Bon Appetit Management Co.

National Labor Relations Board - Board Decisions

Aug 10, 2001

334 N.L.R.B. 1042 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
Bon Appetit Management Co. and Service Employ-
ees’ International Union, Local 50, AFL–CIO.
Cases 14–CA–25308 and 14–RM–712
August 10, 2001
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On February 1, 2000, Administrative Law Judge Kelt-
ner W. Locke issued the attached decision. The Respon-
dent-Employer filed exceptions, supporting brief and a
reply to the General Counsel’s answering brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision, Order, and Certification of Results of Elec-
tion.
The judge found that the Respondent violated Section
8(a)(1) of the Act by interrogating an employee about the
employee’s union membership, activities, and sympa-
thies, and by threatening that employee with a decrease
in wages if she chose to be represented by the Union.3
We agree with the judge’s finding, for the reasons set
forth in his decision.
The judge also sustained union election Objection 1,
alleging noncompliance with Excelsior4 list require-
ments, and Objection 4,5 alleging that the foregoing un-
fair labor practice interfered with the election. As more
fully set forth below, we disagree. Stated briefly, we
find that Objection 1 lacks merit and that the unfair labor
practice cited in Objection 4 does not rise to the level of
conduct affecting the election. Accordingly, we overrule
the Union’s objections and issue a Certification of Re-
sults of Election.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 There were no exceptions to the judge’s recommended dismissal of
the remaining unfair labor practice allegations.
4 Excelsior Underwear, 156 NLRB 1236 (1966).
5 The judge recommended overruling the Union’s remaining election
objections. There were no exceptions to this recommendation.
The Objections
Objection 1
In its Objection 1, the Union contends the Employer
did not timely provide the Region with a voter eligibility
list which satisfied the requirements of the Board’s Ex-
celsior rule.
The judge found that the September 29, 1998 list,
which the Employer timely provided the Region, identi-
fied eligible voters by their address, last name, and first
name initial, rather than by their address and complete
first and last names as required in North Macon Health
Care Facility, 315 NLRB 359 (1994). The judge further
found that the Employer provided the Region with a cor-
rected list on September 30, 1998, which included em-
ployees’ first names. As to this corrected list, the judge
found that the Employer supplied it to the Region 1 day
after the deadline, and 9 days before the election. The
judge additionally found that the Union received the cor-
rected list late in the afternoon of September 30, and that
the unit was a large one (approximately 200 employees).
He acknowledged that the vote was not close.6 Simi-
larly, the judge acknowledged that the Employer offered
to delay the election for a sufficient amount of time to
cure any claimed prejudice to the Union arising from its
late receipt of the revised list.
Under these facts, the judge concluded that the Em-
ployer had engaged in objectionable conduct. Although
the judge determined that the Employer’s omission of
first names from the September 29 eligibility list was an
inadvertent error, he found that the Employer’s good
faith was irrelevant. He then concluded that the timely
filed September 29 list did not satisfy Excelsior require-
ments, and that the September 30 corrected list likewise
did not substantially comply with the Excelsior rule. On
the latter point, the judge particularly relied on the facts
that: the unit was large and spread over several locations;
the corrected list was not provided to the Region at least
10 days before the election, as specified in the Board’s
Casehandling Manual (Part Two, Representation Pro-
ceedings, Sec. 11302.1); and the Union was not required
to postpone the election in order to correct the Em-
ployer’s error. Accordingly, the judge recommended
setting aside the election.
The Employer excepts, arguing that the omission of
first names from the September 29 list was due to inad-
vertent error, and that there is no evidence that the Union
was prejudiced as a result of this technical defect or by
the slight delay in receiving the corrected list. The Em-
ployer also notes that since the Board’s Casehandling
6 The Union received 21 votes, compared to 123 against it, and there
were 17 nondeterminative challenged ballots.
334 NLRB No. 130
BON APPETIT MANAGEMENT CO. 1043
Manual anticipates that the Region will send the Excel-
sior list to unions by certified mail, rather than fax, the
Union likely received the corrected September 30 list as
soon or sooner than it would have received the Septem-
ber 29 list, had it been mailed. The Employer further
argues that it offered to delay the election in order to cure
any claimed prejudice, but the Union refused its offer,
and the Region did not take the lead by postponing the
election. Arguing for the application of a “rule of rea-
son,” the Employer argues that Objection 1 should be
overruled. Under the particular circumstances of this
case, we find merit in the Employer’s exceptions.
The relevant inquiry in cases where there has been a
delay in providing the Excelsior list is whether the delay
interfered with the purposes behind the Excelsior rule,
i.e., to provide employees with the full opportunity to be
informed of the arguments concerning representation,
“by giving unions the right of access to employees that
employers already have, thus enabling employees to hear
not just the employer’s views, but also the union’s argu-
ments in support of unionization.” Special Citizens Fu-
tures Unlimited, 331 NLRB 160 (2000). In this respect,
whether the Employer acted in good faith and in substan-
tial compliance with the Excelsior rule is “not the rele-
vant inquiry,”7 rather, it is whether “the purposes behind
the Excelsior requirement of providing employees with a
full opportunity to be informed of the arguments con-
cerning representation have been frustrated.” Id.
In this case, when all of the facts are considered, we
cannot say that the important statutory goal set forth in
Excelsior, of providing the opportunity for employees to
be fully informed about the arguments concerning repre-
sentation, has been frustrated. The facts in this case are
markedly different from the facts in Special Citizens Fu-
tures Unlimited, supra, where the Board found that the
purposes behind Excelsior were frustrated. In that case,
the Regional Office delayed mailing the letter informing
the employer that the election agreement was approved,
and thus the employer had only 1 day to submit its Ex-
celsior list. Thus, the employer did not submit its list
until after the close of business on the due date, which
was a Friday, and the regional office was not able to fax
it to the union’s counsel until the following Monday, 3
days later. The first list provided by the employer set
forth only employees’ last names and initials. Although
the employer submitted a corrected list, the regional of-
fice did not submit it to the union’s counsel until the next
day, and never informed him that it was intended to su-
persede the original list. Thus, the union’s counsel never

7 Compare, Woodman’s Food Markets, 332 NLRB (2000) (discuss-
ing “substantial compliance” test when names of eligible voters are
omitted from Excelsior list).
forwarded it to the union’s organizing staff for use in the
campaign. And because of the regional office delays in
transmitting the list, the union’s counsel did not have a
complete and accurate list until several days after the
employer submitted its original list to the region. Id.
In contrast, in this case, although the original list sup-
plied by the Employer did not contain full first names of
employees, as required by North Macon, supra, this mis-
take was corrected the next day, and the Regional Office
immediately faxed a corrected list to the Union. The
Union had full use of this list to communicate with unit
employees for only 1 day less than if the Employer’s
original, timely list had been complete and accurate. In
addition, the employee vote against representation was
not close. Under these circumstances, we conclude that
the minimal delay in providing the Union with a com-
plete and accurate list did not interfere with the purposes
behind the Excelsior rule. Accordingly, we overrule this
objection.8
Objection 4
In its Objection 4, the Union contends that the election
should be set aside based on the same misconduct that is
found to have violated Section 8(a)(1). This 8(a)(1) con-
duct consists of the Employer’s supervisor, John Turner,
asking employee Edna Wade—during the critical pe-
riod—how she was going to vote in the election and stat-
ing that, if Wade voted for the Union, her pay would be
cut. The judge found that this conduct was objectionable
as well as unlawful under Section 8(a)(1) as an unlawful
interrogation and threat to reduce Wade’s benefits.
In its exceptions, the Employer contends that Turner
never interrogated or threatened Wade. It further con-
tends that even had it violated Section 8(a)(1), as alleged,
this conduct did not disrupt the laboratory conditions of
the election. Specifically, the Employer argues that
Turner’s allegedly unlawful statements were made by a
low-level supervisor to a single employee, 2 to 3 weeks
prior to the election, and at a site that was not “the locus
of management authority.” The Employer further notes
that the unit was large (approximately 200 employees),
the statements were not disseminated, and the vote mar-
8 In reaching this determination, we recognize that the Employer’s
initial list was incomplete and did not substantially comply with the
Excelsior requirements, as set forth in North Macon Health Care Facil-
ity, supra. Had the case stopped at this point, it may well be that a new
election would have been directed, even had the error been inadvertent
rather than intentional, and even had the Union neither claimed nor
established prejudice. We further recognize that had the Employer
merely provided a correct, but untimely, list, a different result might
obtain. Nor would the fact that the Employer offered to postpone the
election, standing alone, necessarily nullify the Union’s objection. As
discussed, however, this case is in a different posture.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
gin was such that the comments could not have affected
the results of the election.
We find merit to the Employer’s exceptions. Al-
though, as found above, the Employer violated Section
8(a)(1) during the critical period, we do not find that this
conduct warrants setting aside the election. “[I]t is the
Board’s usual policy to direct a new election whenever
an unfair labor practice occurs during the critical period
since ‘[c]onduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the exercise of a free and
untrammeled choice in an election’.”9 [Emphasis in
original.] The only exception to this policy is “where the
misconduct is de minimis: ‘such that it is virtually im-
possible to conclude’ that the election outcome has been
affected.”10 In determining whether misconduct could
have affected the results of the election, the Board has
considered the number of violations, their severity, the
extent of dissemination, and the size of the unit.11 Other
factors the Board considers include the “closeness of the
election, proximity of the conduct to the election date,
[and the] number of unit employees affected.” Detroit
Medical Center, 331 NLRB 878 (2000) (citations omit-
ted). Thus, in Coca-Cola Bottling Co., 232 NLRB 717,
718 (1977), the Board declined to set aside the election
despite 8(a)(1) violations consisting of interrogations
affecting 2 employees out of a unit of 106 employees.12
Here, the Employer engaged in the above described
8(a)(1) conduct involving, as found by the judge, a su-
pervisor “low in the management hierarchy” and one
employee, 2 weeks prior to the election. The incident
occurred at the employee’s regular work station, rather
than “in a locus of management authority.” Given the
isolated nature of the misconduct, especially in the con-
text of the large size of the unit, the lack of evidence of
any dissemination, and the sharply lopsided vote, we find
it “virtually impossible” to conclude that the Employer’s

9 Clark Equipment Co., 278 NLRB 498, 505 (1986), quoting Dal-
Tex Optical Co., 137 NLRB 1782, 1786 (1962).
10 Sea Breeze Health Care Center, 331 NLRB 1131 (2000), quoting
Super Thrift Markets, 233 NLRB 409 (1977). Member Hurtgen does
not pass on whether the “virtually impossible” standard is the correct
one.
11 Super Thrift Markets, supra. See also Caron International, Inc.,
246 NLRB 1120 (1979).
12 This case is distinguishable from Spring Industries, 332 NLRB
(2000), where the Board majority found that threats of plant closure
required setting aside an election because such threats were presumed
to have been disseminated among unit employees. Such presumption
does not apply to the instant threat made to one employee to reduce her
wages.
Chairman Hurtgen, who dissented in Spring Industries, would not
presume dissemination of any threats but would look to the actual re-
cord facts. Here, the facts show that the threat of a wage reduction was
not disseminated.
8(a)(1) conduct could have affected the results of the
election. Accordingly, we shall overrule Objection 4.
Having concluded that the Union’s Objections 1 and 4
lack merit, we shall certify the results of the election.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 and renumber the subse-
quent paragraph.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bon Appetit Management
Co., St. Louis, Missouri, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Service Employees’ International
Union, Local 50, AFL–CIO and that it is not the exclu-
sive representative of these bargaining unit employees.

CHAIRMAN HURTGEN, concurring.
I agree with the result reached by my colleagues, but I
differ with them in one respect. My colleagues appear to
draw a distinction between compliance with the substan-
tive requirements of the Excelsior list and compliance
with the timeliness of that list. In their view, substantial
compliance will satisfy the former but not the latter. In
my view, the distinction is not valid. The issue is
whether there has been substantial compliance with the
Excelsior rule.1 The rule includes the time requirements.
In the instant case, there was substantial compliance with
these requirements. The Employer filed a timely list on
September 29 which, through inadvertence [and not bad
faith], failed to comply with North Macon;2 this mistake
was immediately corrected; the Union was faxed the cor-
rected list on September 30, 9 days before the election
rather than the required 10 days; the Employer offered to
postpone the election to compensate for the Union’s de-
lay in receiving the corrected list; the Union rejected this
offer; there was neither claim nor evidence that the Un-
ion was prejudiced by the delay—indeed, it successfully
communicated with employees using the corrected list;
and the employees vote was lopsided against union rep-
resentation.
In these circumstances, there was substantial compli-
ance with the rule. In addition, applying my colleagues’
test, the purposes of the rule have been satisfied.
1 See Telonic Instruments, 173 NLRB 588 (1968).
2 North Macon Health Care Facility, 315 NLRB 359 (1994)..
BON APPETIT MANAGEMENT CO. 1045
Kathy Talbott–Schehl, Esq., for the General Counsel.
Alan S. Garber, Esq. (The Garber Law Firm), of Alameda,
California, for the Respondent.
Michael T. Finneran, Esq. (Wilburn, Suggs & Watkins), of St.
Louis, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this
matter, unfair labor practice allegations in Case 14–CA–25308
have been consolidated with objections to the conduct of an
election in Case 14–RM–712. I find that Bon Appétit Man-
agement Co. (the Respondent or the Employer) unlawfully
interrogated an employee about the employee’s union member-
ship, activities, and sympathies, and unlawfully threatened an
employee with a decrease in wages if employees chose union
representation, but did not violate the Act in other ways alleged
in the complaint. I also find that Respondent engaged in certain
objectionable conduct, and recommend that the Board set aside
the representation election conducted on October 9, 1998, and
direct that a new election be conducted.
Procedural History
In June 1998, Respondent began operating food service fa-
cilities at Washington University in St. Louis, Missouri. Previ-
ously, the Marriott Company had operated these facilities, and
the Charging Party, Service Employees International Union,
Local 50, AFL–CIO (the Union) had represented a unit of food
service workers.
When Respondent took over operation of the food services
facilities, its representatives interviewed and hired job appli-
cants, including a number of the employees who had worked
for Marriott Company at the same location. However, the
complaint in this case does not allege that Respondent meets
the legal definition of successor, and similarly, does not allege
that Respondent had an obligation to recognize and bargain
with the Union.
On September 3, 1998, after the Union sought to represent a
unit of food service employees similar to the unit it had repre-
sented when Marriott Company operated the facilities, Respon-
dent filed a petition with the St. Louis Regional Office of the
National Labor Relations Board (the Board) in Case 14–RM–
712.
On October 2, 1998, the Union filed the original unfair labor
practice charge in Case 14–CA–25308. It alleged that Respon-
dent had interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act. More
specifically, it alleged that Respondent’s supervisors had ques-
tioned employees about how they intended to vote in the repre-
sentation election, and had informed employees “that scheduled
and promised raises could not be given during the organizing
campaign.”
Pursuant to a Stipulated Election Agreement, the Board con-
ducted an election on October 9, 1998, in the following appro-
priate collective-bargaining unit:

All full time and regular part–time food service employees
and drivers employed by the Employer at its Washington
University facility, EXCLUDING office clerical and profes-
sional employees, casual, on call temporary and student em-
ployees, guards and supervisors as defined in the Act.

At the conclusion of the election, the tally of ballots showed
the following results:

Approximate number of eligible voters 186
Void ballots 0
Votes cast for Service Employees’
International Union, Local 50,
AFL–CIO 21
Votes cast against participating
labor organization 123
Valid votes counted 144
Challenged ballots 17
Valid votes counted plus
challenged ballots 161

The number of challenged ballots was not sufficient to affect
the results of the election. However, on October 15, 1998, the
Union filed timely objections.
On November 16, 1998, the Union amended its charge
against the Respondent in Case 14–CA–25308. The amend-
ment added the allegation that Respondent had told its employ-
ees that wages would decrease if employees chose to be repre-
sented by a labor organization.
On November 17, 1998, the Regional Director for Region 14
of the Board, on behalf of the General Counsel, issued a com-
plaint against Respondent in Case 14–CA–25308. Respondent
filed a timely answer to the allegations in this complaint on
December 3, 1998.
On November 19, 1998, the Regional Director issued an or-
der, granting the Union’s request to withdraw one of its objec-
tions in Case 14–RM–712, and consolidating the remaining six
objections in that case with the unfair labor practice allegations
in Case 14–CA–25308.
On February 10, 1999, the General Counsel, by the Regional
Director for Region 14, amended the complaint in Case 14–
CA–25408. On February 22, 1999, Respondent filed a timely
answer to this amendment to the complaint.
On March 11 and 12, 1999, I heard the consolidated cases in
St. Louis. Thereafter, the parties filed briefs, which have been
considered carefully.
FINDINGS OF FACT
I. STATUS OF THE PARTIES
As alleged in the complaint and admitted by Respondent, I
find that the Union filed the original charge in Case 14–CA–
25308 on October 3, 1998, and that a copy was served by regu-
lar mail on Respondent on October 7, 1998. Similarly, I find
that the Union filed an amended charge in Case 14–CA–25308
on November 16, 1998, and served it by certified mail on Re-
spondent on November 17, 1998.
Respondent has also admitted that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of Act. I so find.
Paragraph 4A of the complaint alleges that certain individu-
als are supervisors of the Respondent within the meaning of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
Section 2(11) of the Act, and its agents within the meaning of
Section 2(13) of the Act. Respondent has admitted these alle-
gations. Accordingly, I find that, at all material times, the fol-
lowing persons were supervisors and agents of Respondent:
Tom Bergin (general manager of St. Louis operations); Robert
J. Mansco (initially, as general manager of the “Bear’s Den”
cafeteria and later, as manager of another dining facility also
located at Washington University); Diane E. Paisley (director
of employee services); Ralph K. Pfremmer (food and beverage
director for the South Campus area at Washington University);
John Turner (unit manager at “Cafe Olin,” also called the “Olin
Cafeteria” at Washington University); Roland Ybarra (food and
beverage director for the North Campus area at Washington
University).
Paragraph 4B of the complaint alleges that at all times mate-
rial, Carlos Rojas has been an agent of Respondent within the
meaning of Section 2(13) of the Act. Respondent’s answer
admits this allegation, and I so find.
Paragraph 4C of the complaint alleges that “at all material
times Charlie, whose last name is presently unknown” to the
Regional Director “has been an agent of Respondent within the
meaning of Section 2(13) of the Act.” Respondent’s answer
denies this allegation. Based on the record as a whole, I find
that the General Counsel has not proved this allegation.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Complaint Paragraph 5A
Complaint paragraph 5A alleges that about “September 30,
1998, at Respondent’s St. Louis facility, Respondent, by Food
and Beverage Manager Pfremmer, told an employee that Re-
spondent could not give employees raises before the Board
election.”
To prove this allegation, the Government called Marva
Louise Tate, who had worked for Marriott when that company
was operating the dining facilities at Washington University.
As Respondent prepared to take over the food service opera-
tions, Tate applied for a job.
According to Tate, she attended a job interview with one of
Respondent’s managers, Robert Mansco, in June 1998. She
testified that Mansco offered her a job as head baker in one of
the facilities, but she then told him she could not bake “from
scratch,” a requirement for that position. In Tate’s words,
Mansco responded, “[W]ell, okay, then I will make you head
cashier in the Bear’s Den.”
Tate testified that Mansco said that the cashier position only
paid $9 per hour, but then told her “we evaluate our workers
and at three months you will be evaluated and you will get a
raise at that time.” According to Tate, 4 or 5 days after the
interview with Mansco, she went to work for Respondent.
Mansco’s testimony conflicts with Tate’s. He denied con-
ducting a job interview with Tate, although he admitted inter-
viewing other applicants. However, both Tate and Mansco
agree that during the first months of her employment, Mansco
was Tate’s supervisor.
Mansco testified that he recalled Tate “vividly” and that his
relationship with her was “adversarial initially” but got better
over time. He denied ever telling Tate that she would get more
money after 90 days of employment or after her 90-day evalua-
tion. “In a real world context,” Mansco explained, “[Y]you
know who your adversaries [are] so you don’t say anything to
them.”
For two reasons, I do not credit Mansco’s testimony where it
conflicts with that of Tate. According to Tate, Mansco made
the statement that she would get a raise after 3 months during a
job interview before Respondent hired her. At that time,
Mansco would not have known that Tate would have the “ad-
versarial” attitude he described. Indeed, if she had displayed
such an attitude during the job interview, it seems unlikely that
Respondent would have hired her. Mansco’s explanation, that
“you know who your adversaries are” and therefore keep quiet,
would not apply to the statements he made during the job inter-
view.
Moreover, Mansco’s testimony on direct examination admit-
ted that when he interviewed prospective employees, he did
allude to the possibility of a raise after 90 days.

Q. Was there any discussion about what would happen
to their pay at the end of 90 days?
A. Well, it was pretty generic and the generic part of it
was simply this. There were no guarantees, but excellence
might be rewarded, so that was essentially it.

Telling a potential employee that, although there were no
guarantees “excellence might be rewarded” after 90 days, in the
context of what would happen to the employee’s pay, certainly
holds out the possibility of a raise. Further, it associates the
prospect of a raise with the 90-day job evaluation.
According to Tate, when she did not receive an evaluation
after 90 days, she asked Mansco about it, but he told her that he
was being promoted and was not her manager anymore. She
brought up the matter with a manager named “Ralph,” whose
last name she could not pronounce. Based on the entire record,
I find that this person was Ralph K. Pfremmer, food and bever-
age manager for the South Campus area.
Tate testified that she asked Pfremmer “when would I be get-
ting an evaluation and that I was told that I would be evaluated
and given a three month’s raise. And he said at that time that
they were not going to be giving out any evaluations because of
the election that was coming up with Local 50 and they would
not be giving any raises because the Labor Board would frown
on it as being a bribe.”
Pfremmer’s testimony contradicts Tate’s. When asked by
Respondent’s counsel whether Tate ever asked him for a raise
during the time period July 1 to September 30, 1998, Pfremmer
answered as follows:

A. Whether or not she asked for a raise, I assume she
was asking for an evaluation. They were in the 90-day
orientation time at the time, so if she had asked me I
would have responded that after her 90 days she would get
an evaluation for her 90-day period, orientation period.
Q. You never told her that she would receive a raise?
A. No, because it is not the way we did it.
Q. Did she tell you that she was promised a raise after
90 days?
A. No.
Q. Did any employees ask you if they would get a
raise after 90 days?
BON APPETIT MANAGEMENT CO. 1047
A. You know, I think I was asked from time to time,
when do I get a raise, Ralph, when do I get a raise? I
wasn’t the one that did the evaluations oftentimes, but I
would respond by a 90-day period you are going to receive
an evaluation and it doesn’t necessarily mean you are go-
ing to get an increase.

Although Pfremmer testified on direct examination that Tate
never told him she had been promised a raise, on cross-
examination it became clear that he had little recollection of his
conversation with her.
Q. Is it your testimony that you are not sure if Ms. Tate
asked you about a raise?
A. She very well could have. I interpreted her ques-
tion, if she were to ask it—
Q. What did she ask you?
A. I don’t remember exactly what she asked me. I re-
member some dialogue with some employees, they were
asking about evaluations.

To the extent that Pfremmer’s testimony conflicts with
Tate’s, I do not credit it. Pfremmer did not appear to have a
clear memory of the conversation with Tate. The conditional
nature of his testimony—that if Tate had asked him for a raise,
he would have responded that after 90 days, she would receive
an evaluation—suggests that it is not very reliable.
Moreover, Pfremmer’s testimony that “[w]hether or not she
asked for a raise, I assume she was asking for an evaluation” is
puzzling. Pfremmer did not explain why, if Tate asked him one
question, he would assume that she was really asking another
question. Such an assumption does not make sense, and raises
further doubts about Pfremmer’s reliability as a witness. For
these reasons, where Pfremmer’s testimony conflicts with
Tate’s, I credit Tate’s.
Therefore, I find that, about September 30, 1998, Pfremmer
told Tate that because of the union representation election,
Respondent would not be giving any raises “because the Labor
Board would frown on it as being a bribe.”
Respondent contends, in effect, that it gave the new employ-
ees no reason to associate the 90-day evaluations with the pos-
sibility of raises. Respondent’s director of employee services,
Diane Paisley, testified that the initial 90 days of employment
constitute a probationary period, and supervisors evaluate em-
ployees at the end of this period to determine whether they will
be retained, not to determine whether the employee’s pay
should be increased. She further testified as follows:

Q. Are they promised an increase in pay at any time?
A. No.
Q. Are they promised in an increase in pay at any
time—90 days or at any time?
A. No.

Noting that its employee handbook mentions the possibility
of a raise after 1 year of employment but contains no statement
that employees would or could receive a raise after the first 3
months on the job, Respondent argues that employees had no
reason to believe their pay might increase after their 90-day
evaluations. For the following reasons, I do not find Respon-
dent’s argument persuasive.
First, Paisley was not in a position to know what interview-
ers actually said to job applicants. She works at Respondent’s
headquarters in Menlo Park, California, not in St. Louis.
Second, the fact that the Respondent’s employee handbook
does not mention that employees could receive a raise after 90
days does not rule out that possibility. Its silence on the sub-
ject would not lead employees to believe that they were ineligi-
ble for raises after the first 3 months, particularly if a supervisor
had informed them of that possibility. In other words, nothing
in the employee handbook would call into question a supervi-
sor’s statement that an employee would be eligible to receive a
raise after that worker’s 90-day evaluation.
Third, the general manager of the Respondent’s operations at
Washington University, Thomas Bergin, testified that although
there is no company policy regarding pay raises after 90 days,
“there may be merit increases” for exemplary employees. Ber-
gin’s testimony is consistent with the information which Man-
ager Mansco provided to Wade at the time she was hired.
Mansco testified that during the hiring process, he told the new
employees that there “were no guarantees, but excellence might
be rewarded.” Thus, employees clearly knew that there was a
possibility of a pay increase after the 90-day evaluation.
Finally, it should be noted that the complaint does not allege
that Respondent had failed to give employees raises it had
promised them. Similarly, the General Counsel does not seek
an order that Respondent grant the employees 90-day raises
retroactively. The General Counsel does not even seek an order
requiring Respondent to decide whether each employee should
receive a raise based upon that employee’s 90-day evaluation.
Rather, the Government only alleges that Respondent inter-
fered with, restrained, and coerced employees in the exercise of
protected rights by telling them, in effect, that they would not
receive raises after 90 days because of the upcoming represen-
tation election. On this issue, whether Respondent customarily
did or did not grant raises after 90 days is beside the point.
An employer’s policy and past practice in granting pay in-
creases become central when the Government alleges that the
employer has withheld a raise for an unlawful reason, such as
to discourage union activity. But the complaint in this case
does not allege such a violation. Respondent’s official policy
regarding the timing of pay increases has less relevance to the
question presented here: What did Respondent tell employees
about pay raises during the meetings it conducted before the
election?
Stated another way, what the Respondent told new employ-
ees about the timing of pay increases neither proves nor dis-
proves what the Respondent later said during employee meet-
ings before the election. At most, evidence concerning Re-
spondent’s announced pay raise policy only relates to the ex-
pectations the employees had.
Conceivably, such evidence might be relevant to determining
the coercive impact of a statement that raises had been post-
poned because of the upcoming representation election. In
other words, it could be argued that if an employee believed
that he could not receive a raise until he had worked for Re-
spondent a year, he would not be coerced when told that he
would not receive a raise after only 3 months.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
The record here does not support such an argument. No evi-
dence suggests that Respondent told new employees that they
would not be eligible for a raise after 90 days.
Very significantly, Paisley’s own testimony undercuts the
argument that employees had no reason to associate the 90-day
evaluation with an opportunity to receive a pay increase. Spe-
cifically, Paisley testified as follows during cross-examination:

Q. Did you tell as best you can recall what you actu-
ally told the employees?
A. Yes, I told them that we had spoken with our attor-
neys and they had suggested that it would be better for us
to suspend the evaluation period at this time because if we
were to go ahead and give a merit increase for someone
who deserved it, it would be considered a bribe and they
would file an unfair labor practice charge against us. So
we were going to suspend this until after the election.

If the Respondent’s own attorneys believed a 90-day evalua-
tion could result in a merit increase—and according to Paisley’s
testimony, they did—then it is quite reasonable to assume that
the employees believed the same thing. Certainly, the record
gives no reason to conclude that Respondent would tell its law-
yers one thing and its workers another.
Paisley’s testimony leads to the conclusion that Respondent
did not suspend the 90-day evaluations because these evalua-
tions were bad per se, but because they could result in pay
raises. As a high-ranking human resources official at Respon-
dent’s home office, Paisley certainly should know. If Respon-
dent itself considered a 90-day evaluation to be a predicate to a
merit pay increase, its argument to the contrary is not very per-
suasive.
The portion of Paisley’s testimony quoted above also bol-
sters Tate’s version of her conversation with Pfremmer. The
words which Tate attributed to Pfremmer are remarkably simi-
lar. According to Tate, Pfremmer explained that “they would
not be giving any raises because the Labor Board would frown
on it as being a bribe.” Those words echo Paisley’s explanation
that “if we were to go ahead and give a merit increase for
someone who deserved it, it would be considered a bribe.”
The evidence clearly establishes that Respondent advised
Tate, before she began work, that she would be evaluated after
3 months and, depending on her work performance, Respon-
dent might give her a raise. The evidence also establishes that
after Tate had worked for 3 months, Pfremmer told her that
Respondent was not giving out evaluations “because of the
election that was coming up with Local 50” and that Respon-
dent “would not be giving any raises because the Labor Board
would frown on it as being a bribe.” I so find.
The Board’s general rule is that an employer’s legal duty
during a preelection campaign period is to proceed with the
granting of benefits just as it would have done had the Union
not been on the scene. See, e.g., American Telecommunications
Corp., 249 NLRB 1135 (1980). If an employer withholds wage
increases or accrued benefits because of union activities, and so
advises employees, it violates the Act. Liberty House Nursing
Home, 236 NLRB 456 (1978). However, where employees are
told that expected benefits are being deferred pending the out-
come of an election to avoid the appearance of election inter-
ference, the Board will not find a violation. Reno Hilton Re-
sorts, 320 NLRB 197 (1995), citing Truss–Span Co., 236
NLRB 50 (1978).
That principle applies here. In effect, Respondent told em-
ployees that it postponed their 90-day evaluations because, in
view of the upcoming election, the Board would consider any
resulting raise to be a “bribe.” This message is equivalent to a
statement that expected benefits were being deferred to avoid
the appearance of election interference.
I recommend that the allegations in complaint paragraph 5A
be dismissed.
B. Complaint Paragraph 5B
Complaint paragraph 5B alleges that during the period Sep-
tember 26 through October 7, 1998, at employee meetings at its
St. Louis facility, Respondent, “by Director of Employee Ser-
vices Paisley and agents Rojas and Charlie, told employees
there would be no evaluations or raises until after the Board
election.”
Witness Rose Marie Nance, an employee of Respondent, at-
tended an employee meeting on September 26, 1998, conducted
by persons who identified themselves as “Carlos” and “Mi-
chael.” Nance testified that the employees asked when they
would get a pay raise, and “Michael” replied, “that they
couldn’t give a raise at that time because the election was going
on and it looked like they were being bought or bribing the
employees so wasn’t anyone getting a raise at that time.”
Nance testified that employees also asked when they would
get a pay raise at a second employee meeting which Nance
attended before the election. This second meeting took place
on October 1, 1998. Although the first meeting had taken place
at a food service facility called “Ike’s Place,” employees went
to a different location, Freeman’s Lounge, for the second meet-
ing.
According to Nance, employees again asked when they
would be receiving raises. She quoted “Michael” as answering
that no one could get a raise at that time, “because it would
look like they were being bribed so you couldn’t get—so you
had to wait for—until the—the election was over.”
Employee Ben Stewart corroborated Nance’s testimony,
quoting Michael as stating that “they couldn’t give an evalua-
tion at this time and raises because it would be considered as a
bribe.”
Respondent’s director of employee services, Diane Paisley,
testified that she and Carlos Rojas were both in the room the
first time employees asked about when they would receive
raises. On this occasion, they replied that they would ask, pre-
sumably meaning that they would ask higher management, and
would get back to the employees.
According to Paisley, the next time the subject of raises
came up at one of the employee meetings, she answered by
saying, “[W]e are going to take the conservative route and wait
till after the election.” As quoted above, she further explained
that granting a merit increase would be considered a bribe and
that “they,” presumably meaning the Union, would file an un-
fair labor practice charge.
It is clear that, in making this statement to employees, Pais-
ley was acting as an agent of Respondent within the meaning of
BON APPETIT MANAGEMENT CO. 1049
Section 2(13) of the Act. Before conveying this information to
employees, she had conferred with counsel, and, in fact, told
the employees that “we had spoken with our attorneys” about
the matter, the “our” plainly referring to Respondent.
Respondent required its employees to attend these meetings
while on working time. Clearly, they would view Paisley as
Respondent’s spokesperson. I find that she had both the actual
and apparent authority to speak on behalf of Respondent, and
was acting as its agent.
Carlos Rojas did not testify and neither did the person identi-
fied in the complaint as “Charlie.” Another spokesman at the
employee meetings, a man identified as “Michael,” did testify.
He gave his name as Michael Dana Penn, and his occupation as
“human resources labor relations consultant.” At hearing, the
parties stipulated that Penn was an agent of Respondent within
the meaning of Section 2(13) of the Act, and I so find.
Penn described himself as an independent contractor retained
by the Respondent to hold meetings with employees; at these
meetings, he explained the election procedure to employees and
presented the Respondent’s position regarding unionization.
He met with groups of about 20 employees at a time, and held
three rounds of meetings. Each employee attended three sepa-
rate meetings.
It appears that Penn did not attend all of the meetings. He
was not present the first time an employee asked about a pay
raise, but Paisley and Rojas, who conducted that meeting, told
Penn about it later. Penn testified that this question prompted a
discussion with the Respondent’s lawyer:

A. We then had a discussion—when I say we, includ-
ing counsel, including you, Mr. Garber, Diane, Carlos and
I, to discuss exactly what the company’s strategy should
be.
. . . .
Q. You said once this inquiry came up there was a dis-
cussion between you and corporate management and
counsel. Tell me, as a person who has been in this field
for almost twenty years and have had a great deal of ex-
perience in labor campaigns, what was your professional
opinion as to what the company should do or how they
should respond to these questions?
A. My professional opinion during and after the dis-
cussions was that we needed to preserve the laboratory
conditions during the campaign, that if we went ahead and
did actual carrying out the performance evaluations and if
someone were to be let go or disciplined in any way that
ended up being a union supporter or if somebody who had
gone above and beyond the call of duty were given an in-
crease, that that would be considered as a bribe and that it
would almost assuredly bring a ULP. It was my opinion
that we should take the high road, the more conservative
approach, since there was no guaranteed increase anyway
and wait and do the evaluations after the election since it
was so close to the election, anyway.
. . . .
Q. You said a little while ago that in some of these
employee meetings these questions came up to you and
how did you respond to these employees during the meet-
ings?
A. Well, in fact, pretty much as I have just explained
here. In fact, went into a fair amount of detail in stating to
the employees that, No. 1, company policy was that there
would be evaluations at the end of the orientation period,
not pay increases. That because of the nearness to the
election the company did not want to take any action that
would prejudice the outcome of the election and therefore
the evaluations would be done after the election took
place.

Here, the testimony of witnesses called by both sides has
painted a consistent picture. I find that during the meetings
before the election, employees asked when they would get
raises. In response, speakers for the Respondent answered that
they could not give raises at that time because it might be con-
sidered a “bribe.” On occasion, a company spokesperson might
reply to the question concerning wages by stating, as Penn testi-
fied, that evaluations would not be conducted until after the
election to avoid prejudicing the outcome. In context, this
statement conveyed essentially the same message, because the
employees understood that evaluations came before raises.
For the same reasons discussed above regarding complaint
paragraph 5A, I find that the Respondent’s statements do not
violate the Act. Reno Hilton, supra, 320 NLRB 197, Truss–
Span Co., supra, 236 NLRB 50. I recommend that the allega-
tions in complaint paragraph 5B be dismissed.
C. Complaint Paragraph 5C
Complaint paragraph 5C alleges that about October 2, 1998,
at Respondent’s St. Louis facility, Respondent, by Manager
Turner (i) interrogated an employee about the employee’s un-
ion membership, activities, and sympathies and (ii) threatened
an employee with a decrease in wages if employees chose to be
represented by the Union.
Employee Edna Wade testified that a couple of weeks before
the election, she was working as a cashier when a supervisor,
Joan Turner, approached and asked Wade how she was going to
vote in the representation election. Wade replied that she didn’t
know yet. According to Wade, the supervisor also said that if
Wade voted for the Union, her pay would be cut, but did not
explain this statement or specify how large the cut would be.
Turner specifically denied ever asking Wade about her union
sympathies and also denied telling Wade that if she voted for
the Union, her pay would be cut.
Based on my observations of the witnesses, I have some
concern about the reliability of Wade’s memory. On the other
hand, Turner’s responses during cross-examination undercut
her credibility. At one point, Turner denied ever talking about
the Union with Wade. However, she then stated that Wade
talked about the Union briefly but that “I just listened.” Turner
then admitted she told some employees that she would consider
support for the Employer to be the same as support for her.
These shifts damage Turner’s credibility to a greater extent
than Wade’s apparent memory problems cast doubt on her ve-
racity. Any hesitation displayed by Wade in recalling facts
reasonably may be attributed to a desire to remember what
happened as clearly as possible and to testify truthfully.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
Turner’s reluctance in admitting she talked with employees
about the Union cannot easily be attributed to an effort to be
exact.
Therefore, I credit Wade rather than Turner. I find that on
about October 2, 1998, or shortly before that date, Turner did
interrogate an employee about union activities, and did threaten
the employee with a reduction in wages if the employee voted
for the Union, as alleged in complaint paragraph 5C.
I will evaluate the interrogation using criteria applied by the
Board in Rossmore House, 269 NLRB 1176 (1984). The re-
cord does not disclose a history of discrimination against em-
ployees because of their union activities. In this instance, the
questioner was low in the management hierarchy and she inter-
rogated Wade at Wade’s workstation, not in a locus of man-
agement authority. The record does not indicate that the ques-
tioning took place in an atmosphere of unnatural formality.
These factors weigh against a finding that the interrogation was
coercive and therefore violative.
From the record, it is difficult to determine whether Wade
replied to the question truthfully. Wade’s answer, that she did
not know yet how she would vote, can best be described as
noncommittal. This factor weighs neither for nor against find-
ing a violation.
On the other hand, the fact that Turner also threatened Wade
with a reduction in wages creates the impression that Turner
was seeking to know how Wade would vote so she could im-
pose discipline for voting the wrong way. Applying the
Board’s objective standard, I find that the coupling of the ques-
tion and the threat reasonably would have an intimidating and
coercive effect on the voter.
The seriousness of this coercion outweighs the other factors,
discussed above, which did not militate toward finding a viola-
tion. How an employee will vote in a representation election is
both sensitive and private, and lies at the core of Section 7
rights. When a supervisor asks an employee how she will vote,
and threatens a reprisal in virtually the same breath, there can
be no doubt that these statements interfere with, restrain, and
coerce that employee in the exercise of protected rights. I find
that Respondent violated the Act as alleged in complaint para-
graph 5C.
D. Complaint Paragraph 5D
Complaint paragraph 5D alleges that on October 7, 1998, at
Respondent’s St. Louis facility, Respondent, by St. Louis Gen-
eral Manager Bergin, told an employee there would be no raises
given during the time period surrounding the Board election.
Employee Edna Wade testified that about 2 days before the
election, she encountered Manager Bergin in the hallway and
asked him when she would be getting a raise. According to
Wade, Bergin said that there would not be any raise until after
the election.
Wade also testified that in a meeting shortly before the elec-
tion, Bergin made a similar statement, that there would be no
raises until after the election.
Initially, Wade testified that no one explained to her, at any
time, why the employees would not receive raises before the
election. However, on further examination, Wade testified that
she did not remember.
Bergin testified that in the days before the election, he never
had a one-on-one meeting with Wade with respect to employee
evaluations or wages. It is not clear from Bergin’s testimony
whether, during an employee meeting, he said that there would
be no raises before the election. His testimony on direct ex-
amination indicates that someone told employees that there
would be no evaluations before the election, but is unclear as to
who made that statement.

Q. So the evaluations were then suspended pending the
election?
A. They were. In one of the sessions it came out that
we told the employees that we would do the evaluations,
that we had the process begun and were ready to continue
when we got time.
Q. It would as soon as the election was over?
A. Correct.

Bergin’s testimony on cross-examination acknowledges that he
was the person who made the “in process” statement to em-
ployees:

Q. So then in another meeting that you had which you
refer to as a 24-hour meeting that you conducted?
A. Correct.
Q. That is where you told employees that you were go-
ing to give them evaluations?
A. Well, it was at the end of the meeting and they said,
are we going to get our evaluations? I said, we are in the
process.

Based on my observations of the witnesses, I credit Wade
rather than Bergin. Although Wade did not know the exact
date of her hallway conversation with Bergin, this uncertainty
does not cast doubt on her testimony about the substance of the
conversation.
Cross-examining Wade, Respondent sought to establish that
the conversation with Bergin could not have taken place at the
time Wade testified, when she was on the way to the employee
meeting at which Bergin spoke. However, Bergin’s testimony
about the time of this meeting is confusing.
To explain an apparent inconsistency between his testimony
and his pretrial affidavit, Bergin drew a distinction between the
meeting he referred to as the “24-hour meeting” and the other
employee meetings Respondent held before the election, meet-
ings which Bergin referred to as “campaign meetings.” Ac-
cording to Bergin, there were about 30 of these other meetings.
But then, Bergin referred to a meeting which was “a combina-
tion of the last 30 period meetings and the 24–hour meeting.”
Although Bergin’s explanation may have extricated him
from a conflict between his testimony and his pretrial affidavit,
it caused some confusion about the scheduling of the various
meetings. In view of this confusion, I must reject Respondent’s
claim that it was impossible for Wade to have met Bergin in the
hallway at the time she said that meeting took place.
Wade’s recollection may not have been eidetic, but it was
certainly credible. She attributed to Bergin a statement about
company policy which was, in fact, an accurate description of
company policy. Wade quoted Bergin as telling her that there
would not be any raises before the election. Uncontroverted
BON APPETIT MANAGEMENT CO. 1051
evidence establishes that the Respondent had made exactly this
decision, and had communicated it to the employees.
There is also a conflict as to what Bergin told employees at
the meeting 2 days before the election. Bergin only admitted
telling employees that there would be no evaluations before the
election. However, to some extent, his testimony lacked the
directness and simplicity which gave Wade’s account the ring
of truth.
Crediting Wade’s testimony, I find that Bergin did tell her,
on about October 7, 1998, that she would not receive a raise
before the representation election. Further, I credit Wade’s
testimony that, in an employee meeting on about October 7,
1998, Bergin told employees that there would be no raises be-
fore the election.
Because Wade testified that she did not remember whether
employees were given an explanation for postponement of the
evaluations and possible raises, I do not rely on her testimony
with respect to this issue. The overwhelming weight of evi-
dence indicates that during the employee meetings, Respon-
dent’s representatives did explain that it was deferring the
evaluations and possible raises because, if given before the
election, the Board might consider it a “bribe.” I find that to be
the case.
Whether Bergin gave Wade such an explanation during the
one-on-one meeting in the hallway is more difficult to deter-
mine. Wade testified that he did not explain the reason for the
delay in evaluations and possible raises. Bergin denied having
such a conversation at all, and I believe his failure to recall it
results from its brevity. To Bergin, busy with other things, it
was not memorable.
Wade initiated the conversation with Bergin in the hallway
when she was leaving work. I find that it consisted of a short
question about whether or not the employees would be getting
raises before the election, and an equally short answer as both
Bergin and Wade hastened to their destinations. Considering
the brevity of this encounter, it is likely that Bergin did not
offer an explanation, and I find that he did not.
However, Respondent required the employees, including
Wade, to attend the meetings at which its representatives did
give the explanation described above. These meetings were
close in time to the casual conversation Wade and Bergin had
in the hallway. Therefore, I do not conclude that Bergin’s fail-
ure to include an explanation when he answered Wade’s ques-
tion in the hall conveyed any sense of retaliation against the
Union for filing the representation petition. Similarly, I cannot
find that Begin’s hurried “no,” in response to Wade’s question,
placed blame on the Union for the delay.
Therefore, I conclude that Respondent did not violate Sec-
tion 8(a)(1) of the Act, as alleged in complaint paragraph 5D. I
recommend that these allegations be dismissed.
III. OBJECTIONS TO THE ELECTION
A. Objection 1
Objection 1 states, in pertinent part, that the Employer “pro-
vided to the Union a list of employees in the bargaining unit
which listed only last names within the applicable period.”
For clarity, it is helpful to begin with a brief summary of
Board policies. In Excelsior Underwear, 156 NLRB 1236
(1966), the Board established a rule requiring an employer to
file with the Regional Director an election eligibility list con-
taining the names and addresses of all eligible voters within 7
days after approval by the Regional Director of an election
agreement or after a direction of election. If the payroll period
for eligibility purposes is subsequent to the election agreement
or direction of election, the list must be filed within 7 days after
the close of the determinative eligibility period.
To be timely, the eligibility list (“Excelsior” list) must be re-
ceived by the Regional Director within the required time; no
extension of time is granted except in extraordinary circum-
stances. Failure to comply with this rule is deemed interference
with the election and a ground, on proper objection, for invali-
dating the election.
Although the submission of an inaccurate, incomplete, or
late list may provide a basis for invalidating an election, it
nonetheless depends on the specific factual circumstances. The
Board has stated that there is “nothing in Excelsior which
would require the rule stated therein to be mechanically ap-
plied.” Telonic Instruments, Inc., 173 NLRB 588 (1968). The
Board stated later, in Ponce Television Corp., 192 NLRB 115,
116 (1971), that it was not its policy “to vest the Employer with
unlimited discretion with respect to the content of the eligibility
list.”
With respect to Objection 1, the Employer denied that it had
engaged in objectionable conduct. However, it does not dispute
certain facts.
Uncontroverted evidence establishes that the Employer ini-
tially submitted to the Regional Office an Excelsior list which
identified the employees by last name but provided only an
initial instead of a first name. This list was timely. In fact, the
Employer submitted it on the last day for timely filing, Septem-
ber 29, 1998.
However, the failure of this list to include first names made
it incomplete. Compliance with the Excelsior rule requires that
the employer provide the full first and last name of the employ-
ees. Laidlaw Waste Systems, 321 NLRB 760 (1996), North
Macon Health Care Facility, 315 NLRB 359 (1994), and Wey-
erhaeuser Co., 315 NLRB 963 (1994). Therefore, I find that
the Employer did not submit a timely Excelsior list which com-
plied with the Board’s requirements.
After the Regional Office notified the Employer that the Ex-
celsior list omitted first names, the Employer sent the Board’s
Regional Office a corrected list by facsimile. The Regional
Office received this corrected list on September 30, 1998, a day
after it was due. The Union’s director of organizing, Charles
Hatcher, credibly testified that the Union received the corrected
list, by facsimile from the Regional Office, late in the afternoon
on September 30, 1998.
The Employer also offered to postpone the date of the elec-
tion so that the Union would have the names and addresses of
eligible voters for additional time. However, as the Union’s
director of organizing testified, it declined this offer.
The Employer contends that it omitted the first names by
mistake, and no evidence contradicts this assertion. All the
circumstances, and particularly the speed with which the Em-
ployer provided a corrected list, discussed below, persuades me
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
that the omission of first names from the initial list was an in-
advertent error.
Notwithstanding this factual determination, to the extent that
an employer’s good faith or bad faith is relevant, the omission
of first names from the Excelsior list creates, in effect, a pre-
sumption of bad faith which precludes a finding of substantial
compliance with the Board’s requirements. Thus, in North
Macon Health Care Facility, supra, the Board stated, “[W]e
shall view the submission of an Excelsior list containing only
last names and first initials as evidence of a bad-faith effort to
avoid the obligations the Excelsior rule imposes.”
In the same decision, the Board also stated, “[W]e hold that
an employer’s failure to provide the full first and last names of
employees is a deviation from the Board’s policy that an em-
ployer must ‘substantially comply’ with the Excelsior rule and
tends to interfere with a free and fair election.” See also Laid-
law Waste Systems, supra, and American Biomed Ambulette,
Inc., 325 NLRB 911 fn. 3 (1998) (Board found it “unnecessary
to pass on the hearing officer’s finding that the employer acted
with bad faith or gross negligence in failing to provide a com-
plete and accurate list of eligible voters”).
Therefore, I find that the Employer’s submission of the in-
complete Excelsior list on September 29, 1998, did not consti-
tute substantial compliance with the Board’s Excelsior rule.
The Employer did comply with the rule when it submitted a
corrected list on September 30, 1998, a day after the deadline.
Accordingly, I must decide whether this untimely submission
of the Excelsior list constitutes substantial compliance with the
Board’s requirements.
In Pole-Lite Industries, Ltd., 229 NLRB 196 (1977), the
Board found that the employer had substantially complied with
the Excelsior requirement even though the Excelsior list had
been submitted 3 calendar days and 1 working day late. In
Auntie Anne’s, 323 NLRB 669 (1997), the employer submitted
the Excelsior list 12 days late. The Board set aside the election
and directed that a new election be held.
In the present case, the Employer submitted the corrected
Excelsior list, containing both first and last names of employees
on September 30, 1998, 1 day after it was due, and 9 days be-
fore the election. The Union received it late in the afternoon of
the same day.
In Alcohol & Drug Dependency Services, 326 NLRB 519
(1998), the Board stated that “the relevant inquiry is whether
the delay—however caused—interfered with the purpose be-
hind the Excelsior requirements of providing employees with a
full opportunity to be informed of the arguments concerning
representation, so that they can fully and freely exercise their
Section 7 rights. Mod Interiors [324 NLRB [163] (1997)].
Here, we find that the delays, which resulted in the Union’s
receiving the list only 5 days before the election, interfered with
this purpose. . . . In reaching this result, we also rely on the
facts that unit employees are dispersed over five locations, the
unit is relatively large, and the vote was extremely close.”
(Footnotes omitted.)
In the present case, the unit, consisting of 186 eligible voters,
also is relatively large, and employees work at a number of
different locations in and around the Washington University
campus. These factors are similar to Alcohol & Drug Depend-
ency Services, supra. Unlike that case, the vote was not “ex-
tremely close.” The Union received 21 votes, compared to 123
against it.
Here, the Region and the Union received the corrected list 9
days before the election, rather than 5 days as in Alcohol &
Drug Dependency Services, supra. However, under the Board’s
policy, as articulated in Section 11302.1 of its Casehandling
Manual [Part Two, Representation], an election may not be
held sooner than 10 days after the Regional Director has re-
ceived the Excelsior list. See Mod Interiors, 324 NLRB 163
(1997).
Additionally, I reject the Employer’s argument that the Un-
ion waived its right to receive the Excelsior list on time rather
than a day late. In making this argument, the Employer notes
that it offered to postpone the election so that the Union would
have the Excelsior list for a longer time, and that the Union
rejected this offer. The Union is not required to agree to a
change in the date of the election to correct the Employer’s
error.
In sum, I cannot conclude that the Employer substantially
complied with the Board’s Excelsior requirement. I recom-
mend that the Board set aside the October 9, 1998 election, and
direct that a new one be conducted.
B. Objection 2
Objection 2 states, in pertinent part, that the Employer “pro-
vided to the Union, a day late, a list of employees which con-
tained the names of seventeen (17) supervisors, at least twelve
(12) persons not employed by the Employer at the time and at
least twenty five (25) incorrect addresses. The Employer’s
failure to provide a reasonably accurate list was an intentional
or reckless disregard for the requirement to provide such a list.”
The Employer denied these allegations.
The allegation that the Employer provided the Excelsior list
“a day late” has been discussed above. Because the Excelsior
list was untimely, I have recommended that the Board set aside
the election and direct a new one.
Apart from the issue of timeliness, Objection 2 contains
three other allegations. For clarity, each of these allegations
will be discussed individually. In examining the first allega-
tion, that the Excelsior list included the names of 17 supervi-
sors, it may be noted that the burden of proving supervisory
status rests on the party asserting such status.
To prove supervisory status, the Union offered into evidence
a copy of the Excelsior list which union director of organizing,
Hatcher, had highlighted to indicate the individuals he consid-
ered to be supervisors. On voir dire concerning this list,
Hatcher testified, in part, as follows:

Q. [By Mr. Garber]: Mr. Hatcher, who informed you
that—I take it all the ones that are in blue, you were in-
formed were supervisors?
A. Correct.
Q. And who is that informed you?
A. Well, it would be a combination of Marva Tate,
Edna Wade and Ben.
Q. And did you explain to them to—strike that. Did
they inform you as to whether or not they know what the
definition of a statutory supervisor is?
BON APPETIT MANAGEMENT CO. 1053
A. Correct.
Q. They did tell you that they knew that definition?
A. No. They indicated that these people were supervi-
sors based on the inf— based on the criteria that we set out
for them.
Q. And what was that criteria?
A. And that criteria was the right to hire, fire, disci-
pline and schedule workers.
Q. Any other criteria?
A. No.
Q. And did you attempt to verify any of this informa-
tion with the Company as to what the duties of these peo-
ple were?
A. No, I did not.
Q. Okay. Did you speak with any of these people who
you have listed in blue to determine exactly what their du-
ties are?
A. Not personally, no, sir.

It appears clear that the only information supporting the Un-
ion’s assertions of supervisory status came to union organizer,
Hatcher, from Tate, Wade, and “Ben” (presumably meaning
Ben Stewart). Although Tate, Wade, and Stewart were wit-
nesses and were examined by the Union’s counsel, they did not
give testimony concerning the duties or authority of the indi-
viduals asserted to be supervisors.
I sustained the Employer’s objection to the Union’s high-
lighted list identifying the purported supervisors, and excluded
it from evidence. The highlighted list constituted only an ex-
pression of Hatcher’s opinion, but the record contains no evi-
dence to support that opinion.
Based on the entire record, I find that the Union has not met
its burden of proving that any individual on the Excelsior list is
a supervisor within the meaning of the statute. I recommend
that this portion of Objection 2 be overruled.
Next, Objection 2 alleges that the Employer included in the
Excelsior list the names of at least 12 persons who were not its
employees. The record does not support this allegation, and I
recommend that this portion of Objection 2 be overruled.
Finally, Objection 2 alleges that the Excelsior list included
“at least twenty five (25) incorrect addresses.” At hearing, the
Union presented evidence regarding six addresses it asserted
were incorrect. It introduced evidence regarding six envelopes
which the Postal Service returned to the Union as undeliver-
able.
The first envelope was addressed to employee Mary Sims.
However, the address given on the Excelsior list, and appearing
on the envelope, was the same address Sims listed on her em-
ployment application as her present and permanent address.
A second employee, Larry McLemore, listed one address on
his employment application as his “present address” and an-
other address on the same street as his “permanent address.”
The Excelsior list did not report either of these addresses. Al-
though it correctly identified the street, it gave his house num-
ber as “5116” rather than the correct “5716.”
There is no evidence, however, to indicate that the Employer
intended to give an incorrect address. I believe it is likely that
the incorrect street number probably resulted from a misreading
of the number “7” as the number “1.”
The third employee was Thomas Biehler. The Union ad-
dressed the envelope to “P.O. Box 65,” which was the address
shown on the first Excelsior list, which only listed employees’
first initials and not their first names. The corrected Excelsior
list gave Biehler’s address as “P. O. Box 652,” which matches
the address shown on Biehler’s job application.
There is no evidence that the Employer deliberately gave an
incorrect address on the first Excelsior list. It is also unclear
why the Union addressed the envelope to Thomas Biehler,
which indicated that it had relied on the corrected Excelsior list,
but used the post office box shown on the first Excelsior list.
This envelope bears a postmark of October 3, 1998, 3 days after
the Union received the corrected Excelsior list.
The fourth employee was Montoi Lane. The address shown
on the returned envelope, the address on the Excelsior list, and
the address given on Lane’s job application are all the same. It
is possible that Lane moved without notifying the Employer, or
that the Employer did not use the most recent address for Lane
shown in its files. However, there is no evidence that the Em-
ployer knowingly listed an incorrect address for Lane on the
Excelsior list.
The fifth employee is Darren Brooks. The Excelsior list
gives the same address for Brooks as shown on his W-4 form, a
street address with the house number “5969.” However, the
Union’s envelope bears the house number “5959.” I believe it
likely that the Union made a typographical error in addressing
the envelope to Lane.
The sixth employee is Michael Berkowitz. The Excelsior list
gives a street address for him, followed by the city and state of
St. Paul, Minnesota. However, the Union addressed the letter
to Berkowitz at the same street address, but in St. Louis, Mis-
souri. Although the Excelsior list gave the zip code as
“55105,” the Union used a St. Louis zip code, “63104.”
As evidence of Berkowitz’ correct address, the Employer
submitted a copy of one of Berkowitz’ personal checks, used
for drafts on his account at a St. Paul, Minnesota bank. The
check shows the same address given for Berkowitz on the Ex-
celsior list.
I find that the Union has established that the Excelsior list
contained an incorrect address for one employee, Larry
McLemore. However, I do not find that the Excelsior list gave
an incorrect address for a second employee, Thomas Biehler,
because the corrected Excelsior list showed the right address
for Biehler and the Union possessed this list at the time it
mailed the letter to Biehler.
No evidence establishes that the addresses given on the Ex-
celsior list for the other four employees were incorrect. To the
contrary, the Employer presented credible evidence showing
that it relied on job applications or other records which pre-
sumably would give correct addresses.
Considering the relatively short time period between the hir-
ing of these employees and the preparation of the Excelsior list,
I find that it was reasonable for the Employer to rely on these
records. In other words, I find no evidence that the Employer
prepared the list with an intent to mislead the Union, and no
evidence that the Employer acted with gross negligence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
At hearing, the Union also attempted to show that the Excel-
sior list did not include the names of all employees who should
have been eligible to vote. However, the Union did not file a
timely objection to this effect, and in any event, the record does
not establish that the Employer excluded any eligible employ-
ees from the list.
In sum, I find that the Union has failed to prove the allega-
tions in Objection 2 and that the evidence presented to support
this objection does not establish a basis for setting aside the
election. See Women in Crisis Counseling, 312 NLRB 589
(1993).
I recommend that Objection 2 be overruled.
C. Objection 3
The Union’s third objection alleges, in pertinent part, that the
Employer “withheld evaluations and raises which were prom-
ised to employees and were scheduled pursuant to the Em-
ployer’s employment policy. The Employer misrepresented to
employees that it was unable to provide evaluations or raises
until after the election if the Union was defeated but, that in the
event of a Union win, evaluations and raises would have to wait
until negotiations with the Union were completed.”
The Employer’s statements to employees concerning the
scheduling of their evaluations have been discussed above.
Objection 3 embraces these statements, but goes beyond them
to allege that the Employer made statements linking a union
victory with a wait of unknown duration while the parties nego-
tiated a collective-bargaining agreement.
For the reasons discussed above, I have found that the Em-
ployer did tell employees that it was deferring the 90-day
evaluations, and the raises which could follow some of the
evaluations, because it would be considered a “bribe” by the
Board. I have also concluded that these statements do not inter-
fere with, restrain, or coerce employees in violation of Section
8(a)(1) of the Act, and have recommended that such allegations
be dismissed.
Conduct may warrant setting aside a representation election
even if the conduct is not an unfair labor practice. However, I
do not conclude that either the delay in evaluations and possible
raises or the Employer’s explanation for this delay constitutes
objectionable conduct. See Kauai Coconut Beach Resort, 317
NLRB 996 (1995) (“an employer may tell employees that ex-
pected benefits are to be deferred pending the outcome of an
election in order to avoid the appearance of election interfer-
ence”).
The record does not support a finding that the Employer pre-
sented employees with the choice of evaluations and raises
should the Union lose the election versus a delay should the
Union win. No credible evidence establishes that the Employer
made such a statement.
I recommend that Objection 3 be overruled.
D. Objection 4
Objection 4 alleges that the Employer’s supervisors interro-
gated employees as to their support for the Union. As dis-
cussed above in connection with complaint paragraph 5C, I
have found that about 2 weeks before the election, a supervisor
did interrogate an employee, Edna Wade, and threatened a re-
duction in wages if she voted for the Union.
Such conduct is objectionable, as well as a violation of Sec-
tion 8(a)(1) of the Act. I recommend that Objection 4 be sus-
tained. Further, I recommend that the Board set aside the elec-
tion and direct a new one.
E. Objection 5
Objection 5 alleges that the Employer removed prounion in-
formation from public bulletin boards. The record includes
evidence relating to two separate bulletin boards, one in the
building in which Marva Tate works, called the Wohl Center,
and the other in the building in which Edna Wade works, which
houses the School of Business Administration. I will discuss
them separately.
Tate’s assignment entailed operating a cash register at a fa-
cility called the “Bear’s Den.” She testified that there is a bul-
letin board near the cash register she operates and that, to the
best of her knowledge, Washington University owns this bulle-
tin board but does not restrict who may post notices on it.
Before the election, Tate noticed that someone had posted on
the bulletin board a sheet stating, “Union, Yes.” She testified
that she also saw the manager of the Bear’s Den, named
“Amy,” and the assistant manager of the Bear’s Den, named
“John,” remove the prounion literature from the bulletin board.
However, Tate’s testimony on cross-examination raises
doubts as to how much she actually saw, and how much she
simply assumed to have happened. According to Tate, an em-
ployee named Pam advised McAdams that there were nion
leaflets on the bulletin board in the hall outside the Bear’s Den,
and McAdams went out of the Bear’s Den. The following
excerpt of her testimony establishes that although Tate went out
in the hall to see what McAdams was doing, she did not get
close enough to see whether the material removed consisted of
prounion leaflets:

Q. Did you watch her?
A. I watched her after she got out and she was talking
to John and her and John went to the bulletin boards. But
at that time they had the board covered. I couldn’t see
what they were taking off.
Q. So you don’t know what they were taking off?
A. No, nothing except they took off the papers and
then down the hall they went and talked to two ladies that
were there.
Q. You did not see what they took off the bulletin
board?
A. No, I am just going by what Pam said that the Un-
ion was putting up leaflets.
Q. Okay. But you didn’t see—you never saw them
take any Union leaflets off the board, did you?
A. I saw her take papers off the board, yes.
Q. But you don’t know what those papers were?
A. No, but I assume they were the Union leaflets.

Although Tate’s testimony does not establish what the man-
ager removed from the bulletin board, the manager herself ad-
mitted removing prounion material on one occasion on the day
before the election. Amy McAdams, testified that the union
BON APPETIT MANAGEMENT CO. 1055
posters appeared the day before the election. She admitted that
she removed them and threw them away, but stated that 10 to
15 minutes later, the posters “reappeared,” presumably meaning
that someone posted new ones. McAdams testified that after
the posters “reappeared,” she did not take them down, and did
not see anyone else associated with the Employer taking them
down.
Tate’s testimony, quoted below, is somewhat different:

Q. After you saw Amy remove the flyers from the bul-
letin board, did they reappear?
A. Yes.
Q. And did they subsequently come down again?
A. They were always going up and coming down.
Q. And how long did that go on?
A. Well, I couldn’t really say offhand how often it did
but I know they would put them up and they would take
them down.
Q. Are you talking a period of two days, three days?
A. I would say within three days, yes. It was before
the election.

Considered carefully, this portion of Tate’s testimony does
not conflict with McAdams’ claim that she only removed post-
ers once, and did not do so again after new posters appeared on
the bulletin boards. Tate only stated that the posters “were
always going up and coming down” but did not identify who
took them down.
However, it is still necessary to resolve a credibility conflict
because other parts of Tate’s testimony do conflict with other
evidence. For example, Tate’s testimony that the prounion
material appeared on the bulletin board 2 or 3 days before the
election is not consistent with McAdams’ statement that the
prounion material appeared on the bulletin board the day before
the election.
Where Tate’s testimony conflicts with that of McAdams, I
credit McAdams’ version, which I find more reliable. It simply
is not clear from the record how much Tate actually observed,
and how much she filled in based on her assumptions or upon
information given to her by others. I believe the following
excerpt of Tate’s testimony illustrates that uncertainty:

Q. And you didn’t go out in the hall to see if they were
covering up any—any of these student—the other flyers
that were on the bulletin boards that you could not see
from your vantage point, correct?
A. No, I didn’t because when she removed them, there
was a blank space there unless she took down what was up
on there, it wasn’t covering anything up.

In this testimony, Tate appears to be stating that, although
she did not go out in the hall to look, there was a blank space
on the bulletin board where the prounion material had been.
Because she did not observe what was on the bulletin board,
her testimony about a blank space suggests conjecture.
In sum, I find that McAdams’ testimony is more reliable than
Tate’s. For that reason, I credit McAdams.
McAdams’ testimony establishes that once, she removed
prounion material from the bulletin board, that 10 to 15 minutes
later, someone else posted more prounion material on the bulle-
tin board, and that she did not remove it. Notwithstanding
Tate’s testimony that prounion material was “always going up
and coming down,” the record does not establish that the Em-
ployer’s agents did the removing.
The bulletin boards served other groups on the University’s
campus. In examining Tate, the Union’s attorney referred to
the bulletin board as a “general purpose bulletin board for the
use of students and other people.” He asked Tate if the bulle-
tin board was for the general use of either students or employ-
ees of Washington University and Tate answered, “To my
knowledge, yes.”
Bon Appétit employees are neither students nor employees
of Washington University. Rather, they work for a contractor
of the University. It does not appear that the Employer used
this bulletin board as a means of communicating with Bon Ap-
pétit employees.
The record does not establish who removed the prounion ma-
terial on occasions apart from the instance when McAdams was
involved, or why. Conceivably, the students or employees who
relied on the bulletin board may have removed materials which
obscured postings of interest to them. But such speculation is
not necessary. The evidence simply does not establish that,
apart from the occasion involving McAdams, the Employer’s
agents ever removed prounion material from these bulletin
boards in the Wohl Center.
The second part of Objection 5 concerns a bulletin board at
another location, the building in which the School of Business
Administration is located. Edna Wade is one of Respondent’s
cashiers. From her work station in the food facility in the Uni-
versity’s business school building, Wade can see a large bulle-
tin board. She testified that the University made the bulletin
board available to students and faculty, but she did not believe
that employees of the Employer could use it.
According to Wade, 2 days before the election, Union Or-
ganizer Sharon Nelson posted a “vote yes” card on the bulletin
board. She further testified that the “vote yes” notice remained
on the bulletin board about 10 days, and then one of Respon-
dent’s supervisors, Olin Cafeteria Manager Joan Turner, took it
down. Turner specifically denied removing union material
from the bulletin board.
Although I credited Wade’s testimony, rather than Turner’s,
in addressing the allegations in complaint paragraph 5C, I do
not find Wade’s testimony regarding Objection 5 equally reli-
able. It is well established that the trier of fact may accept as
trustworthy part of a witness’s testimony but reject other por-
tions of it. Southeastern Motor Truck Lines, 113 NLRB 1122
(1955); Edwards Transportation Co., 187 NLRB 3 (1970). In
such a case, though, it is particularly important to explain the
reasons for such credibility choices.
On direct examination by the Union, Wade testified as fol-
lows concerning when the prounion literature was posted:

Q. Okay. In the days before the election, did you ever
have occasion to notice any literature promoting Local 50
on that bulletin board?
A. Yes.
Q. And did you see it go up?
A. Yes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
Q. When did that happen?
A. Two days before the election.

Additionally, Wade testified, both on direct and cross-
examination, that she saw Union Organizer Sharon Nelson post
the union material on the bulletin board. But contrary to Wade,
Nelson testified that she never posted any union literature, but
instead relied on others to do so.
As a union organizer, it was not in Nelson’s interest to con-
tradict Wade’s testimony. The fact that Nelson gave such tes-
timony, even though detrimental to the Union’s case, per-
suades me that she was telling the truth. But Nelson’s testi-
mony cannot be reconciled with Wade’s testimony that she saw
the union literature go up, and that Nelson posted it. I must
conclude that Wade’s testimony on this point is incorrect.
Additionally, Wade’s testimony at trial differs from her own
pretrial affidavit concerning how long the prounion material
remained on the bulletin board. At trial, she testified as fol-
lows:

Q. From the time that you saw that piece of literature
put up on the bulletin board, did it remain there––
A. No.
Q. ––until the election?
A. No.
Q. How long was it there?
A. Maybe ten days.
Q. And what happened then?
A. My manager took it down.
Q. And who is that?
A. Joan Turner.
Q. And you witnessed her take it down?
A. Yes.
Q. And did you see what she did with it?
A. No.

In comparison, Wade’s pretrial affidavit states that “[o]n the
same day that Bus. Agent Sharon Nelson posted some pro–
Union flyers I saw Joan Turner remove Nelson’s flyers and
threw them away. This occurred a couple of days before the
election.” Thus, Wade’s pretrial affidavit differs from her tes-
timony regarding how long the prounion material was posted,
and also regarding whether Wade saw what Turner did with it.
Considering that Wade’s testimony about this matter conflicts
both with her pretrial affidavit and with the testimony of Union
Organizer Nelson, I do not find it to be trustworthy.
Moreover, even if credited, Wade’s testimony does not sup-
port the objection. According to Wade, Nelson posted the
prounion material 2 days before the election, and Turner re-
moved it 10 days later, in other words, 8 days after the election.
Such removing of prounion material more than a week after the
election could not affect the outcome of the election, and would
not constitute a meritorious objection to the way the election
was conducted.
On this point, it is true that Wade’s pretrial affidavit states
that Turner removed the union flyers a couple of days before
the election. However, that statement conflicts with Wade’s
testimony at trial.
In sum, I do not credit this portion of Wade’s testimony. I
find that the Union has not established that the Employer re-
moved union literature from the bulletin board at the location
where Wade worked.
The credited evidence establishes that one of the Employer’s
managers removed prounion material from a bulletin board on
one occasion the day before the election, and that someone
posted other prounion material on this bulletin board 10 to 15
minutes later. I do not believe that this one occurrence com-
promised the laboratory conditions necessary for the election.
Therefore, I recommend that Objection 5 be overruled.
F. Objection 6
Objection 6 alleges that the Employer distributed on election
day a leaflet promising benefits to employees.
Employee Marva Tate testified that when she reported to
work on the day of the election, October 9, 1999, she found a
copy of a letter “To All Bon Appétit Employees” lying on the
counter near her cash register. This document, signed by Gen-
eral Manager Tom Bergin, is in evidence as Charging Party’s
Exhibit 1. It states as follows:

As you get ready to vote in this very important election, and
in response to Don Rudd’s letter to Diane Paisley, I want to
provide you with some assurances for our future, within the
limits of what the law permits.
1) I GUARANTEE that NO ONE will ever be fired or
disciplined for their activities in support of the union.
2) I GUARANTEE that I will continue to work closely
with our managers in order to improve our current meth-
ods of communication with our employees.
3) Realizing that the issues of wages and benefits are
of the highest priority for everyone, I am committed and
GUARANTEE that Bon Appétit will always try to pay fair
and competitive wages in line with our industry, in accor-
dance with our company’s financial ability and based upon
the performance of each individual employee.
4) I GUARANTEE that here at Bon Appétit all em-
ployees will be treated with respect, taking into account
the dignity of each individual.
5) Finally, I GUARANTEE to work as hard as I can
everyday to continue to lead this Company in a direction
that allows us to prosper in business and to keep providing
you with a safe, decent and honorable job which helps you
to meet your obligations to yourselves and your families.

I hope that you will give us a chance to meet these
GUARANTEES and to work together with you, directly, for
a better future.

Thank you

[signed]

Tom Bergin
General Manager

Employee Edna Wade received a copy of this letter in the
mail, but could not recall the date of receipt. Crediting Tate’s
testimony, I find that at least some employees received Ber-
gin’s letter on October 9, 1998, the day of the election.
The letter does not promise any quantifiable benefit, such as
a specific wage increase. It does not even promise a tangible
benefit, such as a wage increase or improved health insurance,
BON APPETIT MANAGEMENT CO. 1057
in general terms. Rather, it promises that the Employer “will
always try to pay fair and competitive wages.”
It appears that this statement falls somewhere between the
statement made by the employer in Noah’s New York Bagels,
324 NLRB 266 (1997), asking employees for a “second
chance,” and the employer’s promise in American Freightways,
327 NLRB 832 (1999), to “look into the problems” and “fix
them.” Although the Board did not find the statement objec-
tionable in Noah’s New York Bagels, supra, it did find that the
statement in American Freightways warranted setting the elec-
tion aside.
In this latter case, the Board distinguished the “second
chance” statement in Noah’s New York Bagels, supra, because
it fell short of promising to address or remedy any particular
grievance identified by the employees. In contrast, the panel
majority in American Freightways found that the employer’s
promise to “look into the problems” and “fix them” was fo-
cused on specific complaints identified by the employees in
group meetings. Concluding that there was nothing vague or
uncertain about the employer’s promise to fix the problems, the
panel majority found this statement to be an express promise to
grant employees a significant element of what they were seek-
ing to obtain through union representation.
In the present case, as in American Freightways, the employ-
ees identified a specific problem, the absence of pay raises,
during meetings with management representatives. (However,
in the present case, the record does not establish that the Em-
ployer solicited grievances; rather, it appears that the employ-
ees brought up the subject of pay raises rather spontaneously.)
Unlike American Freightways, the Employer here did not
promise to “look into” specific problems raised by the employ-
ees and “fix them.” Instead, the Employer only promised to
try to pay “fair and competitive wages.” I conclude that this
statement falls short of an express promise to grant employees a
pay raise.
I do not find that any of the other “guarantees” or promises
in Bergin’s letter constituted an express promise to remedy a
specific grievance raised by the employees during their meet-
ings with management representatives. Bergin’s letter prom-
ised that he would not discriminate against employees because
of their union activities, but that statement amounted to no
more than a promise to obey the law. In keeping that promise,
the Employer would grant the employees no benefit that they
did not have already.
Bergin also promised to work closely with managers to im-
prove communications with employees, and that all employees
would be treated with respect. Improved communication and
respect certainly may be among the goals which employees
would seek to achieve by selecting a union to represent them.
However, the record does not establish that, in the meetings
with management, employees voiced significant concerns about
such matters.
The last guarantee in Bergin’s letter simply amounts to a
promise that Bergin will work hard to be a good manager.
There is no evidence, however, that employees were concerned
about Bergin’s efforts as a manager or sought union representa-
tion because of such concerns.
In sum, I conclude that the facts of the present case bring it
within the domain of the Noah’s New York Bagels’ precedent,
and that American Freightways is inapposite. I find that Ber-
gin’s letter to employees did not make an express promise of
benefits to employees which would warrant setting aside the
election. Therefore, I recommend that Objection 6 be over-
ruled.
Summary of Findings and Recommendations Regarding
Objections
With respect to the allegations raised in Objections 2, 3, 5,
and 6, I find that the Union has not established that the Em-
ployer engaged in objectionable conduct. However, I find that
the Union has established that the Employer did engage in cer-
tain objectionable conduct alleged in Objections 1 and 4.
Therefore, I recommend that the Board set aside the election of
October 9, 1998, and direct that a new representation election
be conducted.
CONCLUSIONS OF LAW
1. The Respondent, Bon Appétit Management Co., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party, Service Employees International Un-
ion, Local 50, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gating an employee about the employee’s union membership,
activities and sympathies, and by threatening an employee with
a decrease in wages if the employee chose to be represented by
the Union.
4. Respondent engaged in conduct which affected and inter-
fered with the outcome of the election held on October 9, 1998,
requiring that the election be set aside.
5. Respondent did not violate the Act in other ways alleged
in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices and conduct affecting the results of the election,
I shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act, as set forth in the recommended Order below.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Bon Appétit Management Co., St. Louis,
Missouri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union membership,
activities and sympathies.

1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
(b) Threatening employees with a decrease in wages or other
benefits should they choose a Union to represent them.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2.Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in St. Louis, Missouri, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on 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 notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 2, 1998.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

2 If this Order is enforced by a judgment of the 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.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their own
choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT interrogate employees about their union
membership, activities, or sympathies.
WE WILL NOT threaten employees with a decrease in wages
if employees chose to be represented by a union.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

BON APPÉTIT MANAGEMENT CO.