified that Wehrley told the employees that the
questionnaires would be kept confidential. She also testified that Wehrley said that the
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Wehrley again met with plant employees on May 18. Prior to this meeting, Mayer posted
a memo to all employees announcing the May 18 meeting. The memo contained the following:
“Please make sure your surveys are completed as best you can and sealed in the envelopes
that Susan provided. If you’ve lost the envelope, please put your completed survey in another
envelope so that it remains confidential. Thanks, Susan looks forward to meeting with everyone
again, and she’ll have $10 Culver’s Restaurant gift cards as a ‘thank you’ for everyone who
returns a survey to her.” Wehrley conducted this second meeting, collected the completed
questionnaires, and passed out the Culver gift cards. Wehrley conducted a third meeting in late
May with the plant employees during which she explained her composite summary of the
questionnaires.50

The survey, attachment 4 to the complaint, covers a wide range of issues concerning
employee attitudes about their jobs and employment with the Respondent, including some
directly related to their terms and conditions of employment. Questions which arguably
impacted on terms and conditions of employment included: How would you rate your overall
satisfaction with the direction of the company? Name 1–3 changes you feel have been most
negative (positive) in the last year and why? What do you need so that you can trust your
manager more? What is Baptista’s greatest weakness (strength)? What is the greatest threat
to Baptista’s? The survey also asks employees to rank the Respondent on a 1–5 scale in areas
including: “There is recognition and incentives for a job well done.” “My pay is competitive with
jobs at other companies that involve similar work.” “Vacation and holidays.” “Benefits.” The
survey asks: “What suggestions do you have for recognition programs and incentive
programs?” “List 3 instances in the past 6 months where [you] felt the Company went beyond
your expectations. In other words, what did the Company do for the employees to go the extra
mile?” “What would you like the Company to do to go the extra mile for you?”

After the meetings with the plant employees, Wehrley continued to meet and consult
with the Respondent’s management from August through November in a “strategic planning
process.” There were four or five of these meetings, and the Union continued to be a topic “on
and off.” The main topic at these meetings was a strategic plan for the Respondent, which was
broken up into “people,” “productivity,” and “profit.” During these discussions, while the Union
was not the focus, Gardetto brought up the subject of the union organizational campaign, that it
was a “symptom,” that it was something that can’t be ignored, and it was “something going on
that we have to address.”51

Providing Benefits

Employee-of-the-Year Award and Prize

On March 28, 5 days after the election, the Respondent awarded an “employee-of-the-
year” prize, consisting of a $500 gift Sears gift certificate and a plaque, to plant employee John
Rautio. The Respondent had never previously awarded an employee-of-the-year prize,
although both in 2005, and in past years it has awarded perfect attendance prizes both for the
_________________________
“assessment” would be shown to management. The assessment is the document Wehrely
prepared from the information garnered from the questionnaires.
50 The record does not contain much detail as to this meeting. Only Wehrley testified as to
this third meeting, some of the other witnesses only remembering two meetings. Wehrley, as
discussed earlier, is a reliable witness, and I credit her recollection of a third meeting.
51 From Wehrley’s credited testimony.

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current year and consecutive years. The single year perfect attendance award has been a $75
restaurant certificate and a plaque, each year since 2001. The consecutive year’s perfect
attendance award has been a $100 savings bond for each year over one, and a plaque, each
year since 2001. Mayer testified that the Respondent created the employee-of-the-year award
because “2004 was a year of significant change and we had an employee who really
distinguished himself for all the different things he did.”

Baseball Game Outing and Jacket

In late April, the Respondent provided its plant employees with free jackets with
Baptista’s logo, in conjunction with a complimentary catered outing to a Milwaukee Brewers
baseball game. Respondent gave plant employees their choice of jacket style, including zip-up
windbreakers and pullover fleece, and color. The jackets were accompanied with a memo from
Gardetto and Howe which stated, “As we move Baptista’s forward it is important that we do so
as one unified team.” Respondent requested employees to wear their new jackets to the
Brewers outing. Respondent purchased the jackets at a cost of $2,445.38.

The Respondent, in early April,52 invited its plant employees, their children, and a guest,
to be its guests at a Milwaukee Brewers baseball game on May 1. The invitational memo
stated, “We have a block of tickets reserved for Baptista’s team members . . . spouses or
significant-others, and kids. Baptista’s is providing the food and game tickets, your only cost will
be for parking.”

The baseball outing included tickets to the game, and a buffet meal in the stadium’s
“Dew Deck,” a private section. The buffet included various main dishes, salads, cakes, soft
drinks, and two alcoholic beverages per ticket. Gardetto’s, the Respondent’s de facto
predecessor, had sponsored numerous events at the Brewers’ ballpark, but the 2005 event was
the first one sponsored by the Respondent. Gardetto testified that the Respondent had not
previously sponsored a Brewers’ event because, “. . . we weren’t making money.” Gardetto also
testified that such an outing is “a very expensive event to hold and we didn’t have the money.”
At the time of the organizational campaign, the Respondent was not making a profit and was not
consistently profitable until the first part of 2006.53

In the past, prior to 2005, the Respondent has sponsored other social events for
employees and given free clothing to employees. In October 1999, the Respondent sponsored
a barbeque to celebrate the new business and the fact that there was no lost time due to
employee injuries for a year. Mayer cooked steaks and baked potatoes for all the employees.
In December 1999, the Respondent sponsored an all-employee meeting and dinner, to “talk
about what was going on in the business,” and conducted a drawing for six tickets to a Green
Bay Packers football game.

In March 2000, the Respondent sponsored a “chili cook-off,” in which Mayer prepared
his chili for the employees, and employees were requested to bring in to work their own chili or
side dishes. There were no prizes for the chili event. In January 2000, the Respondent
sponsored a “baby guessing contest” in which employees tried to match baby photos to the
adult, with a restaurant certificate prize. In April 2000, the Respondent sponsored an all-
employee meeting with barbeque, at which the Respondent provided “brats and buns,” and
employees were requested to bring in other dishes and desserts. On October 29, 2000, the

52 The memo announcing the outing requested that employees sign up no later than April 7.
53 Howe’s credited and uncontradicted testimony.

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Respondent sponsored a “First Anniversary Party and Packer’s Blast” held in a park, at which
employees were invited to bring side dishes and watch a Packers game on television while the
Respondent provided a pig roast and soft drinks. Also, apparently in 2000, the Respondent
sponsored a restaurant-catered lunch at the plant to thank employees for shifting their work
schedule prior to the Thanksgiving holiday.

Most years the Respondent has provided turkeys to its employees, at a cost to the
Respondent of about $10 to $15 per turkey, in conjunction with its annual holiday luncheon for
employees and has also provided “Fiesta Italiana” tickets to employees during the summer,
which tickets the Respondent obtained at no cost to itself, but would have cost $10 to purchase.
On June 27, 2002, the Respondent sponsored an all-employee meeting and barbeque at which
the Respondent provided most of the food.54 On August 12, 2002, the Respondent sponsored
a third anniversary cookout, at which the Respondent provided picnic fare, and invited
employees to bring food to share.

The Respondent has also previously purchased logo clothing for its employees. In
2000, the Respondent provided Baptista’s logo button-down khaki shirt with “Founding Team
Member” printed on the cuff to employees employed at the inception of the Respondent, and
green logo sweatshirts to employees in August 2002. Respondent purchased the “Founding
Team Member” shirts at a cost of $1,377.40.

Two Dinners for Sanitation and Quality Control Employees

I find, and the parties stipulated, that in June 2005, Marlenea Jackson, the Respondent’s
manager of quality assurance and sanitation, invited all of the employees of those departments,
along with a guest, to a complimentary dinner at Famous Dave’s restaurant for the stated
purpose of thanking employees for a successful sanitation audit by the AIB (American Institute
of Baking). I further find, and the parties stipulated, that 2 or 3 weeks later,55 Howe and
Gardetto took the entire same group, and Jackson, to Ingrilli’s restaurant for another
complimentary dinner, for the stated purpose of thanking employees for a successful audit by
the AIB. The price range for dinners at Famous Dave’s is $10 to $20. At Ingrilli’s, the price
range is $15 to $25, and higher.56 The Ingrilli’s dinner included alcoholic drinks, the Famous
Dave’s dinner did not. Jackson testified that she took out the entire quality assurance and
sanitation department for dinner because she was pleased with the relatively high score the
Respondent received from the AIB audit and to reward the employees of those departments for
their hard work which she believed led to the audit score.

I credit Marlenea Jackson’s uncontradicted testimony as to the background of the AIB
inspection as follows: the Respondent hired Jackson as quality assurance and safety manager
in late October 2004. Upon employment, Jackson determined that the facility had not been
properly maintained and that much work needed to be performed so that the Respondent’s
facility could pass the AIB audit. The AIB auditor inspects for cleanliness, equipment
maintenance, cleaning cycles, and employee sanitation, among other items. Preparation for the
audit began in December 2004 and continued up until the actual audit the last week of May, and
included the usage of eight or nine temporary employees the weekend prior to the audit. The
Respondent scored 870 out of 1,000 on the audit, an “excellent” rating with “superior” being the

54 Mayer testified that two to four times a year the Respondent has some type of barbeque
or employee meal.
55 Jackson testified that the second dinner was two or three weeks after the first dinner.
56 Uncontradicted and credited testimony of Kathy Mankin.

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highest, and a score that Jackson characterized as a “B”. There is no evidence as to when the
Respondent received the AIB inspection score.

No-Solicitation/No-Distribution Rule Posting

There is little factual dispute between the parties as to the Respondent’s posting of its
no-solicitation/no-distribution rule. On February 21, the Respondent posted the rule on a glass-
enclosed bulletin board in the employee lunch room. No rule had been previously posted in the
plant, and the Respondent posted the rule solely in response to the Union’s organizing
campaign.57 Respondent had an existing rule published in its employee handbook, but not
posted, which prohibited solicitations during working time, not including breaks, lunch, and
before or after scheduled work, and prohibited the distribution of literature in working areas,
which did not include the lunchroom or parking lot.

The rule posted by the Respondent on February 21 restated the existing rule and added
the following: “Please be advised that employees who violate this policy will be subject to
disciplinary action, up to and including discharge from employment.” The posting also directed
employees to bring any questions concerning the policy to management or to Mayer. The no-
solicitation rule contained in the handbook did not include the disciplinary language posted in
the notice. Little evidence was presented as to the enforcement or nonenforcement of the
February 21 posting.

In a section of the employee handbook separate from the no-solicitation rule, the
Respondent sets forth a description of its disciplinary procedures and penalties which, in
general, sets forth a five-step system of progressive discipline including discharge for violations
of the handbook’s guidelines, but also states that, “There may also be instances where
disciplinary action will not be progressive, depending on the severity and circumstances of the
situation.” The disciplinary section of the handbook also states as follows: “Baptista’s will
attempt to administer discipline fairly based on the circumstances. Because it is impossible to
list every conceivable infraction, these guidelines may not be all-encompassing and can be
amended by Management within its sole discretion.” The exact language of the addition to the
no-solicitation rule does not appear in the handbook.

Although the complaint does not allege disparate enforcement, and counsels for the
General Counsel acknowledge that the posted and preexisting rule is not facially invalid, the rule
appears not to have been particularly enforced either before or after its posting in the
lunchroom, either prior to or during the organizational campaign. Thus, sometime after the
Union’s organizing drive began, supervisor Jackson solicited employee Cassel for a fund raiser
for her daughter, and handed her a brochure in the lab area. Jackson handed Cassel a
brochure, pointed out an item to Cassel that she might like, told her to show the brochure to
other lab techs, and if they wanted to buy something to give her the money. Cassel purchased
two items.58 This solicitation occurred during work time. Jackson also engaged in a similar
solicitation of employee Mankin in the lab on work time, before the organizing drive.59 On a
number of occasions, prior to the Union’s organizing drive, Karboski observed solicitation for the
sales of various products including home interior products and Avon products through the usage
of catalogs left in the lunchroom. Additionally, about 3 or 4 years prior to the posting, Karboski

57 Mayer so testified as to the reason for the posting.
58 Uncontradicted and credited testimony of Cassel.
59 Uncontradicted and credited testimony of Mankin.

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sold raffle tickets in the lunchroom to other employees and to at least one supervisor.60 Further,
the parties stipulated that prior to the date the no-solicitation rule was posted in the lunchroom,
“on various occasions employees engaged in the sale of commercial items, including for
example for civic and charitable groups, in various non-production areas of the plant including
the office area, without objection by the Respondent.”

Discharge of Kathy Mankin

QA tech (quality assurance technician) Kathy Mankin was initially hired by the
Respondent in about 1999. Prior to the permanent layoffs of February 2, she had worked as a
packager (packaging department employee), but had also filled in as a BPO, and as QA tech
“once in a while.” Mankin was permanently laid off along with a number of other employees on
February 2. When she was laid off, Mayer told her (and two other employees who were with her
at the time) that “it wasn’t a reflection on our work, that the company just needed to cut back.”61
The day after she was laid off, Mayer called Mankin and offered her a position as a QA tech.
Mankin began work as a QA tech for the Respondent a few days later.

The Respondent discharged Mankin on August 7. During the months prior to the
discharge, the Respondent employed three QA techs, Mankin, Sharon Cassel, and Judy Rautio,
in its quality assurance department, all of whom reported to department supervisor Marlenea
Jackson. Mankin was an avid supporter of the Union, and Respondent was admittedly aware of
such support. The Union’s letters of February 7 and 25 to the Respondent named Mankin as a
member of the Union’s organizing committee. Mayer received a copy of the Union’s March 23
“Vote Yes” campaign letter containing the signatures of 14 employees, including Mankin.
Jackson testified that she observed Mankin wearing a union button on her coat “every day, so I
naturally assumed that she was for the Union.”

The Respondent concedes in its brief, that “Mankin was the only QA tech whom Ms.
Jackson believed to be a Union supporter.” Indeed, fellow QA tech Cassel told Jackson that
Cassel was not for the Union, “she did not want the Union at Baptista’s.”62 There is no record
evidence as to the union leanings of the third QA tech, Rautio, or the Respondent’s perceptions
of her leanings, except that she is not named as a member of the Union’s organizing committee
in the Union’s letters to the Respondent.

Beginning in June, Mankin, Cassel, and Rautio experienced a number of performance
related problems.63 About June 22, a customer of the Respondent rejected a shipment of 2,710
cases of butter flavored pretzel spindles that had been produced on June 20 and 21, because of
what the customer deemed unacceptable flavor. The rejection cost the Respondent over
$12,000 in lost revenue. Jackson investigated and discovered that none of the three QA techs
had documented sensory tests which they were required to perform every 4 hours. Jackson
disciplined all three QA techs, handing Mankin and Rautio, both of whom had no prior discipline,
a first written warning, and giving Cassel, who had received a written warning a few months
earlier, a second written warning. In her testimony, Mankin claimed she actually had performed
the tests, but had failed to document them.

60 Uncontradicted and credited testimony of Karboski.
61 Uncontradicted and credited testimony of Mankin.
62 Uncontradicted and credited testimony of Jackson.
63 Conceded by counsels for the General Counsel in their brief.

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On July 26, Mankin received a performance counseling from Jackson and Mayer.
During the counseling, Jackson reviewed perceived shortcomings in Mankin’s job performance,
including that she was spending too much time in the lab and needed to spend more time on the
production floor. During the meeting, Mayer told Mankin that he had known her for many years
and had always thought of her as an intelligent person who cares about job performance. Both
Mayer and Jackson asked if there was something they could to help her do her job better.
Mankin responded that she didn’t know, and she apologized for letting other people down and
for not doing her job faster.64

Three days later, on July 29, Mankin received a second written warning for
“unacceptable performance.” This discipline resulted from Mankin’s admitted failure to perform
sensory tests as per a schedule that Jackson had imposed on the QA department. In her
testimony, Mankin conceded that she had not performed the tests, and that coworker Judy
Rautio had advised her to perform the tests, but placed the blame as follows: on a coworker
who allegedly told Mankin that if Mankin didn’t finish the tests, the coworker would; on
coworkers who worked other shifts and could have performed the tests but didn’t; on Jackson
who allegedly did not give her a schedule of “things to do that evening;” and that it wasn’t really
necessary to perform the sensory tests according to the schedule because “the sensories had
been collected over a period of days, they hadn’t been done every day.” Mankin also testified
that even though she did not perform the tests on Thursday as per the schedule, she performed
them her next day of work, Monday, and there was no production in the plant between Thursday
and Monday.

On August 4,65 Mankin received a final written warning for “unacceptable performance,”
involving the failure of all three QA techs, Mankin, Rautio, and Cassel, to correctly weigh
samples of a product in a production run. On August 5, Mankin signed the warning, which
contained the following: “I, Kathy S. Mankin, have received this Final Warning for Unacceptable
Performance. I understand that my job is in jeopardy. I understand that any future instance of
Unacceptable Performance of any sort will result in my discharge from employment with
Baptista’s Bakery, Inc. (capitalization in original). When Jackson handed the written warning to
Mankin, she told her “that this was a final written warning and that the next step for her would be
out the door . . .”66

The incident resulting in Mankin’s final warning began on the August 4 shift. As part of
their job duties, QA techs were supposed to weigh sample bags of “Houdini Smoky Mozzarella”
during their production run, to ensure that the bags were between 3 and 3.125 ounces. Mankin,
admittedly, simply compared the weight of the sample bag to the range of bags weighed during
the prior shift, rather than to the guidelines for the weight. Inasmuch as the prior shift’s bags
were underweight, so were the bags on Mankin’s shift, which resulted in the production of
55,000 bags of the product which were underweight and had to be repackaged. Thus, all three
QA techs had documented the wrong weights, and all three were disciplined. Cassel, further
along in the Respondent’s progressive discipline system, was discharged. Rautio received a
second written warning. In her testimony, Mankin blamed the weighing problem on her difficulty

64 My findings as to this counseling are based on a record exhibit, and the noncontradictory
testimony of Mankin, Jackson, and Mayer.
65 The shift overlapped from August 4 to August 5. So, while the shift began on August 4, it
ended on August 5.
66 Based on Jackson’s credited testimony. During her own testimony, Mankin did not
mention this part of the discussion, but said nothing to contradict it. Mankin also testified that
Meyer was present when Jackson presented the final written warning to her.

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converting grams to ounces. Thus, instead of doing the conversion, she simply checked to see
whether the weight range during her shift was the same as the range during the prior shift. It
turned out both shifts were wrong.

Earlier on the same shift beginning on August 4, Jackson had instructed Mankin
explicitly that she was to perform certain tasks before the end of her shift. Mankin testified,
without contradiction, that Jackson told her to “take the two products that were on hold and take
samples out of each box of the products and to look at them and put them on the side for her for
the next day to look at.” Jackson told Mankin that “they felt that there was probably some
burned product in some of them and they may not be acceptable to send out.”67 At Mankin’s
request, Jackson wrote a note to Jackson detailing the tasks.

At the end of her shift, when she was called in to Mayer’s office to receive her final
written warning, Mankin had started, but not completed, the tasks assigned to her earlier by
Jackson. As a result of receiving the final written warning, Mankin became upset and left the
plant, leaving no notes to the effect that she had not finished the assigned tasks, or any
explanation therefor. Further, Mankin did not tell Jackson or Meyer that the assigned tasks
were not completed, when meeting with them to receive the final written warning, nor note the
failure in the departmental logbook. Mankin testified, “I was very shaken, and I didn’t even think
to tell them that I hadn’t finished it.”

Later on August 5, after going home, Mankin’s husband took her to a hospital, as she
was extremely upset from the occurrences earlier at work. Mankin’s husband called the
Respondent and left messages for Jackson and Mayer to the effect that she would not be in to
work because she was very upset and being taken to the hospital. Mankin testified that at the
hospital she was diagnosed as having an “anxiety attack.”

The Respondent discharged Mankin on August 7. The discharge memo referred to
Mankin’s failure to perform the testing duties Jackson had assigned to her on August 4, and
referred to the other written warnings received by Mankin, including the final written warning.
There is no evidence that Mankin’s failure to report to work on or after August 5 played any role
in the discharge decision. The Respondent did not offer Mankin the alternative of a different job
before it discharged her.

Sharon Cassel, a QA tech, was also discharged based on a series of performance-
related disciplinary warnings. At the time of her final warning, before her discharge, Mayer
discussed with Cassel whether she would like to work in sanitation, packaging, or as a fork truck
driver. Cassel testified that Mayer asked “that maybe I would even like some office work.” A
similar discussion occurred during a meeting which Jackson also attended. In his testimony,
Meyer denied that he ever offered Cassel a different position.

In her testimony on direct examination, Cassel was asked if she was offered different
positions within the company. She answered, “Yes,” and testified that it occurred at the time of
her final warning. Counsel for the General Counsel then asked her what positions she was
offered, and Cassel answered in conclusionary fashion as follows: “Sanitation, fork truck driver,
packaging machine operator and then Mr. Mayer asked that maybe I would even like some
office work.” Cassel was not asked what her response to Mayer was, and Cassel did not testify
as to what Meyer’s words were in conveying the alleged offer of another job.

67 Uncontradicted and credited testimony of Mankin.

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Based on Cassel’s testimony, and the denial by Meyer that he offered another job to
Cassel, I find that Mayer did not formally offer Cassel another job, but was simply gauging
Cassel’s reaction as to that possibility. As I have noted elsewhere, the testimonial demeanors
of both Cassel and Mayer were impressive, and they are reliable witnesses. Thus, I credit
Mayer’s testimony that he did not offer Cassel another job, and I credit Cassel’s general
testimony about the conversations, but cannot conclude that an offer was, in fact, made. Cassel
testified that she was offered different positions, but her testimony was just in summary, and did
not contain either the words or the approximate words of the offer. In other words, both the
counsel for the General Counsel, and Cassel, characterized whatever words Mayer used as an
“offer.” But the record does not contain whatever words Mayer used, other than as set forth
above, or evidence other than Cassel’s conclusionary testimony, from which I can find that, in
fact, an “offer” was made or that Mayer wasn’t being truthful in his testimony that he did not
make such an offer.

Prior to the union activity involved herein, on June 26, 2004, Mayer met with Sobiech
concerning alleged shortcomings with Sobiech’s work performance. In Mayer’s memo
memorializing the meeting with Sobiech, Mayer states as follows: “I suggested to Sobiech that
he consider a move to Packaging now, telling him that even though this would mean a wage
reduction, he would at least be working in a job in which he might demonstrate better
performance and not risk losing his job if his errors continue. Sobiech told me he was not
interested in moving to Packaging.” As with Cassel, I cannot conclude that Mayer’s comment
to Sobiech constituted an offer of a job in a different department.

Discipline of Donna McCall

Donna McCall was hired by the Respondent in 2002 and remained employed until
September 18, 2005. She took an extended medical leave from January 23 to April 27. During
her approximately first 2 years with the Respondent, McCall was employed as a sanitation
worker. During the balance of her time with the Respondent, McCall was employed as a BPO.
As is conceded by the Respondent in its brief, the Respondent learned McCall was active in the
Union when it received the Union’s February 7 letter naming her, and others, as members of the
Union’s organizing committee. McCall was also named as a member of the Union’s organizing
committee in the Union’s second letter to the Respondent, and her signature appeared in the
“Vote Yes” letter.

On July 27, the Respondent issued a final written warning to McCall. The warning
memo was entitled “Final Warning—Unacceptable Conduct: Insubordination and Racially
Offensive Remarks.” What follows are my factual findings as to the incident that led to the
discipline, based on the largely noncontradictory testimony as to the incident of McCall and
Blanquel.

On July 18, Blanquel, the Respondent’s shift manager, became aware that the
Respondent was short-handed in the packaging room. Blanquel called Raul Lara, lead person
in the mixing room, and asked Lara to send the “free person” to the packaging room.68 Lara
responded that McCall “was just cleaning the oil room.” Blanquel instructed Lara to send
McCall to the packaging room. Blanquel testified that boxes needed to be made in the
packaging room because the production line couldn’t be stopped, and if there were no boxes,
product could be wasted or thrown away, and that it was, thus, an emergency.

68 Blanquel testified that there was usually one free person in the mixing room, apparently
an employee without immediately pressing duties.

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At the time Blanquel called Lara, McCall was cleaning a spill in the oil room. Lara went
to the oil room and told McCall that she “had to go to packaging.” McCall responded, “You got
to be kidding me.” Lara told her that he wasn’t kidding her. McCall said, “Let me finish what I
started [cleaning the spill].” Lara told her she had to go right then. McCall responded that she
thought “it was bullshit, that there were other BPO’s that he could have took and I feel like I’m
being treated like a nigger69 around here.” McCall eventually threw down the squeegee she
had been using and walked towards packaging.

At this point, after waiting for about 15–20 minutes, when nobody from the mixing room
appeared in the packaging department, Blanquel walked towards the mixing room to see what
the problem was. Blanquel arrived in time to see Lara and McCall speaking, and McCall throw
the squeegee. Lara told Blanquel what McCall had said to him. Blanquel and McCall then
walked through the mixing room to get to the packaging room. McCall stopped along the way
and spoke to another employee.70 Blanquel told her, “I told you I wanted you to go to
packaging.” McCall told Blanquel, “You always treat me like a [“N-word”].” Blanquel asked her,
“Why did you even say that. If you didn’t want to go I can send somebody else or something.
There is no reason for you to treat me this way.” McCall then walked to the packaging room
and began performing the requested work.

A few hours later, McCall walked up to Blanquel and said, “I’m really—I was so hot. I
was so angry about the situation. I apologize for what I say.” I didn’t mean the “N-word”71 like
you think I meant the word.” Blanquel responded, “Well, it was offensive for me because I’m a
minority too, you know. I’m Mexican.” McCall responded, “Well, I’m an Indian.”

Nine days later, on July 27, Blanquel, accompanied by supervisor Jerry Bequest, told
Human Resources Vice-President Mayer of the incident involving McCall, Lara, and Blanquel.
Blanquel told Mayer that McCall had made a racially offensive remark to him and Lara.
Blanquel described the incident to Mayer.72 Mayer asked Blanquel questions about the
incident.73 Mayer told Blanquel and Bequest that he thought a disciplinary action was
appropriate for something “so offensive.” Blanquel and Bequest agreed. Mayer asked why they
waited 9 days to tell Mayer of the incident. Blanquel responded that he had to think about it
because it was something that was upsetting, but he also wanted to make sure he wasn’t
reacting because of that upset. Mayer told Blanquel that he should have told Mayer of the
incident when it happened. Mayer, Blanquel, and Bequest agreed to a disciplinary final
warning, but Mayer decided to also speak to Lara before imposing the discipline.

That same day, Mayer spoke to Lara about the incident. Lara told Mayer that Blanquel
had asked him to send McCall from the mixing room down to the packaging room, and that

69 In order to avoid burdening this decision with repeated use of the slur, I have chosen to
use the euphemism “N-word” hereafter.
70 McCall did not remember talking to an employee along the way. I credit Blanquel, who
demonstrated good recall as to this incident, but there is no substantive significance to whether
or not McCall paused to speak to an employee.
71 It’s not clear from the record if McCall here, used the actual slur “nigger,” or used the
euphemism, “the N-word.” I had asked the witnesses not to burden the record by continuously
using the slur after the first use, and it’s unclear whether Blanquel, in his testimony, was simply
following my instructions or accurately quoting McCall.
72 The record does not contain the words Blanquel used to describe the incident.
73 The record does not detail the questions Mayer asked.

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when he told her to go to the packaging room she said, “Why do you always treat me like an ‘N-
word?’” Lara also reported that McCall threw down the squeegee. Lara told Mayer that he was
bothered by the incident, that he had never treated McCall with anything but respect, and that
he couldn’t figure out why she would say something like that to him.

After speaking to Lara, Mayer asked Blanquel and Bequest to bring McCall to his office.
When they arrived at his office, Mayer told McCall what he had been told about the incident and
what she was reported to have said. Mayer asked her if she, in fact, had said the words she
was accused of. McCall admitted she said the words. Mayer told her it was inappropriate.
McCall responded that she didn’t mean it like it sounded. McCall said she was being taken to a
different area several times and felt like she was being treated like an [“N-word”]. Mayer told
her that the words were inappropriate regardless of the intention, that when she utters a remark
like that, the people she says the words to don’t know her intentions, that it was a violation of
the Respondent’s rules, that there was never a circumstance that it would be tolerated, and that
type of thing could be a dischargeable offense. Mayer told McCall that she was receiving a
disciplinary warning, and McCall then apologized to everybody present. Mayer told her that if it
ever happened again she would lose her employment. Finally, Mayer told her that her objection
to going to another job was unacceptable and bordered on insubordination.74

While admitting that she used the “N-word” as described above, McCall testified that
Blanquel had also used the “N-word” on at least two prior occasions in conversations with
McCall at work. McCall testified, that a few years earlier, Blanquel used the “N-word” in
referring to a supervisor that Respondent was about to hire. McCall also testified that Blanquel
used the “N-word” in early July, in the presence of lead packaging machine operator Mike
Stanford, and that she was “pretty sure Greg was there.” The reference to “Greg” is apparently
a reference to Gregory Glyzewski, who was, at the time, employed by the Respondent as a
BPO (baking process operator). According to McCall, “. . . he kept calling her the “N-word” over
and over.” McCall testified that Blanquel’s alleged use of the slur was directed at Jackson, and
that the conversation occurred by the picnic tables outside the plant. Stanford testified that he
never heard Blanquel use the “N- word.” Blanquel testified that he never used the “N-word” at
work, that he never used the “N- word” in reference to Jackson, that he never heard anybody
else use the “N-word” in reference to Jackson, and that the only person he ever heard use the
“N- word” at work was McCall.

Gregory Glyzewski, who voluntarily left the Respondent’s employ in August, and who
was employed as a BPO and was a member of the Union’s organizing committee during the
organizational campaign, testified he was present during a conversation at the picnic table
outside the plant with himself, Blanquel, and Stanford in July 2005. Glyzewski testified only that
the three of them were present, and did not mention McCall. Glyzewski testified that during the
conversation, Stanford said, “. . . um, something to the effect of, uh—that Marlenea is nothing
but a big, fat ‘N-word.’” Glyzewski further testified that after Stanford spoke, Blanquel “. . . kinda
chuckled.” Stanford, who denied that he ever heard Blanquel use the “N-word,” also denied that
he ever used the word during his employment with the Respondent, denied that he ever used
the word in Blanquel’s presence, and denied that he ever used the word to describe Jackson.
There is no evidence that Blanquel or Stanford was ever disciplined in connection with using the
“N-word.”

74 Most of my finding as to this discussion is based on the credited testimony of Mayer.
McCall also testified as to this conversation, but her testimony was not as detailed as Mayer’s.
Their testimony was not inconsistent on any significant detail of the conversation.

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Based upon the above discussion, my assessments of the relevant witnesses, and the
weight of the evidence, I cannot conclude that either Blanquel used the “N-word” at work or that
Stanford used the word in Blanquel’s presence. All of the witnesses, to some extent, had a
vested interest in their testimony, as Jackson and Stanford are current employees, Glyzewski
was a former employee but an active supporter of the Union during his tenure, and McCall
stands to have discipline removed from her record should the General Counsel be successful in
this litigation.

Significantly,75 Glyzewski’s testimony, similar in some respects, differed from McCall’s in
two key aspects; that is, that McCall places herself at the Blanquel/Stanford conversation, while
Glyzewski testified that only he, Blanquel, and Stanford were present, and Glyzewski testified
that Stanford used the slur in Blanquel’s presence while McCall testified that Blanquel used the
slur in Stanford’s presence. While there could have been two different conversations, certain
details of their testimony, including the approximate date of the conversation and its location,
make it appear that they were testifying as to the same conversation.76 Thus, McCall testified
that the conversation she heard occurred 2 or 3 weeks before her July 27 discipline. Glyzewski
testified that the conversation he heard occurred in July. Both testified that the conversation
they heard occurred at the picnic tables outside the plant. Both testified that Stanford was
present. Both testified that Jackson was the subject of the slur.

Further, McCall admitted that in the investigatory affidavit she gave to the Board during
the investigation, she never mentioned that she had heard Blanquel use the “N-word” in the past
at work, and at no step of the disciplinary procedure did McCall defend herself by alleging that
Blanquel had used the same slur. Based upon the similarities, I find that McCall and Glyzewski
were testifying to the same conversation. Based on the significant inconsistencies in their
testimony and McCall’s failure to mention in her affidavit that she had heard Blanquel use the
slur at work, and because Blanquel’s demeanor was relatively more impressive, I find his
testimony here more reliable than that of McCall or Glyzewski. McCall and Glyzewski were not
unimpressive witnesses in demeanor, but the key inconsistencies in their testimony lends
significant doubt to their credibility.

ANALYSIS AND CONCLUSIONS

Preelection Alleged 8(a)(1) Actions: Solicitation of Grievances and/or Promises of Benefits

Counsels for the General Counsel argue that Gardetto, in her speech of February 18,
solicited grievances and promised benefits in violation of Section 8(a)(1). The General
Counsel also maintains that further solicitation of grievances and/or promises of benefits
occurred as follows: the captive audience speech held by Olson and Blanquel, Olson and
Blanquel’s conversation with Mankin and Cassel, the conversation between Gardetto and Mang,
the conversation between Blanquel and Carvalho, and the conversation between Mang, Sparks
and Blanquel.77

75 Significant, because if McCall wasn’t present at this conversation, then her testimony as
to this conversation is not credible, and resultant doubt is thrown on the rest of her testimony.
McCall testified that she was “pretty sure Greg was there.” But the issue as to credibility is not
whether Gregory Glyzewski was present, but whether McCall was present.
76 While McCall, in answering the General Counsel’s questions, does not use Blanquel’s
name in testifying as to who spoke the offending words, the context and sense of her testimony
makes it clear she is speaking of Blanquel.
77 In their brief, counsels for the General Counsel argue that Lepak’s statement in his
Continued

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The Board’s test for interference, restraint, and coercion under Section 8(a)(1) is an
objective one, and depends on “whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of employee rights under the Act.”
American Freightways, Co., 124 NLRB 146, 147 (1959). The Board has long held that, in the
absence of a previous practice of doing so, the solicitation of grievances by an employer during
an organizational campaign violates the Act when the employer promises to remedy those
grievances. See, e.g., Uarco, Inc., 216 NLRB 1, 2 (1974). The solicitation of grievances alone
is not unlawful, but it raises an inference that the employer is promising to remedy the
grievances. Blue Grass Industries, Inc., 287 NLRB 274, fn. 4 (1987).

This inference is particularly compelling when, during a union organizational campaign,
an employer that has not previously had a practice of soliciting employee grievances institutes
such a practice. Amptech, Inc., 342 NLRB 1131, 1136 (2004). While an employer who has
had a past practice and policy of soliciting grievances may continue to do so during an
organizational campaign, an employer cannot rely on past practice if it “significantly alters its
past manner and methods of solicitation during the campaign.” House of Raeford Farms, 308
NLRB 568, 569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert. denied 511 U.S. 1030
(1994).

Gardetto Speech

The General Counsel, in paragraph 8(a) of the complaint, referring to her captive
audience speech, alleged that Gardetto “solicited grievances and made promises of benefits.”
Gardetto’s speech sent a strong, personal, and very emotional message to employees of her
feelings against the Union. In their brief, counsels for the General Counsel concede that, “. . .
not every word that Ms. Gardetto said was unlawful.” The only two passages in her speech that
arguably solicited grievances are as follows: 1. “that she was human and had made mistakes
but wanted employees to come to her so she could fix them, that she was not too proud to hear
what they needed and to make the changes that they needed, that she was going to be more
available in the plant and more conscious and aware of what was going on, and would actively
participate in ensuring that the changes needed would happen”; and 2. that her door was
always open if employees had any questions or concerns.

In her speech, Gardetto made generalized comments about things improving, but also
made specific promises that communication with employees would improve, and “that she was
committed to having Tom Mayer focus on attending to employees’ needs again, and committed
to creating opportunities for collaboration and communication on goals, and celebrating
employee successes.” In his brief, the Respondent’s counsel concedes Gardetto’s comments
about improving communications and her open door invitation to employees for questions and
concerns, but argues that Gardetto did not link her efforts to improve communication to the
outcome of the organizing campaign and that “she did not say that the results of the election
would affect her efforts to improve communication with employees.”
_________________________
captive audience speech, to the effect that Respondent had made mistakes and wanted to do
better, was a solicitation of grievances and promise of benefits, but acknowledge that there was
no such allegation in the Amended Consolidated Complaint introduced at the hearing.
Counsel’s for the General Counsel take the same position as to the nonalleged statement of
Mayer to Carvalho concerning his vacation days. Inasmuch as counsels for the General
Counsel did not move to amend the complaint to add these allegations, I will make no
conclusions of law as to either conversation, but did include them in my factual findings.

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Based upon the above, and my finding of facts, I conclude that in the context of an
emotional personal speech about February 18 from the Respondent’s highest official, geared to
defeating the Union’s organizational attempt, and without evidence that Gardetto’s invitation and
promises were merely a continuation of past policy, her linking of an invitation to employees to
talk to her about any questions and concerns with promises to improve communications, to
have Mayer focus on attending to employees’ needs, and to celebrate employee successes,78
constituted a solicitation of grievances and either a direct or implied promise of remedy, in
violation of Section 8(a)(1). See, for example, Center Service System Division, 345 NLRB No.
45, slip op. at 1–2 (2005). I reject Respondent’s characterization in its brief that Gardetto’s
“commitment to improve communication was nothing more than a commitment to return to the
open communication the Company had enjoyed for most of its existence.” In reality, the brief’s
characterization is a concession that Gardetto’s comment was a promise to change from the
then current policy, back to the policy that had allegedly existed at an earlier time. Further,
while there is evidence that on occasion, lower level supervisors may have asked employees for
suggestions in the past, this is a far different scenario than a speech from the Respondent’s
highest official.

Further, I disagree with the argument in the Respondent’s brief that the Board’s decision
in Curwood, Inc., 339 NLRB 1137, 1139–1140 (2003) stands for the proposition that “open
invitations for employees to present questions or concern is not an unlawful solicitation of
grievances.” In Curwood, the Board weighed the meaning of the following communiqué (in
pertinent part) from the employer to its employees: “If you have questions, I highly encourage
you to write them down and return them in the envelope provided.” As to the passage, the
Board held, “The context of the letter as a whole reasonably suggests that the Respondent was
soliciting questions about the mechanics of the election process and about its own views
concerning unionization.” Thus, rather then setting forth an all-encompassing general rule, the
Board simply ruled that in the context of the entire letter, the quoted passage did not imply a
promise to resolve their grievances. I concluded here to the opposite; that in the context of the
entire speech, Gardetto’s invitation conveyed an implication that grievances raised would be
resolved.

Gardetto Conversation with Mang

The General Counsel alleged in paragraph 8(b) of the complaint that in March, Gardetto
promised an employee “things would get better around the facility.” As found, about 2 weeks
before the election, Gardetto initiated a conversation with Mang in which she told Mang that
“things will be getting better” at the facility and that Respondent “maybe” was going to go back
to offering anniversary awards to employees. Respondent, in its brief, argues that “. . . Gardetto
did not elaborate on what would get better, nor did she make any promises.” I conclude that, in
fact, Gardetto did elaborate on what would get better by implying that the Respondent would
revert to a policy of providing employees with anniversary awards.

I agree with the Respondent’s argument in its brief, citing the Board’s decision in
MacDonald Machinery Co., 335 NLRB 319 (2001), that general, nonspecific, comments about
an employer’s desire to make things better, without more, do not constitute an unlawful promise
in violation of Section 8(a)(1). See also National Micronetics, 277 NLRB 993 (1985), where the

78 As to celebrating employee successes, see also my finding that the Respondent made
good on this promise by its institution of an employee-of-the-year award with concomitant cash
award.

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Board found the statements at issue to be “too vague to rise to the level of illegal promises of
benefits . . .,” and noted that “The statements do not promise that anything in particular will
happen.” Here, however, Gardetto went beyond a general assertion that “things will be getting
better” and coupled those words with a specific reference to reinstituting anniversary awards. I
conclude that such words implied a promise of benefits in violation of Section 8(a)(1). Further,
as noted above, there is no evidence that Gardetto, the Respondent’s highest official, engaged
in such solicitation of employee grievances prior to the organizational campaign. This is not a
continuation of a past practice as, for example, found by the Board in American Red Cross
Missouri-Illinois Blood Services Region, 347 NLRB No. 33 (2006).

Olson and Blanquel Captive Audience Meeting

The General Counsel alleges, in paragraph 10 (a) of the complaint, that Olson and
Blanquel solicited grievances at a meeting. In their brief, counsels for the General Counsel
argue that the following, which they assert occurred at a captive audience meeting, constitutes a
solicitation of a grievance and a promise of a benefit: “He [Olson] said that he and Blanquel
were striving very hard with Lepak to change things around there and make them better.” In my
findings of fact, I found that Olson also told the assembled employees that “the Respondent had
made mistakes but that he, Blanquel, and Lepak were trying to change things and make them
better and treat them fairly like by giving them enough advance warnings of shift changes.”

Based on my findings of fact, and the record as a whole, there is no evidence that Olson
or Blanquel solicited grievances at this meeting, and I conclude that they did not. Olson did
advocate against the Union at his captive audience meetings, and did tell the assembled
employees that the Respondent had made mistakes but that “he, Blanquel, and Lepak were
trying to change things and make them better and treat them fairly like by giving them enough
advance warnings of shift changes.” But the General Counsel does not allege in the complaint
introduced at trial that such constituted an illegal promise of benefit, and there was no motion to
so amend the complaint. I, thus, decline to find such a promise of benefit, and because such
findings would, in any case, be redundant in view of my other conclusions herein.

Olson and Blanquel Conversation with Mankin and Cassel

In paragraph 9(d) of the complaint, the General Counsel alleges that Blanquel solicited
grievances and promised benefits after a meeting. In paragraph 10(b) of the complaint, the
General Counsel alleges that after a meeting, Olson and Blanquel solicited employee
grievances. As found, after a captive audience meeting at which they advocated against the
Union, Olson and Blanquel spoke with employees Mankin and Cassel. Blanquel and Olson told
Mankin and Cassel that they “wanted to make things better,” and asked them if they “had any
ideas on how to improve.” After Olson and Cassel left, Blanquel again asked Mankin if she had
any ideas on how the Respondent could improve and told Mankin that he would take her and a
companion out to dinner and would pay for it so they could discuss any ideas she had. The
General Counsel alleges in complaint paragraph 10(b) that these comments by Olson and
Blanquel were illegal solicitation of employee grievances. The Respondent maintains that
Blanquel was doing nothing different from what he has done over the course of his employment
as a supervisor, that is, solicit suggestions from employees, and cites Wal-Mart Stores, Inc., 339
NLRB 1187 (2003) for the proposition that an employer who has a past policy and practice of
soliciting employees’ grievances may continue such a practice during an organizational
campaign.

I find that Blanquel’s and Olson’s comments to Mankin and Cassel constituted illegal
solicitation of grievances in violation of Section 8(a)(1). The solicitation of grievances was

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accompanied by statements that the Respondent wanted to make things better, and followed a
captive audience meeting at which the employees were urged to oppose the Union.
Additionally, Blanquel even offered to pay for dinner for Cassel and a companion as part of the
solicitation. Respondent’s argument is accurate in that Blanquel had previously solicited
suggestions from employees, but those solicitations were clearly of a different character, in a
different context, and did not involve dinner invitations. As noted, the Board has ruled that an
employer cannot rely on past practice if it “significantly alters its past manner and methods of
solicitation during the campaign.” House of Raeford Farms, supra. The solicitations here were
clearly not geared to work processes, were accompanied by antiunion rhetoric, and included
offers to pay for dinner. Under these circumstances they were not a continuation of past
practice, and were illegal.

Blanquel and Sparks Conversation with Mang

The General Counsel alleges in paragraph 9(a)(v) of the complaint, that shortly before
March 23, Blanquel “solicited grievances and thereafter made changes in response to those
grievances.” I found that about 2 or 3 weeks before the March 23 election, Mang met for about
10 minutes in a supervisor’s office with supervisors Blanquel and Sparks. In the course of a
conversation during which Blanquel and Mang engaged in antiunion rhetoric, Blanquel asked
Mang for suggestions to “make the company better.” Mang responded with a suggestion that
there should be job postings with a sign-up sheet. Subsequent to this conversation, such a
sign-up sheet was posted on the bulletin board in the lunchroom and stayed posted for a week
or two. I also found that on previous occasions, prior to any union activity, Blanquel had
solicited ideas from employees under his supervision, but those solicitations were geared to
production processes. Finally, I found that the Respondent had posted job openings in the past
in 2000, 2002, and sometime in 2004, but not in 2005.

I agree with the Respondent’s argument that as to Blanquel’s solicitation of Mang, there
is insufficient evidence in the record from which I can conclude that Blanquel’s solicitation was a
deviation from past practice. I have found that in the past, before any union organizational
activity, Blanquel solicited suggestions from employees, and put some of those suggestions into
effect. As in the Board’s Wal-Mart, supra, decision, the issue here is whether during the
campaign the Respondent solicited grievances in a manner that was significantly altered from
its past manner and methods. Here, the only difference in Blanquel’s solicitation of grievances
from Mang, from what Blanquel did in the past, was to accompany the solicitation with antiunion
rhetoric, none of which is alleged to violate the Act. There is no evidence in the record as to
whether the Respondent acted quicker to resolve Mang’s grievance than it had in the past to
resolve grievances presented to Blanquel. I, thus, conclude that Blanquel’s solicitation of Mang
was not a significant change from his practice prior to any union organizational activity, and did
not violate the Act.

Other Preelection Alleged 8(a)(1) Violations

Blanquel Conversations with Carvalho and Karboski

The General Counsel alleges in the complaint that the following violations of Section
8(a)(1) were committed by the Respondent’s supervisor Blanquel during the preelection
campaign period, and at trial and in their brief counsels for the General Counsel maintained that
the violations occurred during conversations supervisor Blanquel had with employee Carvalho
as follows: 1) Complaint paragraph 9(a)(i) – shortly before March 23 told an employee that he
would lose his seniority and vacation because if the Union came in, everything would start from
zero; 2) Paragraph 9(a)(iii) –shortly before March 23 told an employee that the union

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organizing campaign was preventing him from receiving increased pay; 3) Paragraph 9(a)(iv) –
shortly before March 23 told an employee that he would receive a benefit by having his vacation
restored; and 4) Paragraph 9(c) – on or about mid-February made threats of plant closure.
Counsels for the General Counsel further maintain in their brief that Respondent violated
Section 8(a)(1) as alleged in complaint paragraph 9(b) by Blanquel’s comments in a
conversation with Karboski.

I found that in mid-February Blanquel told Carvalho that he would lose his vacation and
seniority because if the Union came in everything would start from zero, and the owner would
close down the plant. I further found that about a week to 10 days after the mid-February
conversation, Carvalho asked Blanquel why he wasn’t receiving lead pay, and that Blanquel
responded that “we were in the process of union campaign.” I also found that near the end of
February Carvalho complained to Blanquel that he had received remuneration for 2 days of pay
in lieu of vacation when he had not requested such, that Blanquel had responded that it was
supposed to be that way, “new administration, new management,” that in mid-March Blanquel
told Carvalho that Carvalho was right that he didn’t have to take the vacation days, and that
Blanquel had Carvalho sign a form to pay the vacation remuneration back to the Respondent
and restore his vacation days.

I further found that about 3 weeks before the election, Blanquel told Karboski that he
wanted to give her his take on the Union; that he didn’t believe in unions, and that it’s not always
the way they say it’s going to be. Blanquel said that in the bargaining, the parties could start
from zero and employees could lose their vacation.

As to “start from zero,” it is well settled that employer statements to employees during an
organizing campaign that bargaining will start from “zero” or from “scratch” are “dangerous
phrases” which carry within them “the seed of a threat that the employer will become punitively
intransigent in the event the union wins the election.” Coach and Equipment Sales Corp., 228
NLRB 440 (1977). “Although such statements are not per se unlawful, the Board will examine
them, in context, to determine whether they ‘effectively threaten employees with the loss of
existing benefits and leave them with the impression that what they may ultimately receive
depends in large measure upon what the union can induce the employer to restore,’ or-
conversely-whether they indicate that any ‘reduction in wages or benefits will occur only as a
result of the normal give and take of collective bargaining’.” Federated Logistics and
Operations, 340 NLRB 255 (2003), quoting Plastronics, Inc., 233 NLRB 155, 156 (1977).
Blanquel’s further threat during the same conversation that the owner would close the plant,
adds further context to the “start from zero” comment, and also violates Section 8(a)(1).

I conclude that Respondent violated Section 8(a)(1), as alleged in complaint paragraph
9(a)(i), when Blanquel told Carvalho in mid-February79 that he would lose his vacation and
seniority if the Union came in because everything would start from zero. Blanquel’s comment is
not simply an explanation as to how collective bargaining works, but a bald threat to Carvalho. I
further conclude that Blanquel’s comment, in the same conversation that the owner would close
down the plant to be a threat in violation of Section 8(a)(1). Evergreen America Corp., 348
NLRB No. 12 (2006). I find no separate violation as alleged in complaint paragraph 9(b).80

79 Carvalho credibly testified that this conversation occurred in mid-February rather than the
March 23 date pleaded in the complaint. The issue was fully litigated and I perceive no
prejudice to the Respondent.
80 Complaint paragraph 9(a)(i) mentioned “seniority and vacation” being threatened.
Complaint paragraph 9(b) mentions only vacation being threatened. I find no violation as
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As to Blanquel’s response to Carvalho’s question about his pay raise, “it is well settled
that, in deciding whether to grant benefits while a representation election is pending, an
employer should act as if no union were in the picture. “Thus, if an employer withholds wage
increases or accrued benefits because of union activities, and so advises employees, it violates
the Act. However, where employees are told expected benefits are to be deferred pending the
outcome of an election in order to avoid the appearance of election interference, the Board will
not find a violation of the Act.” Centre Engineering, Inc., 253 NLRB 419, 421 (1980) (citations
omitted). Here, Blanquel’s response to Carvalho’s question about his pay raise was not made
in the context of an explanation that the pay raise was being withheld to avoid influencing the
outcome of the election. As a result, Carvalho would have been left with the impression that but
for the Union’s campaign he would have received a pay raise. I, thus, conclude that the
Respondent violated Section 8(a)(1) when Blanquel told Carvalho that, in effect, Carvalho was
not receiving his pay raise because of the union campaign.

As to Blanquel’s comments and Respondent’s actions surrounding the remuneration to
Carvalho in lieu of vacation days, even in the context of the other unfair labor practices found
herein, I cannot conclude that such violated Section 8(a)(1) or was caused by anything
more than an apparent mistake and then correction of the mistake, made by Respondent in
respect to its vacation pay policy. Blanquel admitted the mistake in the application of the policy
to Carvalho, and then corrected the mistake by allowing Carvalho to repay the Respondent, and
regain his vacation days. In the absence of contrary evidence, the Respondent’s explanation
makes sense, and I will not find its actions motivated by the organizational campaign based only
on the animus and other unfair labor practices found herein.

Lepak Captive Audience Meeting, and Conversation with Mang

The General Counsel’s complaint alleges as violations of Section 8(a)(1) the following
actions of then Vice-President of Manufacturing Brett Lepak: 1) In paragraph 11(a) that Lepak
during a captive audience meeting in February, “said that the Respondent wanted employees
with good attitudes and that they were trying to move forward”; 2) in paragraph 11(c) that
“shortly before March 23,” Lepak stated in a captive audience meeting that if “the Union won the
election, the Employer could not grow”; and 3) in paragraph 11(b) that in about mid-February
Lepak “told an employee that the Employer was looking for workers that don’t cause trouble or
open their mouths that much about stuff.” In their brief, counsels for the General Counsel point
to record evidence concerning a mid-February conversation between Lepak and employee
Mang in support of the latter allegation.

I found that during the course of the organizational campaign, Lepak gave a speech or
speeches as part of the Respondent’s campaign against the Union, and that Lepak told the
assembled employees that the company was doing well and not headed for more layoffs, that
he didn’t care whether the employees had a union or not but that the company couldn’t grow
with a union, and that the Respondent wanted to move ahead with people with good attitudes. I
also found that Lepak told the assembled employees that they shouldn’t forget to vote and that
whether an employee voted “yes” or “no,” it wouldn’t be held against them.

Counsels for the General Counsel argue in their brief that Lepak’s comment as to the
Respondent not being able to grow with a union violated the Act, and that his coupling of his
_________________________
alleged in complaint paragraph 9(a)(ii), a similar allegation, as there is no evidence to support
said allegation.

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comment about no more layoffs with his comment of moving ahead with people with good
attitudes would cause employees to fear that to achieve no layoffs they would have to
demonstrate good attitudes, meaning not supporting a union. Respondent’s counsel, in his
brief, concedes that Lepak told employees that “the Company wanted to move forward with
workers who had a good attitude” but maintains, as to these alleged violations, that in the
context of everything Lepak said to the assembled employees, including that he didn’t care
whether or not the employees had a union, and that the Respondent would not hold anything
against an employee no matter how he/she voted, Lepak’s words were not coercive.

I conclude that Lepak violated Section 8(a)(1), as alleged, when he told the assembled
employees that the company could not grow with a union and that the company wanted to move
ahead with people with good attitudes. The Board has viewed the usage of certain words in
respect to union or protected concerted activity to be code words for that activity. See Phillips
Petroleum Co., 339 NLRB 916 (2003). “Attitude” is such a word. See, Bronco Wine Co., 256
NLRB 53. 54 (1981). Here, Lepak’s reference to moving ahead with people with “good
attitudes” coupled with his references to the company not being able to grow with a union
conveys a coercive message to the assembled employees that good attitude meant not favoring
a union and that such attitude was the key to avoiding future layoffs. Lepak mentioned that the
Respondent was not headed to more layoffs, but the assembled employees knew full well that
the Respondent a month or so earlier had permanently laid off employees. Urging employees
to vote, telling them that how an employee voted would not be held against him/her, and that
Lepak did not care whether the employees had a union or not, did not and could not ameliorate
the veiled and unveiled threats contained in the rest of his message.

I also find that Respondent violated Section 8(a)(1) when Lepak told employee Mang in
mid-February that “We have a good work force, they’re good workers and you don’t complain
much.” Lepak’s comment, which equates being a good worker with not complaining, is coercive
in that it occurred in the context of an organizing drive and a vigorous Respondent counter-
campaign, and followed on the heels of the Respondent’s permanent layoff of other plant
employees.

Mayer Conversation with Karboski

The General Counsel alleges in the complaint that the following actions of Vice-
President of Human Resources and Operating Services Thomas Mayer on March 22 violated
Section 8(a)(1): 1) Paragraph 15(a) – “expressed his opinion whom the Union’s observer
should be”; 2) paragraph 15(b) – “disparaged the Union by comparing it to a crack addict,” and
3) paragraph 15(c) – “by the conduct described above in paragraph 15(a), impliedly engaging in
surveillance.” In their brief, counsels for the General Counsel rely on Mayer’s conversation with
employee Karboski to support these complaint allegations.

Karboski was the Union’s observer at the election. I found that the day before the
election, Mayer spoke to Karboski in the plant’s mixing room. Mayer said he had heard that
Karboski was going to be the Union’s observer at the election. Karboski acknowledged she was
the observer. Mayer said he was surprised the observer wasn’t Brzezinski. Karboski
responded that she had picked her side early on and she was going to stick with it. Mayer
responded, “I hope you know what you’re doing.” Karboski said that if it didn’t work out, the
employees could vote the union out in a year. Mayer responded, “That’s what crack addicts
think too, that they can get off of it.”

Counsels for the General Counsel, in their brief, argue that Mayer’s comment about
crack addicts was disparaging of the Union in violation of Section 8(a)(1), that Mayer’s comment

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about Brzezinski implied surveillance of union activity, and that Mayer’s comment that he
“hoped that Karboski knew what she was doing” (not alleged as a violation in the complaint) was
not “harmless.” The Respondent’s counsel, in his brief, maintains that none of Mayer’s
comments violated the Act, that Mayer did not use the word “union” nor specifically mention the
Union in his “crack addict” comment, and that Mayer’s statement of his mistaken belief that
Brzezinski would be the Union’s observer, instead of evidencing surveillance, demonstrated the
opposite.

Section 8(c) of the Act “implements the First Amendment” such that “an employer’s free
speech right to communicate his views to his employee is firmly established and cannot be
infringed by a union or the Board.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). It
gives employers the right to express their opinions about union matters, provided such
expressions do not contain any “threat of reprisal or force or promise of benefit. Progressive
Electric, Inc., 344 NLRB No. 52, slip op. at 2 (2005). “Thus, an employer may criticize,
disparage, or denigrate a union without running afoul of Section 8(a)(1), provided that its
expression of opinion does not threaten employees or otherwise interfere with the Section 7
rights of employees.” Children’s Center for Behavioral Development, 347 NLRB No. 3, slip op.
at 2 (2006). “Denigration of the union is insufficient to support a finding that the Respondent
has violated the Act unless it is such as to threaten reprisals or promise benefits.” Children’s
Center, supra, quoting Poly-America, Inc., 328 NLRB 667, 669 (1999).

Here, Mayer’s “crack addict” comment was clearly not directed at the Union, but instead
at Karboski’s belief that employees could vote the Union out after a year if they were not happy.
Inasmuch as it was not directed at the Union, it was not disparaging of the Union. Even if it
were directed at the Union, Mayer was within his rights to express his nonthreatening,
noncoercive, albeit strong, opinion.81

The Board’s test for determining whether an employer has created an impression of
surveillance is whether the employee would reasonable assume from the statement in question
that his union activities had been placed under surveillance. United Charter Service, 306 NLRB
150 (1992). “The Board does not require employees to attempt to keep their activities secret
before an employer can be found to have created an unlawful impression of surveillance . . . .
Further, the Board does not require that an employer’s words on their face reveal that the
employer acquired its knowledge of the employee’s activities by unlawful means.” Id. at 151.
“The idea behind finding ‘an impression of surveillance’ as a violation of Section 8(a)(1) of the
Act is that employees should be free to participate in union organizing campaigns without the
fear that members of management are peering over their shoulders, taking note of who is
involved in union activities, and in what particular ways.” Flexsteel Industries, 311 NLRB 257
(1993).

I do not find that Mayer’s comment as to who was the Union’s observer implied
surveillance of union activity. As argued by the Respondent’s counsel in his brief, it was well-
known that Brzezinski was a strong supporter of the Union. Brzezinski was designated as a
member of the Union’s organizing committee in the February 7 union letter to the Respondent.
During Gardetto’s captive audience speech, Brzezinski made comments to her supportive of the
Union. Under these circumstances, with Brzezinski’s support of the Union no secret, it hardly
suggests surveillance for the Respondent to be aware of such support or to suggest to Karboski

81 While a strong antiunion atmosphere prevailed under the circumstances of this case,
including other violations of the Act (see e.g., Ryder Transportation Services, 341 NLRB 761
(2004)), I cannot conclude that Mayer’s crack addict comment was threatening.

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that Mayer thought Brzezinski would be the Union’s observer. Viewed objectively, Mayer’s
“observer” comment to Karboski would not reasonably have induced in her a fear that members
of management were peering over her shoulders. At most, Mayer’s comment was a sarcastic
expression of his opinion. I, thus, conclude that Mayer’s comments to Karboski did not violate
the Act as alleged.

Howe Captive Audience Speech

The General Counsel alleges in complaint paragraph 12 that in about the second or
third week in March, Tom Howe, Respondent’s president, told employees during a meeting that
“the Company was finally making money and asked why they would want to ruin it by bringing in
a third party.” Counsels for the General Counsel assert in their brief that Howe’s comment was
a “statement that selection of the Union was having adverse consequences.” Respondent’s
counsel, in his brief, characterizes this complaint allegation as implicitly alleging a threat of plant
closure, and argues either that Howe did not say what he was accused of and/or that what he
did say was a lawful expression of the Respondent’s opinion as to the Union, citing Mt. Ida
Footwear Co., 217 NLRB 1011 (1975).

I found that Howe told the assembled employees, in pertinent part, that the Respondent
had made a substantial capital investment, that Respondent’s sales had grown from 5 to 9–10
million dollars a year, that the Respondent was committed to finding new products and
customers to grow the business, that the Respondent was committed to make the business
work by better training and communication with its employees, that he was asking the
employees to support the direction the Respondent was going in, that union representation
could become a hurdle by the restrictive rules of a union contract, and that bringing in a third
party would wreck82 the progress.

Howe’s wrecking or ruining the Respondent’s progress comment, is a clearly expressed
prediction as to what would happen if the Union were to be successful. The standard for
determining whether an employer’s prediction is an impermissible threat was set forth in NLRB
v. Gissel Packing Co., supra at 618 (1969). The Board must focus on, “what did the speaker
intend and the listener understand.” Id. at 619. Any evaluation of the speaker’s comments,
therefore, “must take into account the economic dependence of the employees on their
employers, and the necessary tendency of the former, because of that relationship, to pick up
intended implications of the latter that might be more readily dismissed to the disinterested ear.”
Id. at 617. In further explication, the Court in Gissel held:

Thus, an employer is free to communicate to his employees any of
his general views about unionism or any of his specific views
about a particular union, so long as the communications do not
contain a ‘threat of reprisal or force or promise of benefit.’ He may
even make a prediction as to the precise effects he believes
unionization will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of objective
fact to convey an employer’s belief as to demonstrably probable
consequences beyond his control or to convey a management
decision already arrived at to close the plant in case of
unionization. If there is any implication that an employer may or
may not take action solely on his own initiative for reasons

82 Or “ruin.”

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unrelated to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on available
facts, but a threat of retaliation based on misrepresentation and
coercion, and as such is without the protection of the First
Amendment. Id. at 618. (citations omitted).

Howe’s words here do not constitute a carefully based prediction based on objective
fact. In context, they are words calculated to make the assembled, listening employees fear
that the Respondent’s investment, efforts to find new business and products, and commitment
to make the business work, would be torpedoed by an employee decision to choose union
representation. Decisions to invest, try new products, and seek new business are within the
control of the Respondent and are not demonstrably probable consequences beyond the
Respondent’s control. Howe’s prediction that choosing a third party (e.g. union) would wreck or
ruin the Respondent’s progress is a coercive threat unsupported by any objective fact cited by
Howe. I, thus, find that the Respondent violated Section 8(a)(1) by Howe’s words to the
assembled employees.

Disclosure of Confidential Employee Information from the Respondent’s Files

The General Counsel, in complaint paragraph 13, alleges that shortly before March 23,
various supervisors, in captive audience meetings, offered to disclose confidential information to
employees about an employee who had been permanently laid off. In paragraph 14(a) the
General Counsel alleges that sometime in February, at a captive audience meeting, supervisor
Blanquel disclosed confidential information to employees about an employee who had been
permanently laid off. In complaint paragraph 14(b), it is alleged that shortly before March 23, at
a captive audience meeting, Vice–President Mayer disclosed confidential information about an
employee who had been permanently laid off. At trial, the only evidence introduced by the
General Counsel on this issue had to do with the Respondent showing or offering to show
employees, during the election campaign, a disciplinary write-up from the file of laid off
employee Dennis Sobiech.

In their brief, counsels for the General Counsel rely on the late February conversation
between Blanquel and Carvalho as evidence in support of complaint paragraph 14(a) although
they concede that the evidence demonstrated that Blanquel’s comments were made in a one-to-
one conversation rather than, as alleged, at a captive audience meeting. Counsels for the
General Counsel compare Respondent’s actions in respect to the disclosure of the Sobiech
disciplinary write-up to a campaign letter sent by the Respondent to its employees, apparently in
respect to the Excelsior list requirement, in which Respondent said, “Baptista’s has always
respected the privacy of our employee’s personal information, and we apologize that in this
instance we are required to release your personal information to the NLRB for the Teamsters
without your permission.” Finally, counsels for the General Counsel, in their brief, argue that,
“By Respondent’s actions and its earlier letter, employees would perceive that a union
organizing campaign and subsequent union success could lead to the disclosure of confidential
information by Respondent.” Counsels for the General Counsel cited no case law in support of
this “chilling” argument.

Respondent, in its counsel’s brief, concedes that it engaged in some disclosure to
employees during the campaign, vis-à-vis Sobiech’s personnel file, but that said disclosures are
protected by Section 8(c) of the Act and Wisconsin state law. “Not only is Baptista’s limited
disclosure protected by Section 8(c) of the Act, but it is protected by Wisconsin law as well.”
The Respondent’s brief characterizes the evidence as to the Sobiech disclosure as “largely
undisputed,” and concedes the following: that supervisor Olson told employees at a captive

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audience meeting that he had a copy of Sobiech’s write-up with him, that Blanquel “offered to
show employees the disciplinary write-up in which Mr. Sobiech had been encouraged to
consider another position,” and that Blanquel offered to show employee Leslie Fintak a copy of
Sobiech’s disciplinary write-up.

The Respondent, in its brief, argues that a number of employees had raised questions
during the campaign as to the fairness of the Respondent having permanently laid off Sobiech
without having offered Sobiech a different position, and that the Respondent was just trying to
alleviate those concerns. As these questions were raised, Olson asked Mayer why Sobiech
hadn’t been offered a different position. Mayer told Olson that Sobiech had been offered the
possibility of moving to a different position at one time, and that this was documented in a write-
up in Sobiech’s personnel file. At Olson’s request, Mayer provided him with a copy, which
apparently is the copy Olson and Blanquel offered to show employees.

The version of the facts as to the Sobiech disclosure issue contained in Respondent’s
brief is largely consistent with my findings. I found that during an Olson captive audience
meeting, one or more employees brought up the Sobiech subject and asked why he had not
been offered another position prior to his layoff, that Olson inquired of Mayer as to Sobiech, who
gave Olson a copy of the Sobiech write-up which mentioned the possibility of another job, and
that both Olson and Blanquel offered to show this document to employees. I also found that
towards the end of February, Blanquel told employee Carvalho that he wanted to show
Carvalho the Sobiech write-up, and he showed it to him. Finally, I found that a week or two
before the election, in Mayer’s office, Mayer told employee Mang that Mayer knew the
employees were kind of upset that the Respondent had let Sobiech go, but that he had been
making mistakes and he (Mayer) was going to show Mang Sobiech’s personnel file showing that
Sobiech had made mistakes in the past. Mayer then showed Mang a file which contained
something about what a supervisor had written about Sobiech. I also found that during the
course of the election campaign, some of the Respondent’s employees had asked supervisors
why the Respondent had not offered Sobiech another job before laying him off.

Under these circumstances, I do not conclude that the Respondent’s offer to show or
actually showing the Sobiech write-up containing language as to the possibility of another
position, to other employees during the course of the organizational campaign, chilled union
activity or violated Section 8(a)(1). The information disclosed was limited to a single write-up
from Sobiech’s personnel file and it was in legitimate response to employee questions to
supervisors which arose during the course of the campaign. Based on this record, I cannot
conclude that an employee would reasonably fear, based on Respondent’s actions vis-à-vis the
Sobiech write-up, that his/her confidential information would be released by the Respondent if
he/she engaged in union activity, or if the union was chosen to represent them. Accordingly, I
conclude that the Respondent did not violate the Act as alleged in complaint paragraphs 13, and
14(a) and (b).

Posting of No-Solicitation Rule

The General Counsel alleges in paragraph 7(c) of the complaint that the Respondent
violated Section 8(a)(1) by restating and promulgating an addition to its no-solicitation, no-
distribution rule, in response to the union organizing drive. Counsels for the General Counsel
contend, in their brief, that while the rule itself is “facially valid,” the Respondent did not just post
the then-current rule but added language as to disciplinary consequences for violation of the
rule. The Respondent maintains, in its counsel’s brief, that the outstanding rule is facially valid,
that the language as to discipline in the newly posted rule is merely an “abbreviated summary of
the preexisting disciplinary policy in Baptista’s handbook,” and that in the absence of evidence

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that the rule was discriminatorily enforced, it was entitled to publish the rule. The Respondent
asserts in its Counsel’s brief that “When a company published a valid, preexisting
solicitation/distribution policy, and there has been no disparate enforcement of that policy, there
has been no violation of Section 8(a)(1),” but cites no case law in support.

There is no allegation here that the rule as posted or as in the handbook is facially
invalid. Unlike some cases, the Respondent does not assert that the posting of the existing,
but largely dormant, rule was undertaken to preserve production and order and there is no
evidence of such. Instead, as found, the evidence demonstrated that the rule was posted in the
lunchroom solely in response to the union organizing campaign.

While the Respondent’s argument that the posted rule does not represent a change from
the existing handbook rule is initially attractive and is accurate as far as it goes, it does not set
forth the whole story. As found, the posted rule, unlike the handbook rule, includes explicit
language as to violators being subject to discipline, up to and including discharge.
Respondent’s counsel refers to such language as “an abbreviated summary” of the existing
handbook language as to discipline. But the handbook references discipline as progressive
(acknowledging that “there may also be instances where disciplinary action will not be
progressive, depending on the severity and circumstances of the situation”). The posted
“abbreviated summary” makes no reference to progressive discipline. The Respondent, of
course, could have included in the posting, language referencing readers to the current
disciplinary policy included in the handbook, but chose to use the language it did, which made
no reference to progressive discipline or to the current handbook policy. I have also found that
Respondent did not enforce the no solicitation, no distribution policy either before or after the
posting in the lunchroom.

Inasmuch as the facial validity of the rule is not challenged here, the only issue is
whether the Respondent’s posting of the rule in the lunchroom, with the additional reference to
discipline, during the course of the Union’s campaign violated the Act. If the posted rule was
just an amplification or clarification of the existing handbook rule, its posting may not have
violated the Act. See Adams Super Markets Corp., 274 NLRB 1334, 1335 (1985).

Here, however, there is no evidence that the preexisting rule was ever enforced and
much evidence that it was not enforced at all. Further, the posted rule emphasized the
possibility of discharge and other discipline for violation, whereas the handbook rule is directly
accompanied by no mention of discipline or discharge, and the handbook sets forth a policy of
progressive discipline, a possibility not mentioned in the posted version. Finally, the
Respondent presented no evidence that the posting was generated by the need to preserve
order and production, but instead the evidence demonstrated that Respondent posted the rule
solely as a response to union organizing. See, for example, Harry M. Stevens, Inc., 277 NLRB
276 (1985). Under all these circumstances, I conclude that the posting in the lunchroom of a
preexisting but unenforced rule, which emphasized discipline out of context, served to chill
union activity in violation of Section 8(a)(1), and such chilling was clearly the purpose of the
posting, no evidence to the contrary. See, Dillon Companies, Inc., 340 NLRB 1260 (2003),
where in the context of a case involving the timing of the promulgation of a no-solicitation rule,
the Board held, “Where, as here, the rule has lain dormant for a substantial period of time, and
is resurrected only in the context of a union campaign, there is a reasonable presumption or a
nexus between those two events. In addition, if the timing can be explained by matters apart
from the campaign, the Respondent, as the promulgator, is in the best position to adduce
evidence of that explanation. Phrased differently, once it is shown that the rule was
promulgated in the context of a union campaign, the burden of the explanation lies with the

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employer.” I, thus, conclude that the Respondent violated Section 8(a)(1) by its posting of the
rule, as alleged in paragraph 7 of the complaint.

Postelection Allegations

Respondent’s March 23 Letter to Employees

Complaint paragraph 18 alleges that the Respondent violated Section 8(a)(1) by
soliciting grievances, in the letter to employees from Gardetto and Howe on March 23, just after
the election. Counsels for the General Counsel, in their brief, point to the following sentence
contained in the letter as evidence of solicitation of grievances: “We realize that the greatest
success comes when there is effective, continuous communication sharing of information, and
employee participation.” Respondent’s counsel, in his brief, citing Curwood Inc., supra,
maintains that “Nowhere in this memo do Ms. Gardetto or Mr. Howe solicit grievances from
employees.”

In agreement with the argument of the Respondent’s counsel, I find no words in the
letter soliciting grievances or even impliedly soliciting grievances, and find that the Act was not
violated in this regard. However the letter language cited by counsels for the General Counsel
may be construed, there are no words from which I can conclude that grievances are being
solicited, even in the context of the other solicitations I have found violative herein. Counsels for
the General Counsel cite Seville Flexpack Corp., 288 NLRB 518 (1988), for the proposition that
an employer’s postelection solicitation of grievances and grant of benefits are unlawful, when
“granted for union reason.”83 Seville, however, is inapposite in that it involved a postelection
grant of a benefit explicitly to thank employees for voting against the union, a “Freedom Day”
holiday. It is not alleged, and I would not find, that the letter at issue here conveys a benefit
upon employees. Further, I have found that there are no words in the Respondent’s letter which
solicit grievances. Accordingly, I conclude that the Respondent did not violate Section 8(a)(1)
as alleged in paragraph 18 of the complaint.

Employee-of-the-Year Award

Complaint paragraph 17 alleges that on March 28, the Respondent granted a benefit in
violation of Section 8(a)(1), by presenting an employee-of-the-year award, which included a
$500 gift certificate to Sears. In his brief, the Respondent’s counsel argues that 2004 was a
trying year for the Respondent in that employees worked long hours, that the recipient of the
award, employee John Rautio, distinguished himself in the newly created job title of packaging
machine operator (PMO) by his “willingness to learn, his desire and the amount of hours he was
willing to work,” that there was no evidence that the award was presented to Rautio for any
reason other than his job performance or for discriminatory reasons, and that the Respondent
has a history of giving attendance awards to employees each year. Finally, the Respondent
argues that “A union organizing campaign should not prevent employers from recognizing
outstanding performance by individual employees.” Counsels for the General Counsel, in their
brief, simply argue that giving the award constituted the granting of a benefit.

83 “We find it unnecessary to rely on the implication in se. II,E,4, par. 3 of the judge’s
decision that whether or not an election is pending, the grant of a benefit explicitly for rejecting a
union is unlawful. We note that the benefit in this case was granted during the period when
objections to the election could still be filed.” supra at fn. 2.

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I found that, in fact, the Respondent, on March 28, 5 days after the election, awarded an
employee-of-the-year prize consisting of a $500 gift certificate and a plaque to employee John
Rautio, that the Respondent had never previously awarded an employee-of-the-year prize, and
that in past years, and in 2005, it did award bonuses for perfect attendance.

In the instant case, the entire postelection period, with objections to the election still
pending, is a critical period for the consideration of Respondent’s actions, such period
characterized by the Board as a “preelection context.” See, Leland Stanford Jr. University, 240
NLRB 1138, fn. 1 (1979). The Board, in Honolulu Sporting Goods Co., 239 NLRB 1277, 1280,
(1979), enf. 620 F.2d 310 (1980). cert. den. 449 U.S. 1034 (1980), analyzed the law as to the
granting of benefits during the critical period as follows:

The validity of wage increases or other benefits during the
pendency of representation petitions turns upon whether they are
granted “for the purpose of inducing employees to vote against the
union.” And a lawful purpose is not established by the fact that
the employer who took such action did not expressly relate the
granted wage increases to the organizational campaign. For as
the Supreme Court observed in NLRB. v. Exchange Parts
Company 405, 410 (1964), “the absence of conditions or threats
pertaining to the particular benefits conferred” is not “of controlling
significance.” Under settled Board policy, a grant or promise of
benefits during the critical preelection period will be considered
unlawful unless the employer comes forward with an explanation,
other than the pending election, for the timing of such action
(some citations omitted).

Under the above discussed circumstances here, I conclude that the Respondent granted
the employee-of-the-year benefit for the purpose of inducing employees not to support the
union, and thereby violated Section 8(a)(1). These circumstances include the Respondent’s
aggressive campaign against the Union, the other unfair labor practices found herein, and the
fact that the Respondent had never before provided such a cash prize for superlative employee
performance. The Respondent argues that the award was granted after the election. But as
Respondent acknowledged in its letter to employees posted the date of the election, just after
the election, it was aware that the election was not final, and Board law holds that the
preelection critical period extends to cover the disposition of challenges and objections. The
attendance awards granted by the Respondent in the past are indeed benefits, but they are a
different benefit than the cash award for employee-of-the-year, and are not a precedent for the
granting of such new, different benefit. Finally, while Respondent argues that the employee-of-
the-year benefit was granted for the legitimate business purpose of rewarding a deserving
employee who went beyond the call of duty, it was created only after it was presented with the
specter of union organization.

In American Sunroof Corp., 248 NLRB 748 (1980), the Board held that “the granting of
benefits during an election campaign is not per se unlawful where the employer can show that
its actions were governed by factors other than the pending election. And the Board has further
held that an employer can meet this burden by showing that the benefits granted were part of an
already established company policy and the employer did not deviate from that policy upon the
advent of the union.” Here, based on my finding of facts, I conclude that the grant of the
employee-of-the-year cash award was motivated by the Union’s organizational campaign and
not by factors other than the election. I reject the Respondent’s implied argument to the effect
that recipient Rautio’s job performance in 2004 was so far superior to any employee’s previous

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job performance under whatever circumstances that it called out for the Respondent to create
this award.

Milwaukee Brewers Outing

Complaint paragraph 16(a) alleges that the Respondent, in violation of Section 8(a)(1),
“within a week or two after March 23,” granted employee benefits of free food and game tickets
for the Milwaukee Brewers May 1 baseball game, and complaint paragraph 16(b) alleges that in
conjunction with the baseball game, the Respondent provided free jackets to employees. The
Respondent maintains, in its counsel’s brief, that giving the free jackets to employees was part
of an already established company policy which the Respondent did not deviate from in that the
Respondent had previously given items of clothing to its employees, and that the Brewers
outing and jacket gift were for the Respondent’s business purpose of “team building” among its
employees.

I found that in early April the Respondent invited its plant employees and their guests to
a Milwaukee Brewers baseball game, and included free tickets and food at the game. The
outing took place on May 1, and “was a very expensive event.” In late April, the Respondent
provided employees with their choice of a free jacket with Baptista’s logo and in a memo
requested that the employees wear the jacket to the baseball game; “As we move Baptista’s
forward it is important that we do so as one unified team.” The jackets cost the Respondent
$2,445.38.

Again here, the issue is whether the outing and jacket benefits were granted for the
purpose of inducing employees to vote against the union, and the granting of benefits during an
election campaign is not per se unlawful where the employer can show that its actions were
governed by factors other than the pending election . Honolulu Sporting Goods, Co., supra.
The Respondent has demonstrated, and I found, that on some previous occasions it has
granted a free clothing benefit to employees, free festival tickets, and has provided free
Christmas lunches/dinners and associated items such as holiday turkeys.

But although the previous free clothing benefit is difficult to compare to the free jacket
benefit, it is clear that none of the other events (which generally included employees
contributing food or drink in a “pot-luck” type fashion) was of the magnitude of the very
expensive baseball outing. The cost of the baseball outing and its timing becomes even more
striking when compared with Gardetto’s testimony that the reason the Respondent had never
before sponsored such an outing was because it was very expensive and the Respondent
“wasn’t making money” and Mayer’s testimony that the Respondent was not making money
during the time of the organizational campaign and was not consistently profitable until 2006.

The Respondent, in its counsel’s brief, argues that when the Respondent sponsored the
Brewers outing in 2005, it was motivated “by its desire to building a unified team out of its
workforce, not a desire to interfere with employees’ exercise of their Section 7 rights.” This
argument refers to my finding that the hiring of the “pasta people” in the summer of 2004 caused
some hostility between that group and the preexisting Baptista’s employees and references the
memo from the Respondent to its employees with the logo jacket which stated, “As we move
Baptista’s forward it is important that we do so as one unified team.” But, in view of the
Respondent’s extensive campaign against the Union, and a record here replete with evidence of
the Respondent’s animus, including from its highest officials, I conclude that the mention in the
Respondent’s memo as to “moving forward as one unified team” more likely was a reference to
moving forward after the election without the Union.

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Under all these circumstances, I conclude that the expensive baseball outing, at a time
the Respondent was no better able to afford it than it was in previous years when it sponsored
no analogous event, was intended to further inhibit employee support for the Union, and that the
Respondent has not established that said outing was governed by factors other than the
pending election outcome. Accordingly, I conclude that the Respondent violated Section 8(a)(1)
as alleged in complaint paragraph 16(a) by providing to its employees the Brewers outing
benefit. I further conclude that providing the logo jackets did not violate the Act as alleged in
complaint paragraph 16(b) as the Respondent has established a pattern of past benefits of a
similar nature.

Two Dinners for Sanitation Department Employees

Complaint paragraphs 20(a) and (b) allege that the Respondent violated Section 8(a)(1)
by granting benefits to employees when Jackson took several employees to dinner at Famous
Dave’s restaurant, and also violated Section 8(a)(1) when Gardetto took several employees to
dinner at Ingrilli’s restaurant. In his brief, the Respondent’s counsel argues that the dinners took
place in June, months after the election, that the invited employees were members of the
departments which had performed extraordinary work in preparation for the AIB audit, that there
was no evidence that any comment “was made about the representation election at these
dinners” or that the invitations depended on whether employees supported or opposed the
Union, and that, “Based on the evidence which was presented, Baptista’s has proven that its
motivation for these dinners was wholly independent of the Union’s organizing campaign.” The
Respondent’s counsel further argues that in the past the Respondent has provided
complimentary meals to employees.

I found that in June, Jackson treated all of the sanitation and quality control department
employees and their guests to a complimentary dinner at Famous Dave’s restaurant for the
stated purpose of thanking the employees for their work towards the AIB audit, and that about 2
or 3 weeks later, Howe and Gardetto took the same group to a complimentary dinner at Ingrilli’s
restaurant, that the price range for dinners at the two restaurants is $10 to $25 dollars and
higher, and that only the Ingrilli’s dinner included alcoholic drinks.

Again, the test here is whether the two free dinner benefits were granted for the purpose
of inducing employee disaffection with the union, remembering that the granting of benefits
during an election campaign is not per se unlawful where the employer can show that its actions
were governed by factors other than the pending election. Honolulu Sporting Goods, Co.,
supra.

Based on my finding of facts, and the above-discussed circumstances, I conclude that
the Respondent’s providing of two free restaurant dinners to the employees of the sanitation
and quality control departments and their guests, violated Section 8(a)(1) in that it constituted
the granting of benefits during the critical period for the purpose of influencing their union
leanings. In reaching this conclusion, I do not ignore the Respondent’s argument that the
dinners were for the purpose of thanking the employees for their work in preparation for the
audit and that the Respondent had previously provided free meals to employees in the past.

But what the Respondent did here was unprecedented in that there is no evidence that
on any previous occasion the Respondent took employees and their guests to a restaurant for a
free dinner or purchased alcoholic drinks at a restaurant for their employees, and this first and
only occasion “happened” to fall during the critical period. In the further context, that these
actions occurred in the midst of the Respondent’s aggressive campaign against the Union,
expressed animus, and other unfair labor practices, and the fact that the Respondent found it

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necessary to treat the employees to a restaurant dinner not just once, but twice, I conclude that
the restaurant dinners were provided for the purpose of influencing employees during the critical
period, and that the Respondent thereby violated Section 8(a)(1) as alleged in complaint
paragraphs 20(a) and (b).

The Wehrley Survey

Complaint paragraph 19(a) through (d) alleges that on April 22, the Respondent notified
“all employees that they would be introduced to Team Building & Communications Consultant,
Susan Wehrley,” that about May 10, Wehrley distributed surveys to employees, that as an
inducement to return the completed surveys, employees were offered and given $10 gift
certificates, and that the surveys, in violation of Section 8(a)(1), solicited grievances with the
implied promise that wages, hours, and working conditions would be improved. In its counsel’s
brief, the Respondent argues that it had previously utilized Wehrley’s services long before any
union activity and that the record demonstrates that the Respondent had a legitimate business
reason for utilizing Wehrley’s services as follows: “Unquestionably, Ms. Wehrley’s assessments
solicited employee feedback and complaints. However, Baptista’s has a legitimate business
justification for doing so.”

In support of its argument that an employer may rebut the preliminary finding of unlawful
solicitation of grievances by showing a legitimate business reason for the challenged practice,
the Respondent cites Torbitt & Castelman, Inc v. NLRB., 123 F.3d 899 at 907 (1997).
Respondent also cites Leland Stanford Jr. University, supra at fn. 1, as an analogous case in
which the Board concluded that an opinion survey rendered by an employer to unrepresented
employees and soliciting their grievances concerning working conditions, does not violate the
Act even during the critical period, where “the opinion survey was conceived for legitimate
business reasons and was not designed in response or opposition to the Union’s organizing
effort.”

I found that Respondent retained Wehrley in January, after previously utilizing her
services in 2000 and 2001 to work with the Respondent’s management in improving
communication skills and blending management styles and manager’s personalities. This
previous consulting work did not involve plant employees subject to the current organizational
effort. Wehrley met with the Respondent’s top managers, including Gardetto, on February 12
and Mayer’s e-mail following the meeting to all attendees, thanking them for attending the
Saturday meeting, also addressed how supervisors should deal with employees during the
course of the Union’s organizing drive. Wehrley met three times in February with the
Respondent’s top management and was informed at these meetings of the existence of the
organizing drive, that management was concerned about the drive, that management wanted to
know the cause of employees wanting a union, and management desired to have a union.
Wehrley, herself, testified as to designing the employee survey that, “It wasn’t necessarily tied
exactly to the union, but there was a concern about why are people disgruntled.”

As discussed above, Section 8(a)(1) prohibits employers from soliciting employee
grievances in a manner that interferes with, restrains, or coerces employees in the exercise of
Section 7 activities. American Red Cross Missouri Illinois, etal., supra. “An employer who has
a past policy and practice of soliciting employees’ grievances may continue such a practice
during an organizational campaign,” Johnson Technology, Inc., 345 NLRB No. 47 (2005), slip
op. at 3 (2005) but an employer cannot rely on past practice to justify solicitation of grievances
where the employer “significantly alters its past manner and methods of solicitation.” Wal-Mart
Stores, supra (quoting Carbonneau Industries, 228 NLRB 597, 598 (1977).

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Here, the Respondent, prior to the Union’s organizational campaign, occasionally
solicited suggestions or grievances, and the Respondent has, in the past, used Wehrley’s
services. But the Respondent never before circulated surveys among its plant employees within
the unit that is the subject of the organizational campaign and never before provided a benefit to
employees for completing surveys. Under the circumstances here, I conclude that the
Respondent’s method of using surveys with incentives for completion is a significant departure
from any past solicitation.

Inasmuch as the solicitation occurred in the critical period84 and in the context of the
unprecedented usage of a gift certificate for completion of the surveys, Respondent’s
aggressive campaign against the Union, and concomitant unfair labor practices, I conclude that
the surveys constituted a solicitation of grievances with inference of a promise to remedy in
violation of Section 8(a)(1) of the Act. See, for example, American Red Cross Missouri-Illinois
et. al., supra at 5–7, where the Board found the survey not to violate Section 8(a)(1), but in a
context where the employer, before union organizational activity, had utilized surveys to solicit
employee grievances: “Moreover, the Respondent’s use of a survey is consistent with its history
of soliciting employee feedback with surveys.”

Moreover, in light of Wehrley’s testimony to the effect that management wanted to know
the cause of employees wanting a union and that she was looking to find out why employees
were disgruntled, and the continuing pattern of unfair labor practices I have found herein, there
is a clear nexus between the organization drive and the survey. See Amptech Inc., 342 NLRB
supra at 1137. Finally, while the Respondent advances its asserted need to build teams as a
legitimate business reason for the surveys and argues that it deliberately waited until after the
election to conduct the surveys, I note that the Respondent did not “discover” its need to build
teams and implement the surveys until it faced the specter of the Union’s organizing campaign,
and that the survey was conducted during the critical period, at a time it was well aware of the
non-finality of the election and the Union’s continuing interest in organizing its employees. I,
thus, conclude that the Respondent has failed to rebut the inference that the survey was
designed to correct the discontent that led up to the organizing drive and to ensure that the
pending organization effort failed.85 Accordingly, I conclude that the Respondent violated
Section 8(a)1) as alleged in paragraphs 19(a)–(d) of the complaint.

Section 8(a)(3) Allegations

Kathy Mankin Discharge

The complaint alleges that the Respondent discharged Kathy Mankin in violation of
Section 8(a)(3). The Respondent, in its counsel’s brief, concedes that it was aware of her
support for the Union, but argues that she was discharged for job performance and “the General
Counsel has failed to prove any causal connection” to her support for the Union.

84 Post election, but while objections and determinative challenges were pending.
85 The instant situation is unlike that in Leland Stanford Jr. University, supra, where the
Board found, “The record is clear that for a considerable period of time, both prior and
subsequent to the distribution of the survey, there was no active campaigning on the part of
either the Union or the Respondents. . .” Here, the survey was distributed less than 2 months
after the unresolved election and the record does not suggest that there was no active
campaigning on the part of the Union and the Respondent. In fact, I found that the
Respondent’s unfair labor practices continued after the election.

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In deciding whether the Mankin discharge violated Section 8(a)(3), I apply the criteria
laid down in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). “To prove
a violation under Wright Line, the General Counsel must first show that protected or union
activity was a motivating factor in the respondent’s decision to take adverse action against the
alleged discriminatee. The General Counsel can satisfy this initial burden by proving that the
alleged discriminatee engaged in protected or union activity, that the respondent was aware of
it, and that the respondent demonstrated some animus toward that activity. The burden then
shifts to the employer to demonstrate that the same adverse action would have occurred even
absent the protected activity.” American Red Cross Missouri-Illinois Blood Services Region,
supra.

The General Counsel has satisfied its initial burden in respect to Mankin. Thus, I found
Mankin participated in union activity including being a member of the Union’s organizing
committee. I also found, and Respondent conceded, it was aware of Mankin’s activities and
support for the Union. Finally, I found that the Respondent engaged in an aggressive campaign
against the Union, committed other unfair labor practices and otherwise demonstrated animus.
The burden, thus, shifts to the Respondent to demonstrate that it would engaged in the same
adverse action even absent the union activity.

In their brief, counsels for the General Counsel essentially concede that Mankin
experienced the work performance problems asserted by the Respondent, and that all three
Q.A. techs, including Mankin, a Union supporter, and Cassel who opposed the Union, were
repeatedly disciplined for their performance shortcomings. Counsels for the General Counsel
instead argue that Mankin was treated differently because of her support for the Union, and
was, unlike Cassel—a Union opponent—not offered a position in a different department.

As found, the Respondent followed its policy of progressive discipline in respect to all
three Q.A. techs, concluding in the discharge of all three. While the Respondent did not offer
Mankin the chance to transfer to a different job, I could not find that Q.A. tech Cassel was
extended such an offer by the Respondent. Further, I found that Mayer told Sobiech, at a time
prior to his permanent layoff, that he should consider a move to a different department, but
Sobiech was laid off, not discharged, and while Mayer told Sobiech to consider a different job,
he did not offer the job. The record demonstrates, and I found, that Mankin was repeatedly
disciplined for job performance shortcomings, and that the Respondent followed its policy of
progressive discipline in respect to Mankin. Under these circumstances, I conclude that the
Respondent has satisfied its burden of demonstrating that it would have discharged Mankin
even absent her union activity. I, thus, conclude that the Respondent did not violate Section
8(a)(3) by discharging Mankin.

Donna McCall Discipline

Complaint paragraph 21(a) alleges that the Respondent disciplined Donna McCall in
violation of Section 8(a)(3). The Respondent, in its counsel’s brief, argues that McCall was
disciplined for cause, that “there was no evidence of any relationship between her union activity
and this discipline,” and that “there was no evidence that Ms. McCall was treated differently than
any similarly-situated employee who opposed the Union.” Counsels for the General Counsel, in
their brief, essentially concede, as they must, that McCall engaged in the egregious actions she
is accused of, but maintain that she was disciplined disparately: “While the General Counsel
readily admits that using the “N-word” is unacceptable, what needs to be considered is whether
action taken against others who used that word was consistent with this situation, involving a
union supporter.” In support of this disparate treatment argument, counsels for the General
Counsel cite McCall’s testimony that she heard Blanquel use the “N-word” on two occasions,

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and Glyzewski’s testimony that he overheard lead packaging machine operator (PMO) Mike
Stanford refer to manager Marlenea Jackson with the “N-word” in the presence of Blanquel.

I apply the Wright Line test to the McCall discipline,86 as discussed above. Under that
test, I conclude that the General Counsel has met his initial burden of showing that protected or
union activity was a motivating factor in the Respondent’s decision to take adverse action
against McCall. Thus, the General Counsel has proved that McCall engaged in union activity,
that the Respondent was aware of it, and that the respondent demonstrated some animus
toward that activity. I also conclude that the Respondent has met its resultant burden by
demonstrating that it would have taken the same disciplinary action even absent the union
activity, and thus did not violate Section 8(a)(3) of the Act by administering discipline to McCall,
as is alleged in the complaint. McCall clearly committed the acts she was accused of and the
Respondent did not act in a manner inconsistent with its own disciplinary policy in administering
a final warning to McCall. Mayer imposed the discipline when he learned of the incident.

Finally, in my findings herein, I have not found that either Blanquel, or Stanford in
Blanquel’s presence, used the racial slur involved herein. Inasmuch as there is no other
evidence involving an employee similarly situated to McCall, I reject the disparate treatment
argument advanced by counsels for the General Counsel. Accordingly, having applied Wright
Line, I conclude that the Respondent did not violate Section 8(a)(3) by administering a final
warning to McCall.

The Respondent’s Section 10(b) Argument

The Respondent maintains that most of the allegations added by the General Counsel’s
amendment to the complaint of February 17, 2006 are untimely in that they were never alleged
in any prior charge or complaint. These allegations appear in the amended consolidated
complaint of February 22, 2006, the operating document of the litigation, as paragraphs 8(a)–
(b), 9(c)–(d), 10(a)–(b), 11(a)–(b) and 20. The February 22 amended consolidated complaint
added no new allegations, and was introduced at the trial by the General Counsel, without
objection, at the undersigned’s request, so that the parties would have one operating document
for reference during the litigation, rather than a series of documents. The Respondent raised
the 10(b) issue as an affirmative defense in the answer it filed on February 22 to the amended
consolidated complaint. Counsels for the General Counsel do not address this issue in their
brief.

The General Counsel previously issued a complaint in Case 30–CA–17104 on June 30,
2005, and issued a complaint in Case 30–CA–17268 on December 30, 2005. The original
charge in Case 30–CA–17104 was filed on February 11, 2005, and amended charges were filed
on April 29, 2005 and May 31, 2005. The original charge in Case 30–CA–17268 was filed on
August 15, 2005, and amended charges were filed on September 15, 2005, October 31, 2005,
and November 2, 2005. The specific allegations which the Respondent argues are precluded
by Section 10(b) and which were added by the February 17 amendment to complaint are as
follows: In the first or second week of February, Gardetto solicited grievances; In March,
Gardetto promised an employee things would get better; In mid-February, Blanquel made

86 I note that the discipline of a final warning was not inconsistent with the Respondent’s
then-existing disciplinary policy. While the policy provided for progressive discipline, the
Respondent’s disciplinary guidelines also provide as follows: “There may also be instances
where disciplinary action will not be progressive, depending on the severity and circumstances
of the situation.”

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threats of plant closure; In February or March, Blanquel solicited grievances and promised
benefits after a meeting; In February or March, Blanquel and Olson solicited grievances during
and after a meeting; In February, Lepak told employees that the Respondent wanted employees
with good attitudes and that the Respondent was trying to move forward during a captive
audience meeting; In mid-February, Lepak told an employee that the Respondent was looking
for workers who “don’t cause trouble or open their mouths that much about stuff;” In June
Jackson took employees to dinner at Famous Dave’s restaurant; and in June, Gardetto took
employees to dinner at Ingrilli’s restaurant.

Traditionally, the Board and the courts have allowed the General Counsel to add
complaint allegations outside the 6-month 10(b) period if they are closely related to the
allegations of the timely filed charge. Redd-I, Inc., 290 NLRB 1115, 1116 (1988). There is a
three-factor test for determining whether a sufficient relationship exists between an otherwise
untimely allegation and a timely filed charge. Id. at 1118. “First the Board assesses whether
the otherwise untimely allegation involves the same legal theory as the allegation in the timely
charge. Second, the Board examines whether the allegations arise from the same factual
situation or sequence of events. Third, the Board may look to whether the Respondent would
raise similar defenses to both allegations.” Precision Concrete, 337 NLRB 211 (2001). See
also, Regency Grande Nursing & Rehabilitation Center, 347 NLRB No. 106 (2006), slip op. at
fn. 2.

The charges and amended charges filed by the Union here87 contain allegations as
follows: 1. Original charge in 30–CA–17104: alleges that the mass layoffs violated Section
8(a)(3); 2. First amended charge in 30–CA–17104 added the following relevant 8(a)(1)
allegations: That shortly before March 23, threatened that if the Union won the election,
employees would lose benefits, everything would start from zero, and leadman pay would not
be awarded to an employee. This amended charge also added allegations of surveillance,
promulgation of a no-solicitation rule, disparagement of the Union, granting of benefits including
the Brewers outing, jackets, and employee-of-the-year award, and the solicitation of grievances,
and an announcement that it was considering changing the time of year for employee
evaluations; 3. The second amended charge in Case 30–CA–17104 added an allegation as to
the Wehrley questionnaire.

The original charge in Case 30–CA–17268 added 8(a)(3) allegations of discipline. The
first amended charge added further allegations of 8(a)(3) discipline. The second amended
charge added the allegation of the alleged 8(a)(3) discipline of McCall. The third amended
charge added more allegations of discipline in violation of Section 8(a)(3).

I conclude that all of the allegations disputed by the Respondent as being precluded by
Section 10(b), meet the Board’s “closely related” test as being closely related to timely filed
charges herein, and are not precluded from litigation by Section 10(b). Thus, all of the disputed
8(a)1) allegations added by the General Counsel’s amendment to the complaint involve the
same legal theory as the 8(a)(1) allegations in the original and amended charges in Case 30–
CA–17104; that is, that the Respondent engaged in solicitation of grievances, granting of
benefits, and threats, as part of its campaign against the Union. Second, the disputed
allegations all arise from the same sequence of events alleged in the original charges and
amended charges; that is, the Respondent’s campaign against the Union. Third, the defenses
raised by the Respondent to the disputed allegations at trial are essentially similar to the

87 The Respondent does not contest the timeliness of any of the charges or amended
charges.

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defenses it raised as to the undisputed (for purposes of Section 10(b)) complaint allegations;
that is, credibility, continuation of a preexisting practice, business purpose, and Section 8(c).
The disputed allegations add no new theory of law and do not depart from the factual scenario
involving the organizing campaign which is the subject of all of the charges and complaints
involved here.

Permanent Layoffs of February 2

Kathi Szuszka Layoff

The complaint alleges that Szuszka was laid off on February 2, along with the five other
named alleged discriminatees. The evidence clearly demonstrates that the Respondent had no
intention of laying off Szuszka, and did not lay her off on February 2. In answer to my question
during the trial, counsel for the General Counsel argued that the Respondent’s actions vis-à-vis
Szuszka were akin to a constructive discharge, but did not amend or seek to amend the
complaint to so allege and, hence, there is no allegation here that the Respondent offered a job
it knew she would refuse.

There is no evidence that somehow the Respondent targeted Szuszka for special
treatment by pretending to offer her another job, knowing she would not accept it. And there is
no evidence that the Respondent specially targeted Szuszka as a union activist in that it wasn’t
until February 7 that the Respondent learned she was a member of the Union’s organizing
committee, upon receipt of a letter from the Union.

Neither the Charging Party nor the General Counsel argues that the Respondent did
not offer Szuszka a job. And there is no evidence that the Respondent’s offer to Szuszka was,
in any sense, a sham. It defies logic to believe that the Respondent would have gone through
the effort it made with Szuszka, to find another position for her and to offer the position to her, if
it didn’t intend to keep her. At worst, there was a failure of communication between Jackson
and Szuszka in that Jackson understood that Szuszka would not work on the first shift, and
would remain an employee only if Lepak could find another position for her on an acceptable
shift. I, thus, do not conclude that Szuszka was laid off in violation of Section 8(a)(3), as
alleged.

Rest of the Layoffs

Complaint paragraph 6 alleges, in pertinent part, that on February 2, the Respondent
permanently laid off employees Sobiech, Crowley, Bohen, Starrett, and Zullner because
employees of the Respondent engaged in union activities. The Respondent’s answer admits
the layoffs, but denies that they were connected to union activity. Respondent asserts that it
laid off the five alleged discriminatees for economic reasons. I apply the Wright Line, supra,
test to analyze whether the layoffs violated the Act.

The General Counsel’s Wright Line Burden

Under Wright Line, I conclude that the General Counsel has met its initial burden of
demonstrating that union activity was a motivating factor in the layoffs. In reaching that
conclusion, I find that various employees of the Respondent were involved in a union organizing
drive prior to the layoffs or any decision to layoff, that the Respondent was aware of the activity,
and that the Respondent has displayed animus toward the organizational campaign.

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First, under Wright Line, there is no dispute that prior to the layoffs, some of the
Respondent’s employees were engaged in organizing activity on behalf of the Union. Thus,
Brzezinski first contacted the Union on January 12, and three union meetings were held in
January for and with employees interested in union representation. The General Counsel does
not contend that the Respondent deliberately chose certain employees for layoff because of
their union activity, and the Board has held that in the case of layoffs, antiunion motivation may
be found even when some, or even most of the laid off employees were not known union
supporters. See, e.g., McGaw of Puerto Rico, Inc., 322 NLRB 438 (1996), enfd. 135 F.3d 1 (1st
Cir. 1997). Accordingly, the General Counsel is not required to show a correlation between
each employee’s union activity and his or her layoff, because it is the mass layoff, not the
selection of employees for layoff that is at issue. Instead, the General Counsel’s burden is to
establish that the mass layoff was ordered to discourage union activity or in retaliation for the
protected activity of some. See, Davis Supermarkets, Inc., 306 NLRB 426 (1992), quoting
ACTIV Industries, Inc., 277 NLRB 356, fn. 3 (1985).

As to animus, the record is replete with evidence of the Respondent’s aggressive
campaign against the Union, and I have found that the Respondent has engaged in actions
during the campaign violative of Section 8(a)(1), including by some of the Respondent’s highest
officials. The effect of such unfair labor practices is magnified when the conduct is perpetrated
by high ranking officials. See Weldun International, Inc., 321 NLRB 733, 736 (1996).

I also conclude that the Respondent was aware of the organizing activity at the time it
decided on and implemented the layoffs. I found that on February 7, the Respondent received
formal notification from the Union as to its organizing drive when Mayer received and read the
Union’s notification sent by fax. I also found that about January 26, Brzezinski talked to Shift
Manager Olson about “getting a union.” I further found that a couple of weeks before February
9, maintenance mechanic Cantwell made a comment about a union, heard by Shift Manager
Sertich, and that Sertich had so reported to Vice President Lepak within a day or two after
hearing the comment. 88

Lepak, as the Respondent’s vice president of manufacturing, was directly involved at
meetings where the Respondent discussed determining the layoffs and new shift assignments.
On direct examination, when asked by the Respondent’s counsel if he was “aware the
Teamsters were in the process of trying to organize Baptista’s employees,” at the time of his
involvement in layoff decisions, Lepak answered, “No.” Lepak was then asked by the
Respondent’s counsel, “At any time prior to the change in the production schedule…did you
have any knowledge of that?” He again answered, “No.” However, in reaching my conclusion
that, in fact, Lepak was aware of some union activity, I note that the comment by employee
Cantwell, heard by supervisor Sertich and passed on by Sertich to Lepak, did not contain a
specific reference to the “Teamsters,” but rather referred to a union, generically. Thus, while
Lepak specifically denied knowledge of a Teamsters campaign at the time of his involvement in
layoff decisions, he never denied what other evidence demonstrated, that is knowledge of some
union activity.89

88 Mayer testified that Sertich said that he didn’t take Cantwell’s remark seriously. But, of
course, he took it seriously enough to report the remark to Vice-president Lepak.
89 On direct examination Lepak testified: Q. “During the time you personally were involved
in the process of determining new shift assignments, determining layoffs, were you aware that
the TEAMSTERS were in the process of trying to organize Baptista’s employees?” (emphasis
added.) A. “No.”

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As to shift manager Olson, I found that he also had knowledge that a union was being
discussed by employees. Similarly to Lepak, on direct examination Olson, when asked if prior
to when he learned (about 2 or 3 weeks before the layoffs) about the change in shift schedules,
he had “any idea that the Teamsters were interested in an organizing campaign at Baptista’s,”
answered “I don’t believe so, no.” Thus, Olson denied knowledge of the Teamsters, but did not
deny knowledge of union activity. I found that Olson learned of union activity from his
conversation with Brzezinski. Brzezinski testified as to talking about a “union” and did not testify
that he specifically mentioned the Teamsters.

As noted, Vice-president Lepak was directly involved in the layoffs. Further, while the
record does not establish that Shift Managers Olson and Sertich were similarly involved, “it is
well-established that a supervisor’s knowledge of union activities is imputed to the employer.”
Dobbs International Services, Inc., 335 NLRB 972 (2001). I, thus, base my finding that the
Respondent was aware of union activity prior to the February 2 layoffs, on the actual knowledge
of Lepak, and the knowledge imputed to the Respondent through supervisors Olson and
Sertich.90

In his brief, the Respondent’s counsel poses the key issue as to knowledge, as being
whether the General Counsel proved that the Respondent’s relevant decision makers knew of
the organizing campaign before the decisions were made, but then argues that “Baptista’s
decision makers did not know of the Teamster’s organizing campaign prior to the February 2
layoffs.” Phrasing the argument this way is significant because nowhere in the Respondent’s
brief is there any explicit date mentioned or suggested for such a decision by the Respondent.
Indeed, nowhere in the record does any witness of the Respondent directly testify to or establish
any firm date when the Respondent reached a decision to permanently lay off employees, or a
firm timeline for such decision.

Thus, Mayer testified that the Respondent’s managers, Mayer, Howe, Lepak, and
Jackson, first held meetings with regard to possible layoffs in early January, and late December
2004. Upon being shown a document to refresh his recollection, Mayer changed his testimony
as to these meetings and testified that they occurred some time during the week of January 24.
Mayer also testified that the Respondent used no documents at these meetings to come to a
decision.

Jackson first testified, in response to the General Counsel’s questions, that she was in a
meeting at which there was a decision to cut back but couldn’t remember the date. Also in
response to the General Counsel’s question, Jackson testified that as of January 29 she wasn’t
intending to, and wasn’t directed to, lay people off. Counsel for the General Counsel then asked
Jackson, “Okay, so it was after January 29th that you were first informed there was going to be
cutbacks because of slow business, correct?” Jackson answered, “As far as I remember, yes.”
But, after a 5-week recess in the trial, when questioned by the Respondent’s counsel, Jackson
testified that her testimony to the General Counsel as to the January 29 was “obviously wrong”
because she would have needed more than a few days to figure out who she would lay off.
Jackson testified, “I was obviously wrong because it took longer to get to move through this and
figure out who we would like to keep, who we wouldn’t, what we were going to actually do.
Were we going to release people?91 Were we going to go to the five day work week. It takes

90 I find any testimony to the contrary by Mayer, Howe, or other officials of the Respondent
to be noncredible in view of this conclusion.
91 Thus, even Jackson’s second version, if credited, leaves open the question of whether the
Respondent had initially decided on permanent layoffs.

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longer than just a couple of days.” Because of the inconsistency of Jackson’s testimony and her
initial testimony that she couldn’t remember the date of any meetings when a cutback decision
was made, I find that I cannot rely on Jackson’s testimony to establish any date for the
Respondent’s decision to permanently lay off employees, nor any timeline therefor.

Lepak testified that he was present at a meeting or meetings where the Respondent’s
officials discussed the changes implemented on February 2, but also testified that he couldn’t
recall a specific date when any meetings were held. Lepak, in response to the Respondent’s
counsel’s question testified, “Well, I don’t recall specifically, you know, the date that we talked
about it . . . .” The Respondent’s counsel then asked Lepak if the decision was reached in a
single meeting or a series of meetings. Lepak answered, “I don’t recall if it was one single
meeting. I don’t believe it was. We talked about it obviously on several occasions.” Lepak,
thus, does not establish a date for the Respondent’s decision to permanently lay off employees
nor any timeline therefor.

The Respondent’s counsel asked the Respondent’s president, Tom Howe, how long it
took the Respondent to make the decision to change the shift structure, as follows: “Q. Now
again, I understand that very few decisions are made overnight – the decision to go from four
twelves to three eights, was that a decision made in a couple days or was it a longer process?
A. It would have been a longer process.” Howe then testified that the time frame for said
decision was “approximately a month.” Howe testified that he was not the person who decided
layoffs would be necessary, that he was part of discussions with Mayer and Lepak as to the
“implementation of the new production schedule,” and that these were multiple discussions over
an approximate period of 3 weeks. Howe then gave the following answers to the questions of
the Respondent’s counsel: “Q. Before we talk about specifics, to the best of your recollection,
what topics were discussed at these meetings? A. The meetings that I was part of was what
the shift structure would be, as it relates to the number of jobs one each of the shifts. Q. As
part of the discussion of the number of jobs on each shift, to the best of your recollection, was
there any discussion in any of those meetings about the need for any layoffs? A. Yes. Q.
Now, to the best of your recollection, what specifically was said and by whom? A. That there
would be less jobs. Less positions required, since we were contracting from these four shifts to
three shifts.”

As I found as to Lepak and Jackson, I find that Howe’s testimony establishes no firm
date for the Respondent’s decision to permanently lay off employees, nor any specific timeline.
Indeed, Howe, the president of the Respondent, did not establish who made the decision
(except, that he didn’t), exactly when a decision was made, and the specifics of the decision.
Finally, when asked by the Respondent’s own counsel, who said what at the meetings where
layoffs were allegedly discussed, Howe responded with generalities and a failure to identify the
speakers. Howe did testify, in response to the questions of the Respondent’s counsel as
follows: “Q. Not only were they [the layoffs] a natural consequence, but they were an inevitable
consequence of that [new] shift structure? A. That is correct.” But such testimony, which
seems to suggest that no decision to lay off employees was necessary because it was a natural
consequence of the new shift structure, is belied by what the Respondent has done before
when faced with such downturns, and what options are available in general to employers facing
such situations. I will not substitute my judgment for the Respondent’s in deciding what to do
when faced with such a problem, but find that it is facile to suggest that there was no decision to
be made as to various options including layoffs. It is certain that some official of the
Respondent decided there would be permanent layoffs and there was a date definite on which
that decision was reached. But this record does not provide a basis for making such findings.

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Thus, in a case where the date of the Respondent’s decision to permanently lay off
employees is crucial, the Respondent failed to establish a date when the decision was made, or
a timeline for the decision, and leaves it largely to speculation as to who made the decision.
Howe testified that he decided on the shift changes, but Lepak and Mayer decided there would
be layoffs. Lepak testified that he attended management meetings where the subjects of the
shift change and production were discussed, that he was involved in deciding which employees
would be laid off, but did not testify that he made the decision that the Respondent would lay off
employees. Mayer testified as follows in answer to counsel for the General Counsel’s
questions: “Q. Were you involved in the decision to lay off the employees? A. Yes. Q. Did
you initiate the idea that the employees would be laid off? A. No. Q. Who did? A. I don’t
recall. Q. What was your role in the process? A. Making sure that severance was taken care
of, understanding the reasoning behind the layoffs. I felt comfortable with it, or I should say with
the individuals.”

Based upon my earlier findings that the Respondent had learned of union activity by
January 26, and the failure of the Respondent to establish any date or timeline for the decision,
or even who made the decision, I conclude that the Respondent had knowledge of the union
activity prior to the February 2 permanent layoffs, and before any decision to engage in layoffs.
Thus, under Wright Line, the General Counsel has established that employees engaged in
union activity, the Respondent was hostile to that activity, and had knowledge of the activity
when it decided to permanently lay off employees.

The Respondent’s Wright Line Burden

I further conclude that while the General Counsel has met its initial Wright Line burden,
the Respondent has failed to meet its resulting burden that it would have engaged in the
permanent layoffs even absent the union activity. The Respondent argues, essentially, that the
permanent layoffs were caused by a “double-whammy” consisting of the normal downturn that
occurs at the Respondent’s business, and throughout the snack business, in the period
following the “Super Bowl” each year, combined with disappointing sales and projected future
sales of certain snack products, including the Weight-Watchers and Old Dutch products. But, I
find that the Respondent has failed to establish that the layoffs were legitimately based on
anything other than the seasonal downturn, and that in previous years, before union activity, the
Respondent had dealt with such downturns by methods other than permanent layoffs. The
testimony of the Respondent’s top officials at the time does not establish to the contrary.

Lepak testified as follows in response to questions of the Respondent’s counsel: “Q.
Before we talk more about those layoffs I want to finish exploring the business conditions. What
in particular was in a downturn? What products, what parts of the business were suffering? A.
Well, basically – you know, again I don’t recall specifically, you know, which of our, you know,
products or customers were worse off than others but throughout the winter, you know, snack
foods generally decline in sales so that was our primary – that is the company’s primary
business. Q. Were you part of any discussions about how much of this slowdown was simply
due to the season and it would pick up in the summer? A. Again I don’t recall specifically, you
know, that was part of it.”

The Respondent’s president, Tom Howe, testified that he did not make the decision that
the permanent layoffs were necessary, but did make the decision to change from four 12-hour
shifts to three 8-hour shifts. Howe testified as follows as to the basis of his decision to change
the shift structure: “There was a two-fold reason. One was the seasonal reduction in demand
for snack food products, principally through our major snack customers. Secondly is both the
Old Dutch and Weight Watchers sales volume, regardless of seasonality, had fallen off

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substantially.” In answer to a later question, Howe testified, “The seasonal slow-down had very
little to do with the permanent change in the production schedule.”

As to the Weight Watchers business, Howe testified as follows: “The Weight Watchers
new products that we introduced in mid-2004 were anticipated achieving a certain sales volume
level, on a sustained basis, even giving consideration for seasonality. They were not successful
in the marketplace. Therefore, the sales had dropped substantially and ultimately were
discontinued.” Howe testified that the Weight Watchers product was discontinued in the first
quarter “thereabouts” of 2005. When asked if he had any discussions with Weight Watchers
about the success and volume of the product, Howe testified, “Yes. I speak with their key
people, Stacy Gordon and David Rosenfeld, at least weekly, and they provide us sales data.”
When asked at what point those discussions involved any consideration of stopping the Weight
Watchers products completely, Howe testified, “It would have been shortly after Christmas of
’04, when the targeted sales volume for the product at their locations was falling rapidly.” When
asked by the undersigned when the first such discussion occurred about the total
discontinuation of the Weight Watchers product, Howe testified, “I don’t recall.”

As to the Old Dutch business, Howe testified that customer Old Dutch’s product volume
was down 20 percent from the year before, a time at which the Respondent had not yet
acquired Old Dutch as a customer. Howe testified that he was provided the sales information
by Matt Colford of Old Dutch, and that Old Dutch “at that time was about 35 percent of our total
sales, and their sales were down about 20 percent from prior year, actual.” My attempts to elicit
from Howe the dates of any conversations with Old Dutch officials as to their sales was as
follows: “Q. Do you recall when this conversation was? A. It was in 2000 – late 2004 and
2005. Q, Can you be any more specific? A. I have conversations weekly with our
customers…. Q. Okay, and those discussions would have occurred when? A. In late 2004,
early 2005. Q. Do you remember when the first such discussion was? A. No.”

Howe testified that he was present at multiple conversations over 3 weeks with Mayer
and Lepak at which the subject of the shift structure was discussed. Howe then testified as
follows in response to the questions of the Respondent’s counsel: “Q. As part of the discussion
of the number of jobs on each shift, to the best of your recollection, was there any discussion in
any of those meetings about the need for any layoffs? A. Yes. Q. Now, to the best of your
recollection, what specifically was said, and by whom? A. That there would be less jobs, less
positions required, since we were contracting from these four shifts to three shifts.” Howe’s
failure to fully answer this question casts further doubt on his credibility, at least in respect to the
quality of his recollections.

As discussed above, Mayer testified that he attended discussions with Howe, Lepak,
and Jackson during the week of January 24. Mayer testified that at these meetings, Howe said
that the Respondent “needed to cut back.” Counsel for the general counsel asked Mayer
whether Howe, at these meetings, gave any reasons why he expected a slowdown. In
response, Mayer testified, “He talked about customers, what he had heard from them. Called it
a cyclical drop late January after Super Bowl.” Mayer testified, as to these crucial meetings at
which layoffs were allegedly discussed, that there were no notes taken during the meetings, no
agendas prepared for the meetings, no e-mail messages announcing the meetings or detailing
what took place at the meetings, and no documents reflecting what took place at the meetings
or when the meetings occurred. Finally, Mayer testified, in response to counsel for the General
Counsel’s question, that he made a search of the Respondent’s records for documents
reflecting a drop in future orders, but couldn’t find any such documents.

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Thus, while Howe testified that the downturn in sales of Weight Watchers and Old Dutch
products were the main impetus for the layoff decision, Lepak, and Mayer, quoting Howe,
placed the blame on the yearly cyclical downturn. I found Lepak and Mayer to be generally
reliable witnesses. Howe was not as impressive a witness both in demeanor and in his lack of
detailed recollections as to the dates when significant events occurred and of the details of
significant meetings, as is demonstrated by some of his quoted testimony above. His answers
were frequently not directly responsive to questions.92 Finally, the Respondent produced no
documents detailing what took place at the meetings or when the meetings occurred.

In support of its economic defense to the layoff allegation, the Respondent produced
very limited financial records or other documents at the hearing. The Respondent introduced a
document (Respondent exhibit 146) consisting of three charts made by its customer Weight
Watchers, showing sales and forecasted sales of its snack products baked by the Respondent.
The third Weight Watchers chart shows that its sales of products produced by the Respondent
were in the 75,000 to 125,000 pound range as the products were being rolled out in May
through November, 2004, climbed to over 450,000 pounds upon full distribution in December,
2004, fell to about 350,000 pounds in February, 2005, fell again to about 250,000 pounds in
March, 2005, rose to about 300,000 pounds in April, 2005, and were forecast for period May
through September to be in the monthly range of 200,000 pounds.

Howe testified that he received the third chart from Weight Watchers in April, 2005,
some 2 months after the permanent layoffs, and did not know when he received the other two
charts. Howe did not unequivocally testify that he specifically relied on the Weight Watchers
documents in reaching his decision to change the shift structure, but did testify that he would
have relied on Weight Watchers provided documents, “. . . if Weight Watchers would have
provided us, which they periodically (sic), depending upon which meeting you are referring to,
information regarding how the volume is tracking versus their expectation.”

The Respondent also introduced a three page document (Respondent Exhibit 143), the
first two pages of which were computer generated on March 3, 2006, and show for the months
June through December 2004, both the monthly totals and the grand totals for the period of the
Respondent’s sales, by pound, to customer Old Dutch. Page three of the document, showing a
computer generated date of January 29, 2004, consists of the Respondent’s planned sales to
Old Dutch, by weight, for the months of April through December 2004. This document shows
that the Respondent’s actual sales to Old Dutch, by weight, were below the planned sales for
every month from June through December, except September, but does not show a particular
crisis period at the end of 2004. Thus, relying on the Respondent’s document, the actual sales
by pound to Old Dutch was 18.8 percent below plan in October, 12.2 percent below plan in
November, and 8.2 percent below plan in December. This document does not cover the
January 2005 period leading up to the layoff, but the October through December results show
that, instead of a crisis, the sales versus planned sales to Old Dutch were improving in the
period immediately preceding the layoff.

The final document introduced by the Respondent (Exhibit 144) in support of its
economic defense is a computer generated printout identified by Howe as a report of the
Respondent’s actual sales, both by weight and dollar, by product and customer, and
cumulatively, versus planned sales, on a monthly, and year-to-date basis, beginning with the 4-
week period ending January 28, 2005, and ending with the 4-week period ending May 27, 2005.
Because this document does not contain any sales data for 2004 or prior years, it does not

92 Here, as elsewhere, for the discussed reasons, I do not credit Howe.

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present a picture of the months leading up to the layoff or allow comparison to a comparable
period in 2004 or earlier years. The document, thus, does not allow comparison to prior years
when the Respondent did not permanently lay off employees and when the cyclical seasonal
slowdowns also afflicted the Respondent.

But the Respondent’s exhibit 144, like exhibit 143, does not demonstrate an
extraordinary crisis situation in respect to the Respondent’s sales in January or February 2005.
For January, the Respondent’s sales to Old Dutch, the customer cited by Howe along with
Weight Watchers, was actually 3.5 percent higher by weight than planned, and equal to the plan
in dollar sales. Sales to Weight Watchers by revenue, the second customer cited by Howe,
were down 26 percent from the plan. The Respondent’s overall sales by revenue during
January were 16 percent lower than planned sales. Then, in February, the month in which the
layoffs occurred, overall sales by both revenue and weight were higher than planned sales, and
sales to Weight Watchers by weight also exceeded the plan, while sales to Old Dutch by
revenue and weight were substantially below the plan. In March, the Respondent’s sales, by
revenue, were 12.3 percent below the plan. In April, revenue sales were 46.8 percent below the
plan, due substantially to a shortfall in Weight Watchers revenue. In May, revenue sales were
59 percent below the plan.

Respondent’s exhibit 144 also appears, to some extent, inconsistent with admissions
contained in its counsel’s position statement to the Board during the investigation of the
charges. Thus, the exhibit shows that the Respondent’s grand total of sales by weight for the 4
weeks ending January 28 as 1,034,000 pounds. The exhibit contains no breakdown by
individual week. The position statement (General Counsel’s Exhibit 103), states as follows on
page 3: “In the week ending January 7, 2005, Baptista’s produced 302,155 pounds of product.
The following week it produced 369,798 pounds. The week ending January 21, the Company
produced 364,875 pounds. The following week, a marked decline began. In the week ending
January 28, 2005, Baptista’s produced only 281,420 pounds of its product.” Adding these 4
weeks as set forth in the position statement, totals 1,318,248 pounds of product, as opposed to
the exhibit which shows a total of 1,034,000 pounds. The record contains no further explanation
as to which figure is accurate, if either, and the brief of the Respondent’s counsel does not
address this inconsistency. Absent such an explanation, I decline to rely on either document.

Thus, the record contains a paucity of contemporaneous documents in which the
Respondent sets forth either a decision to lay off employees or the reasons for such layoffs, or
financial documents which demonstrate some sort of sales or other financial crisis which would
have reasonably incited the Respondent to engage in an extraordinary permanent layoff of
employees . There is, however, a lone contemporaneous document in which the Respondent
does, in fact, state its asserted reason for the layoffs, the February 2 memo from Howe to “All
Shop Employees.” The memo begins: “As all of you have noticed from our work activity, we
are experiencing the annual post-holiday lull in orders that always affects the snack industry,
something I explained in my notice of July 9, 2004, when announcing our change to a 7/24 two-
week rotation. This slowdown is common throughout the snack industry, and snack companies
typically adjust their work schedules, reduce their work weeks, and schedule plant shutdowns.”

The memo discusses the shift changes and the layoffs, in pertinent part as follows: “The
second step we’ve taken, and one that we regret was necessary, is the layoff of some members
of our workforce to reflect our current and near-term business level and added capacity going
forward. These involved tough decisions, we provided those people some assistance to help
during their transition to new opportunities, and our focus was on retaining people possessing
the skills, knowledge, flexibility, reliability and attitude that provide the best foundation for
building for the future.” (emphasis in original). The memo continues, “Please do not read

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anything into these changes beyond it being a temporary seasonal adjustment.
(emphasis supplied). Our business is growing, we have made significant investment in baking
and packaging equipment to foster that growth, and potential customers are excited about what
Baptista’s (sic) to offer.” Thus, this memo, the only contemporaneous document from
Respondent in the record, unequivocally points to the normal seasonal slowdown as the reason
for the layoffs. It assures employees that the problem is only “current and near-term.”

The Respondent, in its counsel’s brief, argues that Howe principally relied on the alleged
sales problems affecting its products produced for Weight Watchers and Old Dutch in reaching
his decision to change the Respondent’s shift structure. More specifically as to Weight
Watchers, the Respondent’s brief asserts that “Howe had weekly conversations with Weight
Watchers’ representatives who monitored the sales and quality of Baptista’s products,” and that
“The products Baptista’s made for Weight Watchers sold below expectation.” The brief further
asserts that “in December of 2004, Weight Watchers told Mr. Howe it was evaluating whether to
discontinue those products altogether,” and “In the first quarter of 2005, Weight Watchers did
just that.” More specifically as to Old Dutch, the brief asserts that Howe relied on his
conversations with Old Dutch officials to reach a conclusion that its product requirements “would
remain lower than the volume he had projected originally.”

These arguments as to both the Weight Watchers and Old Dutch business are
unpersuasive. First, as to Howe’s conversations with Weight Watchers officials, Howe, himself,
testified that he didn’t recall when the first discussion with Weight Watchers as to discontinuing
its products occurred. The brief asserts that the Weight Watchers products were totally
discontinued in the first quarter of 2005, but the Respondent’s exhibit 143 shows sales
continuing to Watch Watchers through the end of the exhibit, the week ending May 27, 2005.
As to his conversations with Old Dutch officials, Howe testified that he didn’t recall when he had
the first such conversation.

Based upon the above, I conclude that the few financial records introduced by the
Respondent during the hearing do not support its implied argument that by late January or early
February, the Respondent’s sales and projected sales were in a crisis situation. Further, the
lack of any records whatsoever as to who made the decision to permanently lay off employees
and when such decision was made or a firm timeline for such decision, together with the
conflicting and indefinite testimony of the Respondent’s witnesses as to these issues, precludes
me from reaching conclusions as to who made the decision to lay off employees, when the
decision was made, or any firm timeline for the decision.

The Respondent also argues that its permanent layoff of employees in 2002, well before
any union activity, set a precedent for the February layoffs at issue here. In fact, in November
and December 2002, the Respondent permanently laid off about 11 employees who were
assigned to work on the “Lunch Muncher” product, which the Respondent produced for a
customer. When the customer completed discontinued this product line, the Respondent
reacted by permanently laying off the employees engaged in producing the product. Other than
the February layoffs at issue here, the 2002 layoffs are the only time that the Respondent has
permanently laid off employees since Baptista’s was founded in 1999.

The Respondent’s argument, that its 2002 layoffs set a precedent for the layoffs at issue
here, is not persuasive. The 2002 layoffs were a result of a customer totally discontinuing a
product, and the Respondent reacted by laying off employees involved in producing that
product. In the instant case, no product was discontinued at the time of the February layoffs,

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and I found that the evidence demonstrated that at the time of the layoffs, the Respondent was
simply experiencing its normal seasonal downturn.93 Even if there was evidence that the
Respondent relied on the documents introduced at the hearing in respect to customers Weight
Watchers and Old Dutch, those documents do not demonstrate a crisis in January or February.
Indeed, the only momentous event occurring at the time of the early February layoffs was the
Union’s organizational drive. Various witnesses testified, without contradiction, that in prior
years when the seasonal slowdowns occurred, the Respondent avoided layoffs, by assigning
employees to cleaning duties, and Mayer testified that the Respondent dealt with prior cyclical
slowdowns by various methods, including stopping production for a period of time, temporarily
laying off employees, and reducing the number of temporary workers.94

Based upon the above discussion, and the record as a whole, the Respondent has not
met its Wright Line burden of demonstrating that it would have engaged in the February 2
permanent layoffs, notwithstanding the union activities of some of its employees. Since I have
already concluded that the General Counsel has met its initial Wright Line burden, I further
conclude that the Respondent’s February 2 permanent layoffs of employees Sobiech, Crowley,
Bohen, Starrett, and Zullner violated Section 8(a)(3) of the Act, as alleged in the complaint.

CONCLUSIONS OF LAW

1. The Respondent is engaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By permanently laying off Dennis Sobiech, John Crowley, George Ann Bohen, Lynda
Starrett, and Judy Zullner, on February 2, 2005, the Respondent has been discriminating in
regard to the hire or tenure or terms and conditions of employment of its employees, thereby
discouraging membership in a labor organization in violation of Section 8(a)(1) and (3) of the
Act.

93 Howe testified that the Weight Watchers line was eventually discontinued, although the
Respondent’s own records produced at trial show continued sales to Weight Watchers through
the middle of 2005. But even if said business was eventually discontinued, it had not been
discontinued at the time of the layoffs nor immediately thereafter.
94 The Respondent’s continued use of temporary workers after the layoffs, casts additional
doubt on the asserted economic basis for the layoffs. The General Counsel introduced
business records from two staffing companies which provided temporary workers to the
Respondent, both before and after the layoffs, which demonstrate that the Respondent’s usage
of temporary workers continued on nearly the same basis after the layoffs as it had before.
Credited and uncontradicted testimony of witnesses for the General Counsel established that
many of the temporary workers were performing the same work as had been performed by laid
off workers. In its brief, the Respondent argues that “it is meaningless to compare Baptista’s
use of temporary employees in 2005 to any prior period” because some of the temporary
employees were utilized short-term in 2005 to prepare for the AIB audit, and because since
2004 the Respondent’s “customer base and product mix has continued to evolve” causing
fluctuation in its need for temporary employees, and finally because the Respondent’s need for
temporary workers fluctuates “based on its customer mix and production capabilities.” But the
records introduced by the General Counsel show continued use of temporary employees after
the layoffs on a basis akin to their usage earlier in 2005, prior to the layoffs.

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4. The following employees of the Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All full-time and regular part-time baking process operators,
including lead baking process operators, material handlers,
maintenance mechanics, quality technicians, packaging machine
operators, including lead packaging machine operators, sanitation
specialists and sanitors, and shipping and receiving clerks
employed by the Respondent at its Franklin, Wisconsin facility;
excluding office clerical employees, guards and supervisors as
defined in the Act.

5. By the following actions, on about the dates95 set forth herein, the Respondent has
interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the Act by the following actions in respect to
its employees:

(a) On February 18, and about March 1, 2005, solicited grievances and made
promises of benefits.

(b) About March 9, 2005, promised benefits.

(c) About February 15, 2005, made threats including loss of benefits and plant
closure.

(d) About February 15, 2005, told employees that if a union was chosen, bargaining
would start from “zero.”

(e) About February 22, 2005, told an employee that he was not receiving a pay raise
because of the union organizational campaign.

(f) About February or March 2005, told assembled employees that the Respondent
could not grow with a union and wanted to move ahead with employees with good attitudes, and
in mid-February 2005, told an employee that the Respondent had good workers who didn’t
complain.

95 Some of the dates of alleged illegal actions were not specifically pleaded in the complaint.
Some others that were specifically pleaded were supported by evidence that either
demonstrated they occurred on different dates or on indefinite dates. However, all of the
allegations were fully litigated and the Respondent fully cross-examined all of the witnesses of
the General Counsel, and engaged all of the allegations with a full defense. The Respondent
does not argue, nor do I perceive, any lack of due process because certain of the dates proved
were different than the dates pleaded, or that a date definite could not be established for certain
of the violations. In my findings and conclusions I have attempted to set the dates as best
established by the evidence, but because these events occurred some time before litigation and
the recollections by some witnesses were not precise as to date, I have not been able to
determine precise dates as to some of the violations found. Nevertheless, all of the violations
found occurred after the inception of the Union’s organizational campaign and/or during the
Board’s critical period after the petition was filed and before the election was final.

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(g) On March 17, 2005, told assembled employees that sales had grown and bringing
in a union would wreck the progress.

(h) On May 1, 2005, provided employees and their guests with the benefit of an
outing to a Major League Baseball game, which included free tickets and food.

(i) On March 28, 2005, provided employees with the benefit of an “employee-of-the-
year” award, which included a $500 gift certificate.

(j) On February 21, 2005, posted, restated, and repromulgated its no-solicitation/no
distribution rule in response to a union organizing drive.

(k) On a date in June 2005, provided employees the benefit of free dinners at
restaurants to employees and their guests.

(l) On May 10, 2005, solicited grievances from its employees with implied promise of
resolution, by distributing surveys to employees and providing a gift certificate for completion
and return of the surveys.

6. The unfair labor practices set out in paragraphs 3 and 5, above, affect commerce
within the meaning of Section 2(6) and (7) of the Act.

7. The Respondent, in no manner other than that specifically found herein, including any
other manner alleged in the complaint, has violated the Act or engaged in objectionable
conduct.

8. By the unfair labor practices found above, relating to the objection filed by the Union,
and the following lettered objections set forth in the Regional Director’s Order Consolidating
Cases and Notice of Hearing on Challenges and Objections to Conduct Affecting the Results
of the Election: A, B, C, D, F, and H, the Respondent has engaged in objectionable conduct
likely affecting the outcome of the election held March 23, 2005, and requiring that the results
of the election be set aside and a rerun election directed, should the counting of certain
challenged ballots, ordered herein, not result in a certification of the Union. The appropriate
unit for the election is the same unit previously found appropriate in the representation case,
as set forth above.

9. Employees George Ann Bohen and Judy Zullner, whose ballots were challenged at
the election herein, were eligible voters. Employee Kathi Szuszka, whose ballot was
challenged at the election herein, was not an eligible voter.

10. None of the allegations of the amended consolidated complaint are precluded by
Section 10(b) of the Act.

THE REMEDY

Having found that the Respondent has engaged in certain unfair labor practices in
violation of Sections 8(a)(1) and (3) of the Act, as is set forth above, it will be ordered to cease
and desist therefrom and from any like or related conduct. Having found that the Respondent
has unlawfully permanently laid off the five employees named in the conclusions of law, it will be
ordered to offer them immediate and full reinstatement to their former positions of employment
or, if those positions are no longer available, to substantially equivalent ones without prejudice
to their seniority or any other rights or privileges they may have previously enjoyed and make

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them whole for any loss of earnings and benefits they may have suffered by reason of the
Respondent’s discrimination against them. Backpay will be computed in accordance with the
Board’s decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). Further, the Respondent will be
ordered to remove from its files any references to the unlawful permanent layoffs and notify said
employees that it has done so and will not use their layoffs against them in any way.

In respect to the representation case, it will be ordered that the ballots of George Ann
Bohen and Judy Zullner be opened and counted, and a revised tally of ballots be prepared and
served upon the parties. If the revised tally shows that the Union has received a majority of the
votes cast, the Regional Director shall issue a certification of representative. If the revised tally
shows that the Union has not received a majority of the votes cast, the election shall be set
aside and a rerun election shall be conducted. In conformance with this decision, the
Respondent’s challenge to the ballot of Kathi Szuszka is sustained and the Respondent’s
challenges to the ballots of George Ann Bohen and Judy Zullner are overruled. Should a rerun
election be held, the election notice will include Lufkin96 language.

On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended97

ORDER

The Respondent, Baptista’s Bakery, Inc., its officers, agents, successors, and assigns,
shall

1. Cease and desist from

(a) Soliciting and offering to remedy employee grievances and promising improved
benefits because of its employees’ union activities.

(b) Telling employees that if they choose a union to represent them, bargaining would
start from zero.

(c) Threatening employees that they would lose benefits or the plant would close if
they choose a union to represent them.

(d) Telling employees that the reason they did not receive a pay raise was because of
a Union’s organizational campaign.

(e) Telling employees that the Respondent could not grow with a union.

(f) Telling employees that the Respondent wanted to move ahead with employees
with good attitudes or that the Respondent had good workers who didn’t complain.

(g) Telling employees that choosing a union would wreck the Respondent’s progress.

96 The Lufkin Rule Co., 147 NLRB 341 (1964).
97 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the Board shall, as provided in Sec. 102.48 of the Rules, adopt the findings,
conclusions, and recommended Order and all objections to them shall be deemed waived for all
purposes.

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(h) Providing employees with benefits including, but not limited to, free baseball
tickets, food, restaurant meals, or employee-of-the-year awards with prize, in order to
discourage support of a union.

(i) Distributing surveys for employees to complete, which solicit grievances with an
implied promise of resolution.

(j) Posting, restating, or repromulgating the Respondent’s no-solicitation, no-
distribution rule in response to a union organizational campaign.

(k) Permanently laying off employees because of the union activities of employees.

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

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

(a) Within 14 days from the date of this Order, offer full reinstatement to Dennis
Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, and Judy Zullner to their former
jobs or, if those jobs no longer exist, offer them substantially equivalent positions, without
prejudice to their seniority and other rights or privileges previously enjoyed.

(b) Make whole employees Dennis Sobiech, John Crowley, George Ann Bohen,
Lynda Starrett, and Judy Zullner for any loss of earnings and other benefits suffered as a result
of the discrimination against them. Backpay is to be computed as set forth in the remedy
section.

(c) Within 14 days from the date of this Order, remove from its files any reference to
the permanent layoffs of employees Dennis Sobiech, John Crowley, George Ann Bohen, Lynda
Starrett, and Judy Zullner, and notify each of them in writing within 3 days thereafter that this
has been done and that evidence of the unlawful actions will not be used against them.

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

(e) Within 14 days after service by the Region, post at its Franklin, Wisconsin facility
copies of the attached notice marked “Appendix.”98 Copies of the notice, on forms provided by
the Regional Director for Region 30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the

98 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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notices are not altered, defaced, or covered by any other materials. In the event that, during the
pendency of the proceedings, the Respondent has gone out of business or closed the facility
involved in this proceeding, the Respondent shall duplicate and mail, at its expense, copies of
the notice to all employees and former employees of the Respondent at any time since
February 11, 2005.

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

3. It is further ordered in respect to the election held in Case 30–RC–6604 that the
challenged ballots of George Ann Bohen and Judy Zullner be opened and counted, and a
revised tally of ballots be prepared and served upon the parties. If the revised tally shows that
the Union has received a majority of the votes cast, the Regional Director shall issue a
certification of representative. If the revised tally shows that the Union has not received a
majority of the votes cast, the election shall be set aside and the case remanded to the Regional
Director for Region 30 for the purpose of conducting a rerun election, as set forth below. If a
rerun election is held, the election notice shall contain Lufkin99 language. The challenges to the
ballots of George Ann Bohen and Judy Zullner are overruled. The challenge to the ballot of
Kathi Szuszka is sustained. Consistent with the findings herein, the objections lettered E, G,
and I, are overruled, and the Union’s objection and objections lettered A, B, C, D, F, and H are
sustained.

4. It is further ordered that Case 30–RC–6604 be severed from the consolidated unfair
labor practice cases, and be remanded to the Regional Director for Region 30 for handling
consistent with this Order, including the conducting of a second election, if necessary, as set
forth below.

DIRECTION OF SECOND ELECTION

A second election by secret ballot shall be held, if necessary under the terms of the
Order, among the employees in the unit found appropriate, whenever the Regional Director
deems appropriate. The Regional Director shall direct and supervise the election, subject to the
Board's Rules and Regulations. Eligible to vote are those employed during the payroll period
ending immediately before the date of the Notice of Second Election, including employees who
did not work during the period because they were ill, on vacation, or temporarily laid off. Also
eligible are employees engaged in an economic strike that began less than 12 months before
the date of the first election and who retained their employee status during the eligibility period
and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military
services may vote if they appear in person at the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the payroll period, striking employees who have
been discharged for cause since the strike began and who have not been rehired or reinstated
before the election date, and employees engaged in an economic strike that began more than
12 months before the date of the first election and who have been permanently replaced. Those
eligible shall vote whether they desire to be represented for collective bargaining by Teamsters
Local Union No. 344 Sales and Service Industry, affiliated with the International Brotherhood of
Teamsters.

99 The Lufkin Rule Co., supra.

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To ensure that all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
directed that an eligibility list containing the full names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The
Regional Director shall make the list available to all parties to the election. No extension of time
to file the list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed.

Dated, Washington, D.C. December 22, 2006

_____________________
Mark D. Rubin
Administrative Law Judge

JD–87–06
Franklin, WI
APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union.
Choose representatives to bargain on your behalf.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these activities.

WE WILL NOT solicit your grievances and offer to remedy them, by survey or otherwise, in
order to discourage your support of a union.

WE WILL NOT promise improved benefits in order to discourage your support of a union.

WE WILL NOT tell you that if you choose a union, bargaining will start at zero.

WE WILL NOT threaten that you will lose benefits or we will close the plant if you choose a
union.

WE WILL NOT tell you that the reason you did not receive a pay raise is because of a union
organizational campaign.

WE WILL NOT tell you, or imply, that the company cannot grow if you choose a union or that
choosing a union would wreck the company’s progress.

WE WILL NOT imply that by not supporting a union or not complaining about your terms and
conditions of employment we will consider you a good employee, by telling you that we have
good workers who don’t complain, or that the company wants to move forward with employees
with good attitudes.

WE WILL NOT provide you with benefits including, but not limited to, a free Major League
Baseball outing including food, restaurant meals, or an employee-of-the-year award and prize,
in order to discourage you from supporting a union.

WE WILL NOT post, restate, or repromulgate our no-solicitation, no-distribution rule in response
to a union organizational campaign.

WE WILL NOT permanently lay off employees because of your activities in support of a union.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the National Labor Relations Act.

JD–87–06
Franklin, WI
WE WILL, within 14 days from the date of the this order, offer full reinstatement to Dennis
Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, and Judy Zullner to their former
jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously enjoyed.

WE WILL make whole Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, and
Judy Zullner for any loss of earnings and other benefits suffered as a result of the discrimination
against them, with interest.

WE WILL, within 14 days from the date of this order, remove from our files any reference to the
unlawful layoffs of Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, and Judy
Zullner, and we will, within 3 days thereafter, notify each of them in writing that this has been
done and the layoffs will not be used in any way against them.

BAPTISTA’S BAKERY, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
310 W. Wisconsin Ave., Milwaukee, Wisconsin, Suite 700
(414) 297-3861
Hours: 8:00 a.m. to 4:30 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER.