Crete Cold Storage, LLC

National Labor Relations Board - Administrative Judge Opinions

Aug 17, 2009

17-CA-024469 (N.L.R.B. Aug. 17, 2009)

JD(ATL)-19-09
Crete, NE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
CRETE COLD STORAGE, LLC
and Case 17-CA-24469
UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271
Susan A. Wade-Wilhoit, Esq. for the General Counsel.
Matthew Brick, Esq. and Douglas Fulton, Esq. (Brick
Gentry P.C.), of West DeMoines, Iowa, for the
Respondent.
Lauren M. Fletcher, Esq. (Blake & Uhlig, P.A.) of Kansas
City, Kansas, for the Charging Party.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Lincoln, Nebraska, on
June 24, 2009. The charge was filed on April 1, 2009, and an amended charge was filed on May
15, 2009. The complaint issued herein on May 29, 2009 alleges that Crete Cold Storage, L.L.C.
(Crete or Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act, as
amended (Act), by on or about April 1, 2009 withdrawing recognition of United Food and
Commercial Workers International Union, AFL-CIO, CLC, Local No. 271 (Charging Party or
Union) as the exclusive collective-bargaining representative of the Unit,1 and by failing and
refusing to furnish the Union with the information requested by it (a) on January 13, 2009,
namely the current seniority list of all bargaining unit employees, and (b) on January 28, 2009
by letter which is set forth as an attachment to the complaint, and which will be more fully
described below. The complaint alleges that the information requested by the Union is
necessary for, and relevant to, the Union's performance of its duties as the exclusive collective-
bargaining representative of the Unit. Respondent denies violating the Act as alleged in the
complaint.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by General Counsel, with the Charging Party joining, and
Respondent, I make the following

1 As alleged in paragraph 5 of the complaint, the following employees of Respondent
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time warehouse, scale, quality assurance, truck wash,
maintenance, lead and sanitation employees employed by the Employer at its facility
located at 2220 County Road "I", Crete, Nebraska, but excluding all office clerical
employees, engineers, temporary employees, managers, guards and supervisors as
defined in the Act.
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Findings of Fact
I. Jurisdiction
The Respondent, an Iowa limited liability company or business entity owned by Omaha
Industries, Incorporated with an office and place of business in Crete, Nebraska, has been
engaged in the business of operating a refrigerated warehouse and storage facility where,
during the 12-month period ending April 30, 2009, purchased and received goods valued in
excess of $50,000 directly from points outside the State of Nebraska. The Respondent admits
and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of
the Act.
II. Alleged Unfair Labor Practices
General Counsel and Counsel for Respondent entered into the following stipulation:
1. Attorney Matthew Brick is an agent of Respondent within the meaning of Section
2(13) of the Act.
2. Nebraska is a "Right to Work" State as codified in Neb. Const. art. XV, sec. 13 (1946)
which states:
Labor organizations; no denial of employment; closed shop not permitted. No
person shall be denied employment because of membership in or affiliation with,
or resignation or expulsion from a labor organization or because of refusal to join
or affiliate with a labor organization; nor shall any individual or corporation or
association of any kind enter into any contract, written or oral, to exclude persons
from employment because of membership in or nonmembership in a labor
organization.
3. [Union] … has at all material times been a labor organization within the meaning of
Section 2(5) of the National Labor Relations Act.
On or about February 7, 2005, the Union was certified as the exclusive collective
bargaining representative of the Unit.2 This recognition is embodied in a collective-bargaining
agreement which was effective from April 1, 2006 through March 31, 2009.
Patrick Burke, who has been the chief executive officer and president of Omaha
Industries since February 2007, was called by General Counsel as a 611(c) witness. He testified
that Omaha Industries is a holding company which owns Crete Cold Storage; that Crete is
involved in the processing and cold storage of both edible and inedible products, mainly meat;
and that General Counsel's Exhibit 5 is Crete's last, best, and final offer to the Union which the
Union signed, and which agreement was effective April 1, 2006 until March 31, 2009.
Brian Schwisow testified that he has been president of the involved local union since

2 All of the parties stipulated to General Counsel's Exhibits 3 and 4, which, respectively, are
the tally of ballots (issued the day of the election, January 27, 2005, showing eight employees
voted for the Union, four voted against the Union, and there were two challenged votes) and the
February 7, 2005 Certification of Representative.
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January 1, 2009; that the Union has represented Crete's employees since it was certified on
February 7, 2005; that General Counsel's Exhibit 5 is the labor agreement between the Union
and Crete, which had a term of April 1, 2006 to March 31, 2009; that General Counsel's Exhibit
6 is a list the Union generated showing all the past and present members of the involved
bargaining unit; that one of the individuals listed, Zach Baker, was an employee of a temporary
agency and should not have been included on the list of bargaining unit members; and that the
Union's records show that five unit members became union members.
Schwisow testified that he introduced himself to Jessica Placek at Crete on January 12,
2009.
On January 13, 2009 Schwisow had the Union's office manager, April Guerrero, email
Placek (the contact person at Crete according to the Union's records) asking her to email a
current seniority list of all bargaining unit employees to her and Schwisow, General Counsel's
Exhibit 7. The email exchange shows, as here pertinent, that Placek, on the same day,
responded "Our current seniority list is as follows: Javier Garcia - Warehouse …." Schwisow
then telephoned Placek and asked for a list of all bargaining unit members, not just dues paying
members. Placek told him that she would have to get with her attorney. Schwisow asked Placek
for her boss's telephone number and then he telephoned Burke later that same day and left a
message.
Schwisow testified that the following week he telephoned Burke and he explained the
situation to Burke who told him that he would have to get with his attorney; that he has never
heard back from Burke on this issue; and that in the past the Union had received many different
seniority lists from Crete and they had more than just dues paying members on them, General
Counsel's Exhibit 8(a) through 8(e).
Burke testified that he received an information request from the Union for a seniority list;
that he did not recall talking to Schwisow; that he did not recall a conversation with Schwisow on
January 13 or 14, 2009 regarding Placek's response to Schwisow's request for a seniority list
wherein she listed only Garcia, Schwisow said the response was not complete, and he told
Schwisow that he would look into it; and that he did not recall the conversation but Schwisow
did leave him two messages.
By letter to Crete dated January 28, 2009, General Counsel's Exhibit 9, the Union
indicated as follows:
Mr. Steve Barker
Plant Manager
Crete Cold Storage
….
RE: Crete Cold Storage CBA
….
This letter is sixty (60) days notice prior to March 31, 2009 as required in ARTICLE XXIII
- TERM OF AGREEMENT of our desire to terminate the Agreement between Crete Cold
Storage and this organization.
The purpose of his termination notice is to commence negotiations for a new labor
agreement to replace the one presently in effect.
We will be in contact with you to schedule negotiations.
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Brian Schwisow
President
UFCW LOCAL 271
Also, by letter to Crete dated January 28, 2009, General Counsel's Exhibit 10, the Union
indicated as follows:
Mr. Steve Barker
Plant Manager
Crete Cold Storage
….
RE: Information Request
….
In order to properly represent the employees in our bargaining unit in upcoming contract
negotiations, would you please supply me with the following information, which should
be for the fifty-two (52) week period ending December 31, 2008 as it pertains to our
bargaining unit.
1. Current seniority list by classification, date of hire, rate of pay (and whether an
employee is part time or temporary, if any).
2. Average weekly number of employees and hours worked by job classification
and wage rate.
3. Total straight time hours worked.
4. Overtime hours and total premium expense.
5. Paid sick time hours and total expense.
6. Funeral Leave hours paid and total expense.
7. Jury duty total hours paid and total expense.
8. Saturday of Sixth Day premium hours paid, if applicable and total expense.
9. Sunday or Seventy Day premium hours paid and total expense.
10. Holiday hours worked and total expense.
11. Holiday hours (paid but not worked) and total expense.
12. Night premium hours by premium rate and total expense.
13. Vacation paid, including the number of employees with 1, 2, 3, 4, or 5 weeks
of vacation for all employees.
14. Any bonus given to the employees and the total expense.
15, Total annual cost of health insurance. If more than one rate/plan of coverage,
the number of employees at each specific rate/plan.
16. Total annual cost of pension.
17. If appropriate, the number of hours for which call-in-pay was paid, the
number of those hours worked and total call-in expense.
18. Annual mandated benefit expenses:
Employer's Social Security ________________
Unemployment Compensation _____________
Worker's Compensation __________________
I would appreciate receiving this data no later than February 21, 2009 so that I may
properly represent our members under the law.
Brian Schwisow
President
UFCW LOCAL 271
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Schwisow hand delivered these two January 28, 2009 letters to Placek. He testified that
the Union needed the information requested in General Counsel's Exhibit 10 to prepare for
negotiations and to represent its members; and that the information requested in General
Counsel's Exhibit 10 was not supplied to the Union by Crete at that time. On cross-examination
Schwisow testified that before giving this letter to Crete he had no idea who was in the involved
bargaining unit; and that he did not know whether the union business agent who serviced Crete,
Linda Lee, had any of the information the Union requested in General Counsel's Exhibit 10.
General Counsel's Exhibit 11 is a letter from Respondent's attorney Brick to Schwisow
which reads as follows:
This letter is to acknowledge receipt of [(1)] your written notice on behalf of the …
[Union] terminating the collective bargaining agreement … set to expire on March 31,
2009, [and (2)] … your Information Request dated January 28, 2009. [Crete Cold
Storage] … is willing to meet and confer with UFCW for the purpose of negotiating a new
agreement and we will be providing responses to your information request shortly.
In addition, the purpose of this letter is to inform you that Jessica Placek, not Steve
Barker, is the Plant Manager at the Crete could Storage facility …. [3]
Schwisow testified that he learned that Placek was the plant manager when he received this
letter from Brick.
Burke testified that sometime after he received a request for information regarding
upcoming negotiations he received a telephone call from Respondent's plant manager, Placek,
about employee Javier Garcia; that Placek told him that an office assistant, Sandra Franco, told
Placek that Garcia "wanted to get out of the union" (transcript page 17); that he interpreted this
to mean that Garcia did not want the Union to represent him anymore; that he then contacted
Respondent's attorney; that at the time, January 2009, he knew that the involved collective-
bargaining agreement covered five or six employees at Respondent but Garcia was the only
dues paying member; that he did not know if the other employees were paying dues in some
other way than dues check off; that based on his conversation with Placek, Respondent
announced its intent to withdraw recognition from the Union on February 20, 2009; that at the
time that the letter was sent to the Union announcing the intent to withdraw recognition, the only
evidence that he had that the Union no longer represented Respondent's employees was that
Garcia wanted out of the Union and he, Burke, interpreted that to mean that he did not want the
Union to represent him anymore; that was the sole evidence that he had at the time; that while
union representative Linda Lee came to the Crete facility infrequently, he did not know if she
had contact with the employees outside the facility; that neither he nor Placek had talked to any
employees directly about their feelings regarding the Union; and that as of the time of the trial
herein, Garcia was still a dues paying member of the Union.
When called by General Counsel as a 611(c) witness, Placek testified that she has been
plant manager for two and one half years; that before this she was Crete's office manager for
two and one half years; that in January 2009 an office clerical employee, Franco, told her that
Garcia wanted out of the union, and he talked to his supervisor, Samuel Sanchez, about
stopping the payment of his dues; that this is the sum of her conversation with Franco; that after
here conversation with Franco, she telephoned Burke and told him what Franco had said; that

3 The letter is erroneously dated February 3, 2008, and while the letter is addressed to
Schwisow, it opens with "Dear Mr. Neilon."
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she and Burke obtained a telephone number and website information from the Board, and she
told Franco to give the information to Garcia; that she had a second conversation with Franco
who told her that Garcia telephoned the Board but he could not get anyone to speak with
because he speaks Spanish; that she reported this second conversation with Franco to Burke;
that at the time of the trial herein union dues were still being deducted from Garcia's paycheck;
and that the only other employee that she ever talked with about the union was Tony Sanchez
in 2006 when he was in the unit and he told her that he did not want to pay union dues.
In response to questions of Respondent's attorney, Placek testified that in January 2009
she had a conversation with hourly employee Franco, who is an Hispanic export clerk who bi-
lingual; that she told Franco that Franco and Garcia would have to talk to Lee; that she did not
believe that she ever saw Garcia speaking with Lee; that she gave Franco the Board's website
and possibly a telephone number for the Board to give to Garcia; that she was not sure whether
she gave Franco the telephone number of the Board but it was whatever Respondent's attorney
Matthew Brick gave Respondent; that she did not believe that she gave any instructions to
Franco about what she could or could not do; and that Len Johnson was the union steward at
the plant but he left Respondent a couple of years ago and no one took his place.
Also in response to questions of Respondent's attorney, Placek testified that Schwisow
is the current Union president; that she spoke with Schwisow once, namely in the first part of
2009 when he came by her office to give her a letter; that the letter may have requested
information, and she forwarded it on; that union representative Lee, came to the plant once a
month or every other month for 5 years; that a couple of years ago Lee was intermingling with
the temporary staffing agency employees and they complained; that she asked Lee to meet the
employees in one room where everybody who wanted to see her could go to the room to see
her; that at the time Donna McDonald was president of the Union; that she discussed the matter
with McDonald because there were safety concerns with a nonemployee being in the plant; that
subsequently McDonald would telephone her when Lee was coming to the plant and she would
put up the same sign on all of the doors, except for the date, to notify the employees about
Lee's visits4; that she asked supervisor Samuel Sanchez, who was in charge of all of facility at
the time, to make sure that everybody knew so they would go to the break room but they would
not go; that she told Jelinek and Nigg when Lee was going to be at the Crete facility; that it
would have been Samuel Sanchez's responsibility to tell Garcia since Sanchez speaks Spanish;
that when Lee was in the break room the employees in the bargaining unit went outside; that
Samuel Sanchez relayed bargaining unit complaints to her about how do they get rid of it, how
do they decertify, what do they need to do5; and that she did not take any action on hearing
these things because she had been instructed very clearly that she was not to be involved in
that, "[a]nd I need by job …." (transcript page 53).

4 The sign reads as follows:
Linda Lee (Union Rep)
will be here today
Thursday (Feb. 19th)
at noon.
She will be meeting
in the front break
room if you would like to meet with her
on your lunch break.
5 Respondent's attorney indicated that this was not offered for the truth of the matter
asserted.
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On redirect Placek testified that she did not recall talking with Schwisow on January 12,
2009 and then again on January 28, 2009; that she recalled Schwisow coming to Crete's facility
with a gentleman from Washington on January 12, 2009 after he was elected union president;
that she did not recall another time when Schwisow came to Crete's facility; that she did not
know how many times employees complained to Samuel Sanchez, and she did not know the
names of the employees who allegedly complained; that Samuel Sanchez did not report to her
the names of any unit members who had complained about the Union; and that the complaints
occurred over the course of years; and that she did not recall telling Burke about what Samuel
Sanchez told her prior to the withdrawal of recognition.
When called by General Counsel as a 611(c) witness, Samuel Sanchez testified that in
the beginning of 2009 he was approached by Garcia who asked him to assist in talking with
Lee; that he told Lee on Garcia's behalf that Garcia wanted to get out of the Union because they
were taking too much money; that Lee told Garcia to look for the Union's address on the union
bulletin board; that he never told anyone in management about his assistance to Garcia in his
attempt to get out of the union; that he never discussed getting out of the union with any other
employee other than Garcia; that the only employee that he ever had a conversation with about
the union or about getting out of the union was Garcia; that no employee ever told him that they
were not a member of the Union; and that Garcia never told him that he resigned from the
Union.
In response to questions of Respondent's attorney, Samuel Sanchez testified that he is a
friend of Garcia; that Garcia does not speak English; that Garcia came to him and asked him to
ask Lee for him how to get out of the Union; that when he asked Lee the question she directed
Garcia to a Union poster with a telephone number on it; that Lee came to Crete's facility once a
month or once every two months; that he never saw any employees talking with Lee at
Respondent's facility, except for the time he accompanied Garcia to speak with Lee; that three
days before Lee would come to Crete's facility Respondent would put up some signs in English
and Spanish on the doors and the windows to let the employees know Lee was coming to
Respondent's facility; and that, as a supervisor, he is not allowed to talk with the employees
about the Union.
On redirect Samuel Sanchez testified that he did not have indications from employees
that they did not want to be members of the Union; that Garcia told him that he wanted to get
out of the Union because they were taking too much of his money, and this is what he told Lee6;
and that when he spoke with Lee on behalf of Garcia, Lee told him to tell Garcia to write a letter
asking to get out of the Union.
When called by General Counsel Garcia testified that he has worked at Crete for four
years; that he belongs to the Union that represents Crete's employees; that about a year ago he
decided that he wanted to resign from the Union; that he asked his supervisor, Samuel
Sanchez, what he could do to get out of the Union; that Sanchez told him that he had to speak
with Lee; that around the first of the year he spoke with Lee, using Sanchez as an interpreter;
that he asked Lee what he could do to get out of the Union, and Lee told him that he had to
write a letter and she pointed to the bulletin board; that at no point did he tell Lee that he wanted
to get rid of the Union; and that he did not speak with anyone else about resigning from the
Union.

6 Subsequently, Samuel Sanchez testified that initially Garcia only told him that he wanted to
get out of the Union.
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In response to questions of Respondent's counsel, Garcia testified that he is still a
member of the Union; that he does not want to be a member of the Union; that, by letter, he has
asked the Union to let him out; that he sent his letter to the address on the poster; that the only
thing that Samuel Sanchez did for him was translate for him during his meeting with Lee; that he
talked with Franco about trying to get out of the Union; that he asked Franco to telephone the
Board because when he called he just got a computer answering machine in English, and he
does not speak English; that he tried to call the Union himself but an answer machine took the
call and it asked him to leave a message but he cannot speak English; and that the signs
announcing that Lee will be at Crete's facility are in English only and since he understands
some English words, he knows when Lee is going to be at Respondent's facility.
General Counsel's Exhibit 12 is a letter from Brick to Schwisow which, as here pertinent,
reads as follows:
Over the last several weeks, employees of Crete Cold Storage have suggested that your
union has lost the support of the bargaining-unit members. Based on, inter alia, these
suggestions and the fact that only one employee is paying dues, my client has a good-
faith reasonable doubt whether a majority of its employees support the incumbent union.
Therefore, unless Crete Cold Storage receives substantial evidence to the contrary,
upon termination of the existing collective bargaining agreement Crete Cold Storage will
withdraw recognition from the union and no longer agree to bargain. If you have any
questions or comments about the contents of this letter, please let me know.
Schwisow testified that he received General Counsel's Exhibit 12 around February 20, 20097;
that at the time he did not know how many employees were in the bargaining unit because
Crete never gave the Union a current seniority list in response to the Union's January 13 and
28, 2009 requests; and that Garcia is a member of the Union, he was a member of the Union on
April 1, 2009, and the Union has never received a letter from Garcia indicating that he wanted to
withdraw his membership. On cross-examination Schwisow testified that he never responded to
Brick's invitation to provide "substantial evidence" that a majority of Crete's employees support
the Union.
In response to questions of Respondent's attorney, Burke testified that he determined
who was a dues paying member at Crete from Placek and Respondent's payroll department;
that since he has been CEO of Omaha Industries he has "had … employees who don't do dues
check off if they're in the union" (transcript page 20); that he does not know of other employees
that directly pay their dues to the union; that to the best of his knowledge the dues payments are
"always through dues check off" (Id. at 21); that he does not get notification from the Union as
far as who is in the Union; that he has never talked to Brian Schwisow, who is president of the
Union; that his office is in Omaha, Nebraska; that Placek is responsible for the day-to-day
operations of the involved facility; that Placek told him, with respect to union activity at the
involved plant in early 2009, that it was minimal at best; that Placek told him that the union
representative came to the plant on an infrequent, inconsistent basis; that when he sent the
letter to Respondent's attorney, Brick, indicating that Respondent intended to withdraw
recognition at the end of the then current contract, he did not believe that there was any majority
interest in the collective bargaining unit for union representation; that he has not spoken with
Garcia, who speaks very little English, about this matter; that he does not speak Spanish; that
the letter which was sent to the Union notifying it that Respondent withdrew recognition
requested the Union to provide any information that would contradict Respondent's position that

7 The letter is erroneously dated "February 20, 2008."
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the Union did not have majority support; and that he did not receive anything from the Union
that contradicted Respondent's position.
Placek testified that it is Respondent's position that there was only one employee in the
collective bargaining unit, Garcia, when Crete withdrew recognition from the Union; that there
were three employees who were represented by the collective bargaining agreement when
Crete withdrew recognition, namely Garcia, Brad Jelinek, and Rick Nigg; that Union
representative Lee used to regularly come to Crete's facility; that she perceived a problem with
some of Lee's visits; and that she directed that Lee visit employees in a certain area, namely the
front break room.
Schwisow testified that Linda Lee was a business representative of the local union; that
as of February 27, 2009 Lee no longer worked for the Union; that Lee was replaced by Rod
Brejcha, who has not visited Crete's facility.
Burke testified that subsequently he received a petition in 17-RC-12614 which the Union
filed on March 31, 2009 with the Board for a certification of representative, Respondent's Exhibit
1; that as indicated in its Motion for Joinder in Union's Petition for Election, Respondent's Exhibit
2, Respondent wanted an election; that, including office workers, Crete has about 15
employees; and that the Petition for Certification of Representative, Respondent's Exhibit 1, was
withdrawn by the Union;
In response to questions of Respondent's attorney, Placek testified that Respondent has
not made any changes to the terms and conditions of its employees in the bargaining unit since
the contract expired in March 2009.
Analysis
Paragraphs 7 and 8 of the complaint collectively allege that since on or about January
13, 2009, the Union, by email and by multiple phone calls has requested that Respondent
furnish the Union with a current seniority list of all bargaining unit employees; that since on or
about January 28, 2009, the Union, by letter, has requested that Respondent furnish the Union
with information which is described above; that the information sought by the Union is
necessary for, and relevant to, the Union's performance of its duties as the exclusive collective-
bargaining representative of the unit; and that at all material times herein, Respondent has
failed and refused to furnish the Union with the information requested by it in violation of Section
8(a)(1) and (5) of the Act.
Respondent on brief argues that it notified the Union on February 20, 2009 of Crete's
intent to "withdraw recognition from the union and no longer agree to bargain," General
Counsel's Exhibit 12; that an employer has no duty to furnish information requested by a union
under such circumstances, Champion Home Builders Co., 350 NLRB 788 (2007); that "this
charge is moot as the Employer has already provided the requested information on the date of
the hearing in response to a Subpoena Duces Tecum served by the Union's attorney upon the
Employer's 'Custodian of Records," (Respondent's brief, page 14); that the Union should have
contacted the Employer instead of filing a charge with respect to the information requests; and
that "the Union testified that all information requested from the Employer was within the
knowledge and control of the Field Representative of the Union and could have been obtained
from her. Tr. p. 106-108, 111-112" (Respondent's brief, page 14, with emphasis added).
Champion Home Builders Co. can be distinguished since in that case the Board found that
the Respondent did not violate the Act when it withdrew recognition from the union involved
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there. In the instant case, Crete did violate the Act when it withdrew recognition from the Union.
Respondent's second argument set forth above certainly is not lacking in originality. The
argument is so original that Respondent does not cite any precedent to support it. Whatever
Respondent provided on the date of the hearing in response to a Subpoena Duces Tecum
served by the Union's attorney upon the Employer was not made a matter of record.
Respondent did not supply the information when it was requested. And contrary to its assertion,
Respondent has not shown that it ever supplied the information that was requested. This one of
Respondent's arguments has no merit. With respect to Respondent's third argument, as pointed
out in note 7 on page 788 of the case Respondent does cite in support of its first argument,
Champion Home Builders Co., "[t]he issue is whether relevant information was not supplied.
Where, as here, it was not supplied, the Union need not make a second request." In the instant
proceeding even when the Union made multiple requests during the term of the first collective
bargaining agreement regarding one aspect of the information sought, Respondent did not
provide the necessary and relevant information. And finally, Respondent's argument on brief
that "the Union testified that all information requested from the Employer was within the
knowledge and control of the Field Representative of the Union and could have been obtained
from her. Tr. p. 106-108, 111-112" (Respondent's brief, page 14, with emphasis added), is false.
The following appears on page 111 of the transcript:
Q Do you know whether your field representative had any of the information that you
requested in General Counsel's Exhibit 10?
A No, I don't.
General Counsel on brief submits that under the Act an employer is obligated upon
request to furnish the Union with information which is potentially relevant and which would be
useful to the Union in discharging its statutory duties such as the representation of its bargaining
unit members and contract negotiation, NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); that
the standard for relevance is a "liberal discovery-type standard," Id.; that, with respect to the
January 13, 2009 request, an employer does not satisfy its obligation to furnish information by
providing only some of the information requested, Airport Aviation Services, 292 NLRB 823
(1989); that the January 28, 2009 request sought information concerning employees' wages,
benefits, and other compensation, which information is presumptively relevant, Industrial
Welding Company, 175 NLRB 477 (1969); and that if Respondent claims that it was under no
obligation to produce the information after its announced withdrawal of recognition,
Respondent's argument is specious at best. While Respondent's expressed (its letter) future
intent to withdraw recognition is dated one day before the deadline, February 21, 2009, it
received from the Union for providing the information sought in the Union's January 28, 2009
letter, it is noted that in its February 20, letter Respondent indicates " [t]herefore, unless Crete
Cold Storage receives substantial evidence to the contrary, upon termination of the existing
collective bargaining agreement Crete Cold Storage will withdraw recognition from the union
and no longer agree to bargain." Crete could not, under the circumstances extant here, and did
not withdraw recognition on February 20, 2009. The Union's information requests were made
during the term of its collective-bargaining agreement with Crete, and the information, which is
necessary for, and relevant to, the Union's performance of its duties as the exclusive collective-
bargaining representative, should have been provided during the term of that agreement. For
the reasons specified above, Respondent violated the Act as collectively alleged in paragraphs
7 and 8 of the complaint.
Paragraphs 6 and 8 of the complaint collectively allege that, in violation of Section
8(a)(1) and (5) of the Act, on or about April 1, 2009, Respondent withdrew its recognition of the
Union as the exclusive collective-bargaining representative of the Unit.
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The National Labor Relations Board (Board) in Levitz Furniture Co. of the Pacific, 333
NLRB 717, at 717 and 725 (2001) indicated:
After careful consideration, we have concluded that there are compelling legal
and policy reasons why employers should not be allowed to withdraw recognition merely
because they harbor uncertainty or even disbelief concerning unions’ majority status. We
therefore hold that an employer may unilaterally withdraw recognition from an incumbent
union only where the union has actually lost the support of the majority of the bargaining
unit employees, and we overrule Celanese [Corp., 95 NLRB 664 (1951)] and its progeny
insofar as they permit withdrawal on the basis of good faith doubt. Under our new
standard, an employer can defeat a post-withdrawal refusal to bargain allegation if it
shows, as a defense, the union’s actual loss of majority status.
….
We emphasize that an employer with objective evidence that the union has lost
majority support – for example, a petition signed by a majority of the employees in the
bargaining unit – withdraws recognition at its peril. If the union contests the withdrawal of
recognition in an unfair labor practice proceeding, the employer will have to prove by a
preponderance of the evidence that the union had, in fact, lost majority support at the
time the employer withdrew recognition. If it fails to do so, it will not have rebutted the
presumption of majority status, and the withdrawal of recognition will violate Section
8(a)(5). [Footnote omitted and emphasis added]
Respondent has the burden of showing that the Union had, in fact, lost majority support
at the time the employer withdrew recognition. Respondent has not made this showing. As
noted above, an employer may unilaterally withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority of the bargaining unit employees,
and when the employer unilaterally withdraws recognition based on objective evidence it acts at
its peril. At the time the Respondent withdrew recognition it knew that only one of the employees
in the bargaining unit, Garcia, was having the Respondent deduct union dues from his
paycheck. But as Burke conceded, he did not know at the time the employer withdrew
recognition if the other employees in the unit were paying union dues in some way other than
dues check off. Therefore, the fact that the dues check off authorizations had declined to just
Garcia is not determinative. Placek's testimony about discussions that Samuel Sanchez
allegedly had with employees in the bargaining unit over the years about the Union is not
credited.8 The fact that the Union did not fill the position vacated by Johnson would not support
a good faith doubt defense, which is no longer applicable with respect to a withdrawal, let alone
meet Respondent’s burden of showing that that the union had, in fact, lost majority support. As

8 Placek's testimony in this regard was not offered for the truth of the matter asserted.
Respondent did not call the involved employees to corroborate Placek's testimony. Indeed,
Placek testified that she did not know who they were. More to the point, however, Samuel
Sanchez did not corroborate Placek with regard to her assertion. Indeed Samuel Sanchez
testified just the opposite when he testified that he did not have indications from employees that
they did not want to be members of the Union. In this light, Placek's testimony is not credible.
Additionally, Burke did not testify that he took this into consideration in deciding to withdraw
recognition. And Placek testified that she did not recall telling Burke about what Samuel
Sanchez told her prior to the withdrawal of recognition. So even if it occurred, which has not
been shown to be the case, it was not a consideration in the decision to withdraw recognition.
An employer must show that the union had actually lost the support of the majority at the time
recognition was withdrawn.
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noted above, Burke testified that that at the time that the letter was sent to the Union
announcing the intent to withdraw recognition, the only evidence that he had that the Union no
longer represented a majority of Respondent's employees was that Garcia wanted out of the
Union and he, Burke, interpreted that to mean that he did not want the Union to represent him
anymore; that was the sole evidence that he had at the time; that while union representative Lee
came to the Crete facility infrequently, Burke did not know if she had contact with the employees
outside the facility; that neither he nor Placek had talked to any employees directly, including
Garcia, about their feelings regarding the Union; and that as of the time of the trial herein,
Garcia was still a dues paying member of the Union. None of that which was raised by the
Respondent proves by a preponderance of the evidence that, at the time the employer withdrew
recognition, the Union had actually lost the support of the majority of the bargaining unit
employees.9 The Respondent violated the Act as collectively alleged in paragraphs 6 and 8 of
the complaint.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct Respondent committed unfair labor practices
contrary to the provisions of Section 8(a)(1) and (5) of the Act.
(a) On or about April 1, 2009, Respondent withdrew its recognition of the Union as the
exclusive collective-bargaining representative of the Unit.
(b) Failing and refusing to furnish the Union with the information requested by it on or
about January 13, 2009 and subsequently, and on or about January 28, 2009.
4. The following employees constitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time warehouse, scale, quality assurance, truck wash,
maintenance, lead and sanitation employees employed by the Employer at its facility
located at 2220 County Road "I", Crete, Nebraska, but excluding all office clerical

9 As noted above, Respondent's withdrawal letter states, as here pertinent, as follows:
Over the last several weeks, employees of Crete Cold Storage have suggested that
your union has lost the support of the bargaining-unit members. Based on, inter alia,
these suggestions and the fact that only one employee is paying dues, my client has a
good-faith reasonable doubt whether a majority of its employees support the incumbent
union.
There is no showing on this record that "employees [(plural)] … have suggested…." And the
statement in the letter that "… my client has a good-faith reasonable doubt whether a majority of
its employees support the incumbent union" is no longer the legal standard involved. On brief,
notwithstanding the citation of Levitz, Respondent continues to argue the wrong standard.
Additionally, as pointed out by the Board in Narricot Industries, 353 NLRB No. 82 (2009) the
Board does not find a decline in union membership, an alleged vacancy in a steward position or
testimony that an unspecified number of employees discussed the removal of the union, even if
considered collectively, sufficient as objective proof of a union's loss of majority support.
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employees, engineers, temporary employees, managers, guards and supervisors as
defined in the Act.
5. Since February 7, 2005 the Union has been the designated exclusive collective-
bargaining representative of the above-described unit, the Union has been recognized as the
Representative by the Respondent, and this recognition has been embodied in a collective
bargaining agreement which was effective from April 1, 2006 through March 31, 2009.
6. The above-described labor practices affect commerce within the contemplation of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent Crete Cold Storage, LLC unlawfully withdrew recognition
from the Union, it shall be recommended that Respondent Crete Cold Storage, LLC recognize
and bargain collectively with the Union upon request, and embody any understanding reached
into a signed agreement.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes. For the reasons set forth in Caterair International, 322 NLRB 64,
(1996), an affirmative bargaining order is warranted as a remedy for Crete Cold Storage, LLC's
unlawful withdrawal of recognition from the Union. An affirmative bargaining order is "the
traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of employees." Id. at 68.
However, in, inter alia, Vincent Industrial Plastics, Inc. v. NLRB, 209 F. 3d 727, 738 (D.C.
Cir. 2000) the court held that an affirmative bargaining order "must be justified by a reasoned
analysis that includes an explicit balancing of three considerations: (1) the employees' Section 7
rights; (2) whether other purposes of the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative remedies are adequate to remedy the
violations of the Act."
I find that a balancing of the three factors warrants an affirmative bargaining order. (1) An
affirmative bargaining order in this case vindicates the Section 7 rights of the unit employees
who were denied the benefits of collective bargaining by Crete Cold Storage, LLC's withdrawal
of recognition and its refusal to bargain with the Union. An affirmative bargaining order does not
unduly prejudice the Section 7 rights of employees who may oppose continued union
representation because its duration is only temporary.
Respondent engaged in unlawful conduct which undermined the Union's opportunity to
bargain effectively. Since the Union was never given a truly fair opportunity to reach an accord
regarding the second collective-bargaining agreement with Crete Cold Storage, LLC, it is only
by restoring the status quo ante and requiring Respondent to bargain with the Union for a
reasonable period of time that the employees will be able to fairly assess for themselves the
Union's effectiveness as a bargaining representative.
Continued
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ORDER
The Respondent, Crete Cold Storage, LLC, of Crete, Nebraska, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing its recognition of the Union as the exclusive collective-bargaining
representative of the unit and failing and refusing since April 1, 2009, and continuing thereafter,
to recognize and bargain with the Union as the exclusive representative of the unit.
(b) Failing and refusing to furnish the Union with the necessary and relevant information
the Union requested.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a ) On request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time warehouse, scale, quality assurance, truck wash,
maintenance, lead and sanitation employees employed by the Employer at its facility
located at 2220 County Road "I", Crete, Nebraska, but excluding all office clerical
employees, engineers, temporary employees, managers, guards and supervisors as
defined in the Act.
_________________________
(2) An affirmative bargaining order also serves the policies of the Act by fostering
meaningful collective bargaining and industrial peace. That is, it removes the Respondent's
incentive to delay bargaining in the hope of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent's withdrawal of recognition to achieve
immediate results at the bargaining table following the Board's resolution of its unfair labor
practice charges and issuance of a cease-and-desist order. Providing this temporary period of
insulated bargaining will also afford employees a fair opportunity to assess the Union's
performance in an atmosphere free of the Respondent's unlawful conduct.
(3) A cease-and-desist order, alone, would be inadequate to remedy the Respondent's
withdrawal of recognition and refusal to bargain with the Union because it would allow another
such challenge to the Union's majority status before the taint of the Respondent's previous
unlawful withdrawal of recognition dissipated. Allowing another challenge to the Union's majority
status without a reasonable period for bargaining would be particularly unfair in light of the fact
that the litigation of the Union's charges took several months and, as a result, the Union needs
to reestablish its representative status with unit employees. Indeed, permitting a decertification
petition to be filed immediately might very well allow the Respondent to profit form its own
unlawful conduct. These circumstances outweigh the temporary impact the affirmative
bargaining order will have on the rights of employees who oppose continued union
representation. For all the foregoing reasons, an affirmative bargaining order with its temporary
decertification bar is necessary to fully remedy the violations in this case.
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(b) Furnish the necessary and relevant information requested by the Union on or about
January 13 (and subsequently) and 28, 2009.
(c) Within 14 days after service by the Region, post, in English and Spanish, at its facility
in Crete, Nebraska copies of the attached Notice marked “Appendix.”11 Copies of the Notice, on
forms provided by the Regional Director for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where Notices 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
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the Notice to all current employees and former employees employed by the Respondent
at any time since January 13, 2009.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., August 17, 2009.
____________________
John H. West
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT withdraw recognition of UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271 as your exclusive collective-
bargaining representative and fail, and refuse to recognize and bargain with UNITED FOOD
AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271
as your exclusive representative.
WE WILL NOT fail and refuse to furnish UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271 with the necessary and relevant
information UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-
CIO, CLC, LOCAL NO. 271 requested.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL on request, bargain with UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271 as the exclusive representative of
the employees in the following appropriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
All full-time and regular part-time warehouse, scale, quality assurance, truck wash,
maintenance, lead and sanitation employees employed by the Employer at its facility
located at 2220 County Road "I", Crete, Nebraska, but excluding all office clerical
employees, engineers, temporary employees, managers, guards and supervisors as
defined in the Act.
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WE WILL furnish the necessary and relevant information requested by UNITED FOOD AND
COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, LOCAL NO. 271.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
8600 Farley Street, Suite 100
Overland Park, Kansas 66212-4677
Hours: 8:15 a.m. to 4:45 p.m.
913-967-3000.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 913-967-3005.