Earthgrains Co.

National Labor Relations Board - Board Decisions

Dec 3, 2001

336 N.L.R.B. 1119 (N.L.R.B. 2001)

EARTHGRAINS CO. 1119
The Earthgrains Company and International Broth-
erhood of Electrical Workers Local Union 776.
Cases 11–CA–18295, 11–CA–18339, and 11–RC–
6327
December 3, 2001
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On December 1, 1999, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified.3
Contrary to our dissenting colleague, we affirm the
judge’s finding that Respondent’s senior vice president,
Talmadge Miles, violated Section 8(a)(1) of the Act by
threatening the Respondent’s maintenance employees
with denial of a planned wage increase if the Union won
the representation election.

1 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.
The Respondent argues that some of the judge’s rulings, findings,
and conclusions demonstrate bias and prejudice. On careful examina-
tion of the judge’s decision and the entire record, we find that the Re-
spondent’s contentions are without merit.
2 In the absence of exceptions, we adopt pro forma the judge’s rec-
ommended dismissals of the following 8(a)(1) allegations: (1) that on
March 19 Supervisor Eric Antley threatened employees with job loss
and solicited grievances and promised to remedy them; (2) that Senior
Vice President Talmadge Miles threatened employees with loss of
benefits and promised that things would get better if the employees did
not select the Union; (3) that on March 23 Supervisor Gene Rodoski
threatened employees with loss of benefits and working conditions; and
(4) that the Respondent announced a new pension plan and 401(k) plan
to discourage support for the Union.
There are also no exceptions to the judge’s recommendation not to
grant a bargaining order remedy under the circumstances of this case.
We adopt that recommendation. Consequently, we find it unnecessary
to pass on the judge’s discussion of whether and when the Union
achieved a card majority.
3We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001), and we have conformed his notice to his Order.
A. Background
On December 22, 1998, and again on January 27,
1999,4 before learning of any union organizational activ-
ity, the Respondent informed its employees in writing
that it was “currently reviewing all wage rates for a
planned increase in the new fiscal year which begins in
April.” In early March, the Respondent first became
aware of its employees’ organizational activities when
the Union demanded recognition as the collective-
bargaining representative of the Respondent’s mainte-
nance employees. The Respondent refused the Union’s
demand, and a representation election was scheduled for
April 21.
In the meantime, however, on March 19 and 22, Su-
pervisor Eric Antley unlawfully told several maintenance
employees, in one-on-one meetings, that because of the
union activity they would not receive the planned April
wage increase. Also, in employee group meetings held
on March 22 and 23, Plant Manager David Maxwell
unlawfully told the maintenance employees that the pro-
duction employees would be receiving their planned
wage increases on April 4, but that the maintenance em-
ployees would not, assertedly because the Union could
then accuse the Respondent of trying to “buy votes” and
could file unfair labor practice charges against the Re-
spondent. Additionally, on March 22 and 23, Maxwell
unlawfully told the maintenance employees that they
would get the planned wage increases if the Union was
defeated in the election, but that the increases were
“something that would have to be negotiated” if the Un-
ion won. Finally, the maintenance employees were in
fact unlawfully denied the April 4 wage increase.
On April 16, the Respondent’s senior vice president,
Talmadge Miles, addressed maintenance employees and
stated that “there were no promises period,” and that, if
the Union were voted in, “everything is negotiable from
that point.” The judge concluded that Miles’ statement
threatened the loss of benefits as it confirmed Plant Man-
ager Maxwell’s earlier unlawful statements that, if the
employees selected the Union as their collective-
bargaining representative, they would not receive a pre-
viously scheduled wage increase and the wage increase
would have to be negotiated. We agree with the judge.
B. Analysis and Conclusion
Under well-established precedent, statements by em-
ployer representatives that bargaining will start “from
ground zero” or that the parties will “bargain from
scratch” violate Section 8(a)(1) “if, in context, they rea-
sonably could be understood by employees as a threat of
loss of existing benefits and leave employees with the
4 All dates are 1999 unless otherwise stated.
336 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
impression that what they may ultimately receive de-
pends upon what the union can induce the employer to
restore.” Taylor-Dunn Mfg. Co., 252 NLRB 799, 800
(1980), enfd. 679 F.2d 900 (9th Cir. 1982). [Citations
omitted.]
Similarly, in Advo System, Inc., 297 NLRB 926 fn. 3
(1990), the Board found that an employer had threatened
to withhold a scheduled wage increase in violation of
Section 8(a)(1) where, in response to an employee asking
about the increase, the employer’s director of branch
operations stated that if the union was elected “every-
thing would be negotiable.”
In this case, Senior Vice President Miles’ statements
that “there were no promises period,” and that if the Un-
ion won the election “everything is negotiable from that
point” cannot be examined in isolation, as our dissenting
colleague proposes. Rather, these remarks are given con-
text by the Respondent’s other unlawful conduct leading
up to them.
Against that backdrop of ongoing unlawful conduct, it
would be entirely reasonable for the maintenance em-
ployees to construe Miles’ remarks as simply the latest in
the series of unlawful threats of denial of the wage in-
crease, thus “leav[ing] employees with the impression
that what they may ultimately receive depends upon what
the union can induce the employer to restore. Taylor-
Dunn Mfg. Co., supra [emphasis added]. We therefore
find, in agreement with the judge and contrary to our
dissenting colleague, that Miles’ remarks violated Sec-
tion 8(a)(1) of the Act.
ORDER
The National Labor Relations Boards adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Earthgrains Company,
Orangeburg, South Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(b).
“(b) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, time-
cards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.”
IT IS FURTHER ORDERED that the election held on
April 21, 1999, is set aside and that the case is remanded
to the Regional Director for Region 11 to conduct a new
election when he deems appropriate.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I would find that Senior
Vice President Talmadge Miles’ statements to the main-
tenance employees that “there were no promises period,”
and that, if the Union were voted in, “everything is nego-
tiable from that point,” did not violate Section 8(a)(1).
The complaint alleged that on April 16, 1999, Miles
“[t]hreatened [Respondent’s] employees with loss of
benefits and working conditions because of their union
activities.” The judge found that Miles’ statement vio-
lated the Act because it “confirmed [Plant Manager
David] Maxwell’s statement that, if the employees se-
lected the Union, they would not receive the withheld
wage increase and it would become negotiable.” How-
ever, the statements of Maxwell and Miles are not inter-
related; each stands on its own.
In meetings on March 22 and 23, Plant Manager
Maxwell told the maintenance employees that they
would not receive the wage increase that the other em-
ployees would receive on April 4, but that the Company
could give them the increase if the Union were defeated.
Maxwell further stated that the increase would become
negotiable if maintenance employees elected the Union.
About 3 weeks later, on April 16, Senior Vice Presi-
dent Miles addressed the maintenance employees. Some
of the witnesses testified that Miles had said that the
benefit package was all negotiable, or that the employees
“may not have a benefit package tomorrow,” or that, if
the Union guaranteed anything “it won’t be what you
have now.”
On the other hand, some witnesses testified that Miles
did not say anything about losing benefits. Miles testified
that he told the employees that if the Union made them
any promises or guarantees, they should get it in writing.
He repeatedly testified that he told the employees that
neither the Company nor the Union could guarantee or
promise anything, that, “if the Union were voted in, eve-
rything was negotiable from that point forward, or going
forward.” There is no indication in Miles’ testimony that
he linked this statement to the wage increase or any other
specific term or condition of employment.
The judge refused to rely on the testimony of these
various witnesses. The judge noted that virtually all of
that testimony was “elicited pursuant to either leading
questions or [sic] general denials.” Instead, the judge
found that Miles’ statement confirmed the earlier state-
ment of Maxwell. I disagree. The two statements were
different. Miles told the employees that “there were no
promises, period,” and that if the Union was voted in
“everything is negotiable from that point.” Maxwell said
that, “if the employees selected the Union as their collec-
tive bargaining representative, they would not receive the
EARTHGRAINS CO. 1121
withheld wage increase and it would become negotia-
ble.” Thus, I do not agree that Miles’ statement was a
confirmation of the one made by Maxwell. Unlike
Maxwell, Miles expressly disavowed a promise and he
made no threat.
The General Counsel has the burden of showing that
Miles’ statements violated Section 8(a)(1). See gener-
ally, Grouse Mountain Associates II, 333 NLRB 1322,
1323 (2001). I note that the statements that Miles “ad-
mitted” are not unlawful. Thus, the Board stated in Tay-
lor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980):

It is well established that “bargaining from
ground zero” or “bargaining from scratch” state-
ments by employer representatives violate Section
8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of loss
of existing benefits and leave employees with the
impression that what they may ultimately receive
depends upon what the union can induce the em-
ployer to restore. On the other hand, such state-
ments are not violative of the Act when other com-
munications make it clear that any reduction in
wages or benefits will occur only as a result of the
normal give and take of negotiations. [Citations
omitted.] [Emphasis added.]

Here, the judge did not rely on testimony regarding
any other part of Miles’ speech. He specifically did not
credit testimony that Miles directly threatened the loss of
benefits. Miles’ testimony, taken as a whole, shows that
he was clearly referring to the normal give and take of
negotiations. Thus, I find that there is no reason to link
Miles’ otherwise lawful statement to Maxwell’s unlawful
statements. Under these circumstances, the General
Counsel did not carry his burden of proof. I thus do not
find that Miles’ statement violated Section 8(a)(1).1
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 or-
dered us to post and abide by this notice.

1 Concerning an unrelated matter, I find it unnecessary to rely on the
judge’s suggestion, in discrediting the testimony of Supervisor Eric
Antley, that Antley’s testimony regarding a March 19, 1999 meeting
with employee Johnnie Crider, was internally inconsistent. I note that
the judge also relied on Antley’s demeanor, as well as on “mutually
corroborative testimony” from various employees contradicting Antley
in making this credibility resolution.
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
concerted activities.

WE WILL NOT coercively interrogate you concerning
your union activities and sympathies.
WE WILL NOT impose a gag rule prohibiting, during
work time, all discussion about unions while not prohib-
iting discussion about other nonwork topics during work-
ing time.
WE WILL NOT forbid the personal possession of un-
ion literature on the job.
WE WILL NOT advise you that the wearing of union
insignia violates plant rules.
WE WILL NOT threaten you with loss of benefits and
loss of favorable working conditions because you engage
in activities on behalf of International Brotherhood of
Electrical Workers Local Union 766.
WE WILL NOT advise you that a wage increase is be-
ing withheld because of your union activities
WE WILL NOT promise you a wage increase if you
repudiate the Union.
WE WILL NOT withhold wage increases from you
because of your union activities.
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 make whole our maintenance employees
for any loss of pay and benefits they suffered as a result
of our discriminatory withholding from them of the wage
increase granted to our production employees in April
1999, plus interest.

THE EARTHGRAINS COMPANY

Donald R. Gattalaro, Esq., for the General Counsel.
Joan M. Canny and Lance A. Bowling, Esqs., for the Respon-
dent.
Donald R. Cockcroft, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was heard in Orangeburg, South Carolina, on September
13 and 14 and 20 through 22, 1999,1 pursuant a consolidated
1 All dates are 1999 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
complaint that issued on July 27.2 The complaint alleges vari-
ous violations of Section 8(a)(1) of the Act and the discrimina-
tory withholding of a wage increase in violation of Section
8(a)(1) and (3) of the Act. The complaint requests that the rem-
edy include a bargaining order and alleges violation of Section
8(a)(5) of the Act as a result of Respondent’s refusal to recog-
nize the Union. On July 28, 1999, the Regional Director issued
an order that directed a hearing on objections in Case 11–RC–
6327 and consolidated that case for hearing with the unfair
labor practice cases. Respondent’s answer denies all violations
of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, The Earthgrains Company, is a Delaware
corporation, engaged in the production and nonretail sale of
baked goods at various locations including its facility at
Orangeburg, South Carolina, at which it annually receives
goods and materials valued in excess of $50,000 from points
located outside the State of South Carolina and from which it
annually sells and ships products valued in excess of $50,000
directly to points located outside the State of South Carolina.
The Respondent admits, and I find and conclude, that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Inter-
national Brotherhood of Electrical Workers Local Union 776,
the Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Procedural Matters
Counsel for Respondent objected to the receipt of various
documents in the formal papers including the affidavit of ser-
vice of the amended charge in Case 11–CA–18339, which re-
flects service by ordinary mail rather than certified mail.
Notwithstanding Respondent’s answer, which admits receipt of
the charges, counsel represented that she had not received this
document. The hearing was in recess from September 14 until
September 20. On resumption of the hearing on September 20,
counsel represented that subpoenas had been served upon two
Regional Office personnel to compel their testimony regarding
this and other matters reflected on the affidavits of service.
Counsel for the General Counsel orally moved to quash the
subpoenas citing the absence of permission for agency employ-
ees to testify as required by Section 102.118(a)(1) of the
Board’s Rules and Regulation as well as the absence of rele-
vance since the answer acknowledged receipt of the charges.
Counsel for Respondent objected to the oral motion to quash.
Counsel for the General Counsel requested 5 days to submit a
written motion. Counsel for Respondent expressed opposition

2 The charge in Case 11–CA–18295 was filed on March 23 and was
amended on April 26. The charge in Case 11–CA–18339 was filed on
May 5 and was amended on May 11.
to granting 5 days to file a petition to revoke. I called counsel
for Respondent’s attention to Buckeye Plastic Molding, 299
NLRB 1053 (1990), in which the charge had not been served in
a timely manner but in which a complaint had issued within the
10(b) period. The Board held that, in the absence of a claim of
prejudice, service of the complaint within the 10(b) period sat-
isfied the service requirements of the Act. In the instant case,
the complaint issued on July 27 and the earliest substantive
allegation of the complaint is March 2, well within the 6-month
10(b) period. In view of the foregoing, I granted the General
Counsel’s motion to quash the subpoenas, noting specifically
that, under Buckeye Plastic Molding, any irregularities regard-
ing service of the charge ceased to be relevant. There is no
evidence of any prejudice in this case. The complaint placed
Respondent on notice of the allegations to which it must pre-
sent a defense. Id. at 1060. With regard to my granting an oral
motion to quash, the Board’s Rules and Regulations, Section
102.35(6), grant to administrative law judges, inter alia, the
authority to regulate the course of the hearing. Counsel for
Respondent had both objected to the oral motion to quash and
expressed opposition to granting counsel for the General Coun-
sel time to submit a written petition to revoke. Pursuant to my
authority to regulate the course of the hearing, I granted the
General Counsel’s oral motion to quash in order to avoid any
further delay in the hearing. See Shaw Industries, 255 NLRB
877 fn. 1 (1981), and G. W. Truck, 240 NLRB 333 fn. 1 (1979).
Immediately prior to the close of the hearing, counsel for Re-
spondent, citing Section 102.118(c) of the Board’s Rules and
Regulations, requested the statements of any witnesses that
Respondent had called. Counsel argued that, since this was a
consolidated proceeding, she was entitled to any statements in
the possession of the General Counsel regardless of who had
called the witness.3 I denied the request, stating that I consid-
ered Section 102.118(c) to be subsumed by Section 102.118(b)
in consolidated proceedings. My research subsequent to the
hearing has disclosed no authority that specifically addresses
this issue. Nevertheless, I adhere to my ruling since the only
purpose for the production of statements pursuant to Section
102.118 is for cross-examination. At the time counsel made her
request, the last witness had been excused.
B. Background
On August 19, 1998, Respondent acquired the Palmetto Bak-
ing Company in Orangeburg, South Carolina, from Southern
Bakeries. David Maxwell, a 13-year employee of Earthgrains,
was transferred to the facility as plant manager. In September
1998, Respondent advised employees of various benefits pro-
vided by Earthgrains, including a 401(k) plan.
In November 1998, employee Dannie Dukes contacted the
Union regarding representation of Respondent’s maintenance
employees at the Orangeburg bakery. The Union held its first
3 Counsel had asked one of Respondent’s witnesses if he wanted a
copy of the questionnaire regarding the union authorization card that he
had signed. Insofar as affiants are routinely provided copies of state-
ments they provide to the General Counsel when they request a copy in
writing, I directed counsel for the General Counsel to provide a copy if
he received a written request. The witness executed such a request and
the questionnaire was provided.
EARTHGRAINS CO. 1123
meeting, attended by six maintenance employees, on November
24, 1998. Thereafter the Union held meetings in December,
February, March, and April.4 There is no evidence contradict-
ing Plant Manager Maxwell’s testimony that Respondent did
not learn of this union organizational activity until he received
the Union’s demand for recognition, which he believes was
March 6.
On December 22, 1998, Respondent posted a notice that ad-
vised its employees that it was raising the starting wage rate
and progression for employees in their first year of employ-
ment. The notice also states, “We are currently reviewing all
job rates for a planned increase in the new fiscal year which
begins in April. This adjustment will take into account in-
creases in inflation as well as the recently announced increase
in the insurance co-pay.” On January 10, Respondent posted its
wage rates reflecting the new progression. It also reflected the
rates for A, B, and C mechanics. Some questions arose regard-
ing these, and, as a result, Maxwell met with maintenance em-
ployees sometime in January. In the course of the meeting,
Maxwell advised the maintenance employees that Earthgrains
did not give incentive raises, that the Company gave cost of
living raises. On January 27, Maxwell wrote a memorandum to
all employees concerning wages that included the following
statement: “We are currently reviewing all wage rates for a
planned increase in the new fiscal year which begins in April.”
On March 2, by certified mail, the Union requested recogni-
tion. A petition for an election was filed on Monday, March 8.
By letter dated March 9, Respondent refused to recognize the
Union. On March 16, the Union and Respondent entered into a
Stipulated Election Agreement. On March 19, Supervisor Eric
Antley spoke individually with all of the employees under his
supervision except Dannie Dukes. Many of the 8(a)(1) allega-
tions in the complaint arise from comments attributed to Antley
in these meetings. On March 22 and 23, Plant Manager David
Maxwell informed the maintenance employees that they would
not receive a 70-cent-per-hour increase that, on April 4, was
being granted to Respondent’s production employees.
On April 13, Human Relations Director Ron Cox explained
Respondent’s pension plan to all employees. On April 16, Sen-
ior Vice President Talmadge Miles came to the Orangeburg
facility from Atlanta and held a meeting in which he spoke to
the maintenance employees.
On April 21, the representation election was held with 2
votes being cast for representation and 16 being cast against
representation. The Union filed timely objections to the election
on April 23.

4 The reporter’s inadvertent inclusion among the rejected exhibits of
R. Exh. 36 which reflects attendance at these meeting is corrected. The
exhibit was received.
C. The 8(a)(1) Allegations5
1. Supervisor Eric Antley
a. Facts
Antley is supervisor of the six maintenance employees who
work on Respondent’s midnight shift, from midnight until 8
a.m. On March 15, employee Dannie Dukes had solicited
Antley to sign a union authorization card. On March 18, Antley
received three pages of “talking points” and was directed to
speak about the Union individually with each employee under
his supervision except for Dannie Dukes. He did so on March
19. Although Antley initially testified that he simply read the
talking points to each employee with whom he spoke, the re-
cord establishes, and Antley admitted, that on occasion he did
deviate from the script he had been provided. The talking points
state the agreed date and times of the representation election
and express Respondent’s opposition to the Union.
About 2:20 a.m., Antley informed employee Charles Free
that he wanted to have an individual talk with each employee.
Free went into the office where only he and Antley were pre-
sent. In the course of their meeting, Antley told Free that the
employees “really didn’t need a Union,” that there was nothing
a Union could do but make him pay union dues. Antley stated
that, if the employees did select the Union as their collective-
bargaining representative, “we probably would lose everything
that we already had with Earthgrains as far as 401(k) or benefit
packages.” He mentioned strikes, noting that the Union could
not force Earthgrains to do anything. Antley stated that Earth-
grains could bring in people from “around the country” and,
according to Free, said if things worked out well with them
“that we could possibly lose our jobs.” Antley informed Free
that the maintenance employees would not receive a raise on
April 1 “because we were Union active and the Union may see
that as a bribe.” He cautioned Free about talking about the Un-
ion stating that “we better not be caught talking union on the
job. The only place that we could talk about it would be in the
canteen or out of our work place.”
Employee Johnnie Crider had openly displayed on his tool
cart a “facts” book given to him by the Union. At the outset of
his meeting, Antley told Crider that he was “real disappointed
in me personally for starting something like this.” He asked
Crider what he thought the Union could do for him, and what
kind of problems had caused the employees to take “such dras-
tic measures.” Crider answered that all of the employees were
having problems with insurance, that none of the providers
wanted to accept them. He also noted that he was at top pay,
with no possibility of advancement. Antley responded that top
pay was top pay and that, in order to make more money, Crider
would have to seek other employment. He stated that he would
take the insurance problems Crider had mentioned to higher
management and “see what they thought.” Antley referred to
existing benefits, stating that, if the employees were repre-
sented by the Union, their insurance and pay would be “what-
ever the Union could get us, [b]ut he could almost guarantee it
5 Counsel for the General Counsel, in his brief, has moved to with-
drawn an allegation of interrogation attributed to Supervisor Joe Jami-
son and the complaint paragraph referring to not voting in the election
being considered a vote for the Union. The motion is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
wouldn’t be what the rest of the bakery got.” Antley mentioned
strikes, noting that Earthgrains would fly people in from other
bakeries to work during a strike, “and if things worked out and
the people liked it, that we might not have a job to come back
to.” Antley informed Crider that the maintenance employees
would not receive “the cost of living raise that we were sup-
posed to get the first of April, that we wouldn’t be getting it due
to the union activity.” He stated that the only way the mainte-
nance employees would get the raise after April 21, the date of
the representation election, was “[i]f the Union wasn’t voted in,
then Earthgrains could give us our cost of living raise.” Antley
informed Crider that “it was illegal to have Union literature on
the job” and that Crider was to have his union literature “out
before that morning, before people started coming in on the
dayshift.” He also told Crider that employees “couldn’t talk
about the Union during work hours, only during breaks.” Crider
protested that he thought that was wrong, that he had heard
differently. Antley responded that he was just repeating what
the lawyers had told him. Respondent had not previously pro-
hibited the discussion of any subject while employees were
working.
Antley began his conversation with employee Paul Jennings
by explaining that he was supposed to talk with him about the
Union. Antley informed Jennings that the Union could not do
anything for the employees and that all benefits, “the 401(k)
and things,” that, if the Union came in, Earthgrains would have
to “go through the Union.” In the course of the conversation
Antley asked Jennings what he though about the Union, “he
asked me my opinion on it.” Jennings answered that he had
never worked with a union and that a union man had given him
some flyers to read. Antley replied that “they are supposed to
do that.” Antley asked if there was anything Jennings had to
say, and Jennings stated that he was concerned whether “we
would get our raise.” Antley responded that the Company
would not be able to give employees a raise on April 1, that to
give the raise would be like “driving us to vote against the Un-
ion.”
Antley informed employee Sheck Nettles that Earthgrains
“didn’t want a Union in the bakery, and anybody involved with
the Union in part or whole would have no further advancement
or increase in pay if they were in any way connected with the
Union.” He went on to state that the plant was going to receive
an increase of 70 cents per hour “but anyone involved in part or
whole in the Union would not receive this increase.” Although
the General Counsel began his direct examination of Nettles by
calling his attention to April 1, there is no evidence of any
meeting with Antley on April 1. The meeting with Antley oc-
curred before Maxwell told the employees “the same thing,”
that the wage increase was being withheld. The meeting with
Maxwell occurred on March 22 or 23. Antley included Nettles
when he named the employees with whom he spoke on March
19. I find that Antley spoke with Nettles on March 19.
The fifth maintenance employee with whom Antley spoke,
Fielding Bolton, was called as a witness by Respondent. He
was asked no questions regarding his meeting with Antley.
Dukes was not included in the meetings of March 19. On
March 22, Antley called Dukes to the office and informed him
of the date of the upcoming election. He also advised him that
the maintenance employees would not receive a raise on April
1 because of the petition, “[b]ecause the Union would file
charges against the bakery for saying they were try [sic] to
bribe the employees . . . to not vote for the Union.” Antley
stated that the employees could lose their benefits and pay
raise, that everything was negotiable. Antley concluded the
conversation by telling Dukes that “if the Union was voted out,
then the raise would be given.”
Following the representation election, on May 4, Antley
came to Dukes when he was working in the boiler room. Antley
asked what was “this” about the Union. Dukes asked him what
he was talking about and Antley responded, “[A]bout the objec-
tions to the election.” Dukes said, “Okay.” Antley explained
that people were asking him why Dukes “did this,” and that he
was telling them he did not think Dukes “was able to do it.”
Dukes confirmed that Antley was correct. Antley, referring to
the objections, asked, “What is in these charges?” Dukes re-
plied that he did not know, he had not seen them. Antley then
told Dukes that he “must know more about this” than he was
claiming. Dukes replied that he did not, that it was out of his
hands, that two union representatives had asked his opinion of
the election, and he had told them. On May 5, Antley told the
maintenance employees that objections to the election had been
filed and they would not receive their raise “until this issue was
settled.”
Antley, on direct examination, denied that he deviated from
the talking points dated March 18. He was then asked by coun-
sel for Respondent, “Did you tell employees anything else dur-
ing your meeting in which you reviewed these talking points?”
Antley answered, “No sir.” Notwithstanding this denial, only
four questions later, counsel asked:

Q. Directing your attention again to the time period
that you were utilizing these talking points to talk to your
employees on your shift. Did you discuss with Johnnie
Crider during that period of time the handing out of Union
materials in the plant?
A. Yes, I did.
Q. During that same period of time did you also dis-
cuss with Johnnie Crider talking about non-work issues
during work time in the plant?
A. I sure did.
Q. What did you tell Mr. Crider?
A. I told him that he couldn’t do it. Work time is work
time. I mean, it clearly states that in the handbook. I mean,
I would go out and they would be in a huddle . . . with
these pamphlets and all, that’s totally against Company
policy. That’s what he was told, he could not do it on his
work hours. And that was the end of that.

The handbook to which Antley referred appears to be the hand-
book of Respondent’s predecessor. The predecessor’s supervi-
sory manual contains a valid rule prohibiting solicitation during
working time, “the time an associate is expected to be work-
ing,” and distribution during working time in a working area.6

6 The reporter’s inadvertent inclusion among the rejected exhibits of
R. Exh. 34 which reflects this rule is corrected. The exhibit was re-
ceived.
EARTHGRAINS CO. 1125
Antley appeared more intent on giving answers that he per-
ceived to be in Respondent’s best interest rather than in listen-
ing and responding to the questions he was being asked. Antley
denied mentioning the wage increase in the March 19 meetings,
testifying that the wage increase was the subject of a later list of
talking points. When asked by counsel for the General Counsel
where the talking points referred to not talking about the Union
or having union literature on the job, Antley responded, “We
had more talking points than this.” He could not recall when he
received the additional talking points but knew it was not “in
this first week.” No document reflecting those additional talk-
ing points was produced. Antley acknowledged that he “may”
have told Crider that he was disappointed in him, explaining
that he was “surprised” that Crider would be “gullible and buy
into something like this,” that he thought Crider “was smarter
than this.” Thereafter, he incredibly asserted that “I didn’t know
his [Crider’s] stance [on the Union].” I do not credit Antley.
His demeanor was unimpressive. Contrary to his assertion that
he did not deviate from the talking points, I find, consistent
with the credible testimony of the employees with whom he
spoke, that Antley did deviate from the talking points.
The mutually corroborative testimony of Free, Crider,
Jennings, and Nettles confirms that Antley did inform each of
these employees on March 19 that the maintenance employees
would not be receiving a wage increase.7 Rather than restricting
his comments to the talking points, Antley tailored his com-
ments to each employee. Thus, he made no comment regarding
advancement to Crider, who was making top pay, but he spe-
cifically informed Nettles that involvement with the Union
meant no further advancement.
b. Analysis and concluding findings
The complaint alleges that Respondent unlawfully interro-
gated employees concerning their union activities, sympathies,
and desires on March 19. The evidence supports this allegation.
If Respondent had simply been seeking to advise these employ-
ees of the date of the election and Respondent’s opposition to
the Union, as reflected on the talking points, Antley could sim-
ply have gathered the employees together and read them the
talking points in less than 5 minutes. The purpose of Antley’s
individual meetings with each employee was to seek to deter-
mine which employees supported the Union. Dukes, who had
previously asked Antley to sign a card, was excluded from the
meetings. The remaining employees were called individually to
the locus of authority, the office, by Antley. Crider, who had
displayed union literature, was informed that Antley was disap-
pointed in him because of his involvement in the Union and
then was interrogated regarding the reasons the employees had
taken “such drastic measures.” The expression of disappoint-
ment in Crider by his direct supervisor, although not itself vio-
lative of the Act, establishes the coercive nature of the meet-
ing.8 There is no evidence that Paul Jennings had openly ex-
pressed any support for the Union. Antley apparently was not

7 Crider, Jennings, and Free all executed affidavits on March 24. The
affidavit of Jennings dated March 24 was used to refresh his recollec-
tion regarding certain comments by Antley.
8 The General Counsel’s motion to amend the complaint in this re-
gard is denied.
able to discern Jennings’ sympathies and, therefore, asked
Jennings what he though about the Union, “[H]e asked me my
opinion on it.” Antley’s interrogation, by probing Crider to
determine the reason that the employees were engaging in or-
ganizational activity and by seeking to determine the sympa-
thies of Jennings who had not publicly exhibited support for the
Union, was coercive and violated Section 8(a)(1) of the Act.
Action Auto Stores, 298 NLRB 875, 895, 901 (1990), enfd.
mem. 951 F.2d 349 (6th Cir. 1991).
The complaint alleges that Respondent, on March 19, im-
plemented an unlawful no-solicitation rule by prohibiting dis-
cussion of the Union and an unlawful no-distribution rule by
prohibiting the possession of union literature. Respondent ar-
gues that the no-solicitation and no-distribution rules of its
predecessor, which it contends were still in effect, were valid. I
agree. The evidence, however, establishes that Antley went far
beyond those rules. Although concerned about employees
“huddling up,” he did not request that they not huddle up; he
promulgated a gag rule prohibiting any conversation about the
Union as established by the credible testimony of Free and
Crider. Respondent had never previously restricted the subjects
of conversation in which employees were permitted to engage
when working. Antley did not request that Crider not distribute
union literature in working areas; he informed him that it was
illegal to have union literature on the job and directed him to
have all union literature in his possession “out before . . . morn-
ing.” I find that the foregoing prohibitions that were specifi-
cally restricted only to union conversations and the possession
of union literature violated Section 8(a)(1) of the Act. Emer-
gency One, Inc., 306 NLRB 800, 806 (1992).
The complaint alleges that Antley threatened employees with
job loss on March 19. The evidence on this point is the testi-
mony of Free and Crider who were told by Antley that, if the
Union went on strike, Earthgrains would fly in replacement
workers. Antley’s comments were made in the context of an
economic strike in support of bargaining demands. See Novi
American, 309 NLRB 544, 545 (1992). Neither Free nor Crider
testified to any threat of discharge. Although Free testified that
Antley said that the employees could “possibly lose our jobs,” I
find that this testimony reflected his subjective understanding
rather than the statement that Antley actually made. Crider
recalled Antley stating that the employees “might not have a
job to come back to.” Antley’s statement that, in the event of a
strike, Earthgrains would obtain replacement workers who
might remain, if they “liked it,” did not threaten any action by
Respondent inconsistent with the continued status of strikers as
employees. Cf. Larson Tool & Stamping Co., 296 NLRB 895
(1989). I shall recommend that this allegation be dismissed.
Antley’s statement to Free, on March 19, that, if the employ-
ees did select the Union as their collective-bargaining represen-
tative, “[W]e probably would lose everything that we already
had with Earthgrains as far as 401(k) or benefit packages,”
constituted a threat of loss of benefits and less favorable work-
ing conditions in violation of Section 8(a)(1) of the Act as al-
leged in the complaint. Similarly, although Antley stated to
Crider that the employees’ benefits would be “whatever the
Union could get us,” his additional comment that “he could
almost guarantee it wouldn’t be what the rest of the bakery got”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
constituted a threat. Montfort of Colorado, 298 NLRB 73, 85
(1990), enfd. in relevant part and remanded 965 F.2d 1538
(10th Cir. 1992). Antley also threatened Nettles with loss of
benefits and less favorable working conditions when he told
him that employees connected with the Union would “have no
further advancement or increase in pay.” Nettles credibly ex-
plained, regarding the progression of mechanics to grades A, B,
and C, that Antley informed him that he “would not be in-
crease[d] for the other as long as [he] was involved with the
Union.” Antley, on March 22, threatened loss of benefits in
violation of Section 8(a)(1) of the Act when he told Dukes that
his pay raise would be negotiable if the employees selected the
Union.
The complaint allegations relating to the solicitation of
grievances and promise to remedy them by Antley on March 19
is predicated on the testimony of Crider who, in response to
Antley’s coercive interrogation, stated his concerns regarding
Respondent’s pay structure and insurance. Antley informed
Crider that if he desired to make more money he would have to
change jobs and that he would report Crider’s concern regard-
ing insurance to higher management and “see what they
thought.” These responses could hardly have given Crider any
reason to believe that either of his problems would be resolved
favorably. I shall recommend that the allegations regarding
solicitation of grievances be dismissed.
The complaint alleges that Respondent, through Antley on
March 19 and 22, threatened employees with loss of wages
because of their union activities and, on March 22, promised its
employees an increase in pay if they did not support the Union.
Antley told Free that the maintenance employees would not
receive the raise “because we were Union active and the Union
may see that as a bribe;” he told Crider that “the cost of living
raise that we were supposed to get the first of April, that we
wouldn’t be getting it due to the Union activity;” and he told
Nettles that “anyone involved in part or whole in the Union
would not receive this increase.” On March 22, he informed
Dukes that the maintenance employees would not receive the
increase “[b]ecause the Union would file charges against the
bakery . . . saying they were try[ing] to bribe the employees . . .
to not vote for the Union.” He also promised an increase if
employees did not support the Union by telling Dukes that “if
the Union was voted out, then the raise would be given.” The
foregoing comments by Antley violated Section 8(a)(1) as al-
leged in the complaint.9 AutoZone, Inc., 315 NLRB 115, 123
(1994), enfd. mem. 83 F.3d 422 (6th Cir. 1996).
The complaint alleges that Antley engaged in interrogation
on May 4 and, on May 5, threatened that the wage increase
would be withheld until the objections to election were re-
solved. Antley had previously unlawfully informed the em-
ployees that the wage increase was being withheld because of
their union activity. His statement that the increase would con-

9 Respondent’s motion to dismiss the allegations relating to March
22 because Dukes testified that the statements were made on March 21
is denied. The complaint alleges that the violation occurred “on or
about” March 22. March 22 was a Monday. I find that the statements
were made early Monday morning after Duke reported to work at mid-
night.
tinue to be withheld “until this issue was settled” violated Sec-
tion 8(a)(1) of the Act. Although his initial conversation regard-
ing what Dukes knew about the objections to the election may
not have been coercive, it became so when, after Dukes re-
sponded that he did not know what was in the objections,
Antley accused him, stating that he “must know more about
this.” Antley’s probing regarding Dukes’ involvement in the
filing of objections violated Section 8(a)(1) of the Act.
2. Plant Manager David Maxwell
a. Facts
In meetings with each shift of maintenance employees on
March 22 and 23, Plant Manager Maxwell “basically read” a
script to the maintenance employees that informed them that
the production employees would receive a wage increase on
April 4, but that the raise would not be given to the mainte-
nance employees. The script then states:

Because of the union election scheduled for our main-
tenance employees for April 21, 1999, we cannot give
those employees a pay increase because the Union could
accuse the Company of trying to buy votes and could file
charges against the company with the Labor Board. That is
why we cannot give you a pay increase at this time.
Once the election is over, if the union is defeated we
can give you a pay increase just like our other employees
here. If the union is voted in, however, your pay is some-
thing that would have to be negotiated.

Maxwell swore that the language appearing on the script
“fairly and accurately” reflected what he communicated to the
employees.
Maxwell also stated, informally, that “his hands was tied be-
cause the Company lawyer said for him not to give us our raise
and that if he did it would be condoning it, condoning the Un-
ion to come in.”
On April 13, when introducing Human Resources Manager
Ron Cox, Maxwell repeated that the maintenance employees
would not receive the raise because of the impending election,
that it would “look like he was trying to bribe us not to vote for
the Union.”
b. Analysis and concluding findings
The complaint alleges that Maxwell threatened employees
with loss of benefits and loss of a pay increase because of their
union activities and promised an increase in pay if they did not
support the Union. When an employer decides to postpone the
granting of wages or benefits that would otherwise have been
granted to employees in a unit in which an election petition has
been filed, its communications regarding that decision must
advise employees that the action was taken only to avoid inter-
ference with the election. Thus, the employer must assure the
affected employees that (1) the benefits will be granted regard-
less of the election results, (2) the “sole purpose” of the post-
ponement “is to avoid the appearance of influencing the elec-
tion outcome,” and (3) the “onus for the postponement” is not
placed upon the union. Atlantic Forest Products, 282 NLRB
855, 858 (1987); AutoZone, supra at 122. Maxwell’s comments
fail all three criteria. Rather than take the responsibility for its
EARTHGRAINS CO. 1127
action by advising the employees that the “sole purpose” in its
action was to avoid interference with the election, Respondent
sought to shift employee dissatisfaction to the Union by stating
that it was denying them the wage increase “because the Union
could accuse the Company of trying to buy votes and could file
charges.” Any doubt that this was Respondent’s intention is
erased by the simultaneous promise that, if the employees re-
jected the Union, they would receive the increase. Instead of
assuring the employees that the wage increase would be granted
regardless of the election outcome, Maxwell informed the em-
ployees that selection of the Union would result in their pay
being “negotiated.” Similar statements were condemned in both
Atlantic Forest Products, supra at 858–859 and AutoZone, su-
pra at 123. Respondent, by advising its employees that they
would not receive the wage increase because of potential action
the Union might take placed the onus for its action upon the
Union. Promising the increase upon the rejection of the Union
violated Section 8(a)(1) of the Act. Respondent, by informing
the employees that the predetermined increase that they would
receive if they rejected the Union would be negotiable if they
selected the Union as their collective-bargaining representative,
threatened employees with loss of benefits in violation of Sec-
tion 8(a)(1) of the Act. Compare Atlantic Forest Products, su-
pra at 858–859 and Ansul Inc., 329 NLRB 935 (1999).10 Simi-
larly, Maxwell’s repetition on April 13 that the wage increase
would be withheld without simultaneously assuring the em-
ployees that they would receive it threatened loss of benefits in
violation of Section 8(a)(1) of the Act. The allegations that
Maxwell threatened loss of the wage increase is subsumed in
these findings of threats of loss of benefits.
3. Director of sanitation Gene Rodoski
a. Facts
On March 22, Dukes was wearing an IBEW hat.11 Sanitation
Manager Gene Rodoski noticed the hat and initiated a conversa-
tion by asking Dukes where he could get a union jacket. Dukes
replied that, if Rodoski would sign up for the Union, he would
make sure that he received one. Rodoski stated that he would
not be able to wear it. Dukes asked why, and Rodoski re-
sponded, “[T]here’s a thing in the handbook, you can’t wear
advertisements.” Dukes commented that Rodoski had better get
rid of his Earthgrains shirt. Rodoski amended his prior com-

10 In Ansul Inc., the employer advised its employees that it was con-
cerned than any announcement “might be viewed as an effort to influ-
ence the outcome of the NLRB election” and that, in order to avoid
“even the appearance of such an effort, we have decided to postpone an
announcement.” There was no mention of vote buying or potential
charges by the union. The final sentence of the announcement did not
threaten loss of benefits; it assured that the results of its wage review
would be announced after the election and that the employer would do
so “regardless of the outcome of the election.” Citing Uarco, Inc., 169
NLRB 1153, 1154 (1968), the Board held that the employer’s statement
“clearly states that the reason for the postponement was to avoid the
appearance of tainting the election, and it explains that the [r]espondent
will announce the results of the review regardless of the outcome of the
election.”
11 Dukes placed this conversation on the same day as his conversa-
tion with Antley, March 21. Respondent’s motion to dismiss this alle-
gation that occurred “on or about” March 22 is denied.
ment by stating, “[O]utside your uniform.” Dukes stated that he
would wear his IBEW hat. Rodoski testified to bakery rules
prohibiting wearing pins and stickers that could contaminate
the product, but he admitted that Dukes was wearing a union
hat, not a union pin. He did not deny telling Dukes that he
could not wear advertising. Rather he testified that, when he
started in the plant employees could not “wear slogans and
stuff,” and that, “[t]o this day they don’t do it . . . it’s kind of an
unwritten law.” He did not deny observing employees wearing
hats provided to them by vendors that advertised the products
supplied by those vendors.
On March 23, Rodoski told Free that there had been a strike
at a unionized bakery at which he had worked. He stated that it
was a long strike and that, by the time it was over, they changed
the name of the bakery and those that were on strike were out
of a job. Rodoski did not state that he lost his job. On cross-
examination, the General Counsel established that Rodoski had
lost a job when the bakery at which he was working closed;
however, it was never established that this related to the same
incident about which Rodoski spoke with Free.
b. Analysis and concluding findings
“It is well established that an employee has the protected
right to wear union insignia while at work. Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 801–803 (1945). The Board has
held that, in the absence of ‘special circumstances,’ the prohibi-
tion by an employer against the wearing of union insignia vio-
lates Section 8(a)(1) of the Act.” See, e.g., Ohio Masonic
Home, 205 NLRB 357 (1973), enfd. mem. 511 F.2d 527 (6th
Cir. 1975).” Demuth Electric, 316 NLRB 935 (1995). Here, as
in Demuth Electric, the employee was not specifically directed
to remove the hat. Nevertheless, Rodoski’s comment suggested
that, if he did not do so, he could “suffer adverse conse-
quences” and “risked employer retaliation.” By informing
Dukes that his wearing a union hat violated a rule regarding
advertising, when employees were permitted to wear hats re-
flecting the names of various suppliers, I find that Respondent
violated Section 8(a)(1) of the Act.
The complaint alleges that Rodoski threatened loss of bene-
fits and working conditions on March 23. The remarks that Free
recalled threaten neither. There is no evidence that Rodoski’s
remarks to Free with regard to what happened at an unnamed
bakery were inaccurate. I shall recommend that this allegation
be dismissed.
4. Talmadge Miles
a. Facts
Senior Vice President Miles came to the Orangeburg facility
and addressed the maintenance employees on April 16. Miles
spent much of his time talking about his background, emphasiz-
ing that he was from the area. Miles acknowledges that he told
the employees that “there were no promises period,” and, if the
Union was voted in, “that everything is negotiable from that
point.” Dukes acknowledged that Miles placed his comments
regarding the employees’ current benefit package in the context
of negotiations. Miles told the employees that, if they rejected
the Union, “in the next few months things will get better.” Al-
though Dukes recalled Miles stating that April 21 could change
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
the destiny of the Company and employees, Miles denied using
the word destiny. The General Counsel notes that certain wit-
nesses agreed that Miles made various comments, and Respon-
dent notes that other witnesses denied that Miles made specific
comments. I place no reliance on that evidence, virtually all of
which was elicited pursuant to either leading questions or gen-
eral denials.
b. Analysis and concluding findings
The complaint alleges that Miles threatened employees with
loss of benefits and promised that things would get better if the
employees did not select the Union. Miles’ statement that
things would get better contained no promise of any specific
improvement. Such generalized statements have been held to
“be within the limits of permissible campaign propaganda.”
Noah’s New York Bagels, 324 NLRB 266 (1997). I shall rec-
ommend that this allegation be dismissed. Miles’ admission
that he told the employees that “there were no promises pe-
riod,” that if the Union was voted in “that everything is nego-
tiable from that point” confirmed Maxwell’s statement that, if
the employees selected the Union as their collective-bargaining
representative, they would not receive the withheld wage in-
crease and it would become negotiable. In so doing, Miles did
threaten the loss of a benefit in violation of Section 8(a)(1) of
the Act.
5. The pension plan
a. Facts
Jeffery Goerke, Respondent’s director of human relations for
a number of bakeries in the southeast, including Orangeburg,
testified that Earthgrains has a corporatewide pension plan for
nonunion facilities pursuant to which it makes an annual $2000
contribution for each employee. In late 1998, Goerke had
“vague” discussions regarding implementing the corporate
pension plan at facilities that Earthgrains had recently acquired.
Early in 1999, a corporate decision was made to implement the
plan retroactively to April 1, 1998, the beginning of the Earth-
grains fiscal year, at all these facilities. Goerke documented the
date of this decision through a letter to employees dated Janu-
ary 28 and an e-mail from corporate headquarters in St. Louis,
Missouri, dated January 29, confirming that the letter was being
sent to all affected employees. The letter describes the plan in
summary form including the benefit of $2000 for each year of
service and retroactivity to April 1, 1998. The General Counsel
presented no evidence contradicting Goerke’s testimony that
the initial announcement of this benefit occurred in late Janu-
ary, prior to the filing of the petition. There is no evidence that
any consideration regarding the pension plan related to em-
ployee union activity. There is no evidence that any term of the
plan explained by Ron Cox, the Orangeburg human relations
director, on April 13 was different from the terms set out in the
letter of January 28.
b. Analysis and concluding findings
A respondent does not commit an unfair labor practice by
publicizing an existing benefit of which employees are un-
aware. Weathershield of Connecticut, 300 NLRB 93, 96–97
(1990). In the instant case, the pension plan had actually been
previously announced. Respondent’s explanation of this plan in
April does not alter the fact that it was an existing, albeit not
fully understood, benefit. I find no violation of the Act as a
result of Respondent’s April 13 explanation of the pension plan
it had announced in January. I shall recommend that this allega-
tion be dismissed.
D. The Withheld Wage Increase
1. Facts
On December 22, 1998, Respondent posted a notice to em-
ployees at Orangeburg stating that it was “currently reviewing
all job rates for a planned increase in the new fiscal year which
begins in April.” Maxwell’s January 27 memorandum repeated
this announcement.
In January, Maxwell was “in the midst of budgeting for the
next fiscal year.” He did not have the authority to adjust wages
“without approval at several different levels.” Senior Vice
President Miles acknowledged that the wage increase for em-
ployees at Orangeburg would have had to be approved by him
and then forwarded to Director of Human Relations Goerke
who would also have to approve the increase. It would then be
acted upon by the corporate compensation group. Although
Goerke identified corporate e-mail establishing the date that the
pension plan was implemented, he was asked no questions
about the wage increase, and he presented no documents re-
flecting his approval of it. No evidence was presented establish-
ing the date of corporate approval of the increase. Respondent’s
failure to present any evidence on this issue suggests that such
evidence would reveal that the wage increase was approved
prior to Respondent’s receipt of the Union’s demand for recog-
nition. Even if the increase was approved after the demand for
recognition, there is no evidence that the corporate approval
was for other than a 70-cent-per-hour increase for all Orange-
burg employees.
Respondent normally makes corporatewide adjustments in
wages for nonunion facilities at the beginning of its fiscal year
on April 1, resulting in an adjustment effective either the last
few days of March or the first few days of April. Employees
testified that Respondent’s predecessor at Orangeburg had ad-
justed wages at different times, from as early as March to as
late as June. Maxwell testified that the predecessor’s adjust-
ment in 1998 had been made on June 5, 1998, but there is no
evidence that he communicated this to anyone. Although Miles
implied that Respondent sought to continue the existing wage
adjustment practices at facilities acquired by Respondent, he
acknowledged that he was unaware of what the wage increase
practice had been at Orangeburg. There is no evidence that any
management official at any level above Maxwell was aware of,
or considered, the wage increase history at Orangeburg when
determining to grant the increase effective April 4, at the be-
ginning of Respondent’s fiscal year. The production and main-
tenance employees at Orangeburg had, in the past, been treated
the same. Consequently, the March announcement of the grant-
ing of the April wage increase to Respondent’s production em-
ployees established the expectation that the maintenance em-
ployees would be treated in the same manner.
Respondent adduced no evidence regarding the making of
the decision not to grant the wage increase to maintenance em-
EARTHGRAINS CO. 1129
ployees. Maxwell told the maintenance employees that they
would not receive the increase, “because the Union could ac-
cuse the Company of trying to buy votes and could file charges
against the Company with the Labor Board.” Although he read
from a script, Maxwell did not deny that he also told the em-
ployees that “his hands were tied because the Company lawyer
said for him not to give . . . [the] raise.” Respondent presented
no evidence regarding the truth or falsity of this hearsay state-
ment and, therefore, I make no finding regarding it. Thus, the
record is devoid of any probative evidence regarding the mak-
ing of the decision to deny the increase or the decision to in-
form the maintenance employees that they would receive the
increase if the Union lost the election but that it would be nego-
tiable if they selected the Union as their collective-bargaining
representative.
On March 19, prior to Maxwell’s formal announcement,
Antley told Free that the maintenance employees would not
receive the raise “because we were Union active and the Union
may see that as a bribe;” he told Crider that “the cost of living
raise that we were supposed to get the first of April, that we
wouldn’t be getting it due to the Union activity;” and he told
Nettles that “anyone involved in part or whole in the Union
would not receive this increase.” On March 21, he informed
Dukes that the maintenance employees would not receive the
increase “[b]ecause the Union would file charges.”
2. Analysis and concluding findings
An employer’s obligation with regard to wage increases dur-
ing a representation campaign is to proceed as it would have
proceeded without regard to union considerations. Pennsyl-
vania Gas & Water Co., 314 NLRB 791, 793 (1994), enfd. 61
F.3d 895 (3d Cir. 1995).
Respondent argues that it was privileged to withhold the
wage increase in the instant case since the employees had only
been informed that Respondent “planned to increase pay some-
time in the company’s new fiscal year.” It contends that the
wage increase had not been “preordained” by “unmistakable
promise or fixed cycle.” Citing Great Atlantic & Pacific Tea
Co., 192 NLRB 645 (1971), Respondent argues that the with-
holding of benefits that had not been “finally formulated prior
to the preelection period” does not violate the Act. There is, in
this case, no evidence that the increase had not been finally
formulated. Respondent did not examine its witnesses on this
issue. Respondent’s announcements in December and January
establish that the wage increase at Orangeburg was a “planned
increase.” A wage increase had been promised, although the
specific date thereof had not been stated. Production and main-
tenance employees at Orangeburg had, in the past, been treated
the same. Consequently, the March announcement of the grant-
ing of an April wage increase to production employees estab-
lished the expectation that the maintenance employees would
be treated in the same manner.
Even if I were to accept Respondent’s argument that the
wage increase was not “preordained,” Respondent was still
obligated to proceed as it would have proceeded. When “a sys-
temwide increase is put in effect in a manner free from union
considerations, the withholding of that increase at a . . . unit
undergoing union organization is not necessary to avoid risking
unlawful interference. . . . This is so because the systemwide
application does what a regular pattern of wage increases does
in other circumstances—provides the evidence necessary to
demonstrate that the increase was given free from union . . .
considerations.” Associated Milk Producers, 255 NLRB 750,
751 (1981). Notwithstanding the foregoing principle, the Board
recognizes that a Respondent may be concerned that it would
be unable “to substantiate its claim that the increases it gave are
the same as they would have been in the absence of the peti-
tion.” H.S.M. Machine Works, 284 NLRB 1482, 1484 (1987).
Thus, the Board “has fashioned a limited exception to the em-
ployer’s duty to act as if the petition had not been filed: The
employer may withhold the increases provided it truthfully tells
its employees that it has merely postponed or deferred the in-
creases and that it has done so only to avoid the appearance that
it interfered with the election. The purpose of these precautions
is to avoid placing the onus for the employer’s decision on the
union.” Id. I reject Respondent’s argument that it was not obli-
gated to assure the employees that the increase would be
granted regardless of the outcome of the election. Even if the
increase was not “preordained,” H.S.M. Machine Works re-
quires that the employees be told that the increase “has merely
[been] postponed or deferred.”
The record herein establishes that the increase was preor-
dained. In December and January, Respondent informed its
employees that it was reviewing all wage rates for a “planned
increase” that would be implemented “in the new fiscal year
which begins in April.” Respondent historically makes its wage
adjustments at the beginning of each fiscal year. There is no
probative evidence that the history of wage increases given by
Respondent’s predecessor at Orangeburg played any part in the
determination of when to implement the 1999 wage increase. In
granting this “planned increase” at the beginning of the fiscal
year, Orangeburg was treated in the same manner as Respon-
dent’s other bakeries. The statements of Antley and announce-
ment by Maxwell confirm that the maintenance employees
would have received the same increase as the production em-
ployees in the absence of their union organizational activity.
Thus, even if the wage increase for the maintenance employees
had not been “preordained,” it became so the moment Respon-
dent announced that it would be given to the production em-
ployees because the production and maintenance employees at
Orangeburg had, in the past, been treated the same with regard
to general wage increases.
Having made the decision not to grant to its maintenance
employees the wage increase they otherwise would have re-
ceived, Respondent was obligated to follow the clearly estab-
lished guidelines set out in numerous cases regarding the man-
ner in which it communicated its decision not to grant the in-
crease. Thus, the Respondent was required to “‘[make] clear’ to
employees that the adjustment would occur whether or not they
select[ed] a union, and that the ‘sole purpose’ of the adjust-
ment’s postponement [was] to avoid the appearance of influ-
encing the election’s outcome. In making such announcements .
. . an employer must avoid attributing to the union ‘the onus for
the postponement of adjustments in wages and benefits,’ or
‘disparag[ing] and undermin[ing] the [union] by creating the
impression that it stood in the way of their getting planned
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
wage increases and benefits.’” Atlantic Forest Products, 282
NLRB 855, 858 (1987). In the instant case, Supervisor Antley
specifically placed the onus for the withholding of the wage
increase upon the employees’ union activity. Maxwell informed
the employees that “if the union is defeated we can give you a
pay increase just like our other employees here.” Maxwell did
not inform the employees that the increase had “merely [been]
postponed or deferred”; he informed them that, if the Union
prevailed, the increase became negotiable. Miles told the em-
ployees that, if they selected the Union, “everything was nego-
tiable.” Maxwell stated that “the Union could accuse the Com-
pany of trying to buy votes and could file charges,” thus plac-
ing the “onus for the postponement” on a potential act that the
Union might take. Respondent never took the responsibility for
its action by advising the employees that the “sole purpose” in
its action was to avoid interference with the election. Borman’s
Inc., 296 NLRB 245, 248 (1989).
In assessing the foregoing evidence under the analytical
framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), I find the 8(a)(1) violations found
herein establish Respondent’s animus towards the employees’
union organizational activity. The statements of Antley and
Maxwell establish that the union activity of the maintenance
employees was the motivating factor for the withholding of the
wage increase. Manno Electric, 321 NLRB 278 (1996). Re-
spondent has not rebutted the General Counsel’s prima facie
case. If Respondent had proceeded as if no petition had been
filed, the maintenance employees would have received the in-
crease at the same time as the production employees. Respon-
dent, rather than attempting to avoid interfering with the elec-
tion, sought to use the withheld wage increase to assure the
defeat of the Union. Respondent held the increase before the
employees as a carrot if they rejected the Union. Instead of
assuring the employees that the raise would be granted regard-
less of the outcome of the election, it informed them that, if
they selected the Union as their collective-bargaining represen-
tative, it was negotiable. Such manipulation is additional evi-
dence of Respondent’s unlawful motive. Pennsylvania Gas &
Water Co., supra at 793. The record establishes, and I find, that
Respondent discriminatorily withheld the 70-cent-per-hour
wage increase from its maintenance employees because of their
union activity. In so doing, Respondent violated Section 8(a)(1)
and (3) of the Act.
E. The 8(a)(5) Allegation
1. Appropriate unit
Respondent’s brief argues that the record contains no evi-
dence from which I can determine the appropriate bargaining
unit, but does not mention that it entered into a Stipulated Elec-
tion Agreement in Case 11–CA–6327. The Board has specifi-
cally held that a respondent agrees that the unit is appropriate
by entering into a Stipulated Election Agreement. Wintz Dis-
tributing Co., 317 NLRB 284 fn. 1 (1995). Furthermore, any
question regarding the appropriateness of the unit could and
should have been raised in the representation proceeding. Play-
house Square Foundation, 291 NLRB 995 fn. 1 (1988). I find
the following unit, consisting of 18 employees on March 2 and
19 employees after March 5, to be appropriate:

All full time and regular part time maintenance department
employees, including mechanics, lead mechanics, mainte-
nance department plant clerical employees, and painters
employed by the Employer at its Orangeburg, SC, facility;
excluding all other employees, office clerical employees,
and guards, professional employees and supervisors as de-
fined in the Act.
2. Card majority
“[E]mployees should be bound by the clear language of what
they sign unless that language is deliberately and clearly can-
celed by a union adherent with words calculated to direct the
signer to disregard and forget the language above his signa-
ture.” NLRB v. Gissel Packing Co., 395 U.S. 575, 606 (1969).
An employee’s subjective understanding regarding his signing
a single purpose authorization card does not negate the designa-
tion established by his signature. Id. at 608. Numerous cases
have held that the mention of an election does not affect the
validity of a single purpose card. Levi Strauss & Co., 172
NLRB 732, 733 (1968). The authorization cards herein are
single purpose cards. At the top, in capital letters and bold type,
is the designation “AUTHORIZATION FOR REPRESEN-
TATION.” Immediately under this language is the following
statement: “I authorize a local union of the International Broth-
erhood of Electrical Workers, to represent me in collective
bargaining with my employer.” There is no probative evidence
that any employee herein was told that the sole purpose of the
card was for an election. Representations that cards would re-
main “secret” and that the signer could vote “either way” in any
election do not invalidate the designation established by a sin-
gle purpose card. Gissel, supra at 584 fn. 5.
Although Respondent objected to receipt of 7 of the 11 au-
thorization cards admitted into evidence, the record establishes
that each card bears the signature of the individual who pur-
ported to sign it. In its brief, Respondent attacks the validity of
five cards.
Robert Brown, Johnnie Crider, Dannie Dukes, Charles Free,
Paul Jennings, and Sheck Nettles attended the first union meet-
ing, which was held on November 24, 1998. Each of them
signed a union authorization card at this meeting. The card of
each of these employees, except for Free, reflects the date No-
vember 24. Free’s card incorrectly reflects that it was signed on
November 23, 1998, but Free testified that he did sign the card
at that meeting. Respondent does not contest the validity of the
card signed by Jennings. Regarding that card, I credit only his
initial testimony that he read the card. I find the foregoing au-
thorization cards to be valid designations of the Union.
Fielding Bolton’s authorization card is dated December 29,
1998. Dukes testified that he filled out the information on the
card at Bolton’s request and that Bolton appeared to read the
card and signed the card in his presence. Dukes told Bolton that
the card was “[f]or the IBEW to represent us at bargaining.”
Bolton testified that he signed the card at a union meeting at a
motel. When asked if he read it he answered, “Well, I don’t
know how good I could.” When the question was repeated, he
replied, “Not really read it all that good, no. I just—you
know—everybody was signing so they said you had to sign
one, you know, if you attended the meeting.” If “everybody
EARTHGRAINS CO. 1131
was signing,” Bolton would have filled out his own card. Al-
though there had been a union meeting on December 22, 1998,
there is no evidence that there was a union meeting on Decem-
ber 29. Employees who attended union meetings were asked to
sign a “Sign-in Sheet” reflecting their attendance. Bolton
signed this sheet reflecting his attendance at meetings on Feb-
ruary 4 and April 16. I find that this sheet, not the authorization
card, was the document that “everybody was signing.” The
information upon the card is in handwriting other than Bol-
ton’s, thus corroborating Dukes’ testimony that he filled out
that information at Bolton’s request. I credit Dukes testimony
that he told Bolton the card was “[f]or the IBEW to represent us
at bargaining.” I find that Bolton read and signed the card des-
ignating the Union as his collective-bargaining representative.
Thereafter he attended two union meetings. He never sought to
rescind his card. I find that this card constitutes a valid designa-
tion of the Union.
Kenneth Carroll signed a union authorization card dated
March 2. On February 18, Carroll had tendered an unsigned
card to Union Representative Howard Wessinger at a union
meeting. Carroll asserted that Dukes had given him that card
and informed him that he needed to sign it in order to “go to a
[union] meeting.” Even if I were to credit that testimony, which
I do not, Carroll signed a roster reflecting his presence at the
meeting, and his name appears on the sign-in sheet of February
18. He admitted that, at that meeting, Wessinger and other rep-
resentatives of the IBEW explained that, if they had 50 percent
plus one card, “they could use the card to demand recognition
from the Company,” that the Company could refuse the de-
mand, and that, if the Company refused, “they [the Union]
could use the card to get a Labor Board election.” Following
Carroll’s attendance at that meeting, Duke testified that he pre-
sented him with the unsigned card he had turned in at the meet-
ing and asked if he had intended not to sign it. Carroll re-
sponded that he had intended to sign it and did so. Carroll testi-
fied that the card Dukes presented him was not the same card.
On cross-examination, The General Counsel asked Carroll if
Dukes told him it was a different card. Carroll responded, “He
just said it was another card, you need to sign it. You failed to
sign the other card.” The General Counsel then asked, “That’s
all he told you?” Carroll answered, “That’s it.” Regardless of
whether the card that Dukes presented to Carroll on March 2
was the same card or a different card, there was no misrepre-
sentation. The use to which the Union intended to put the card
was explained at the meeting prior to his signing the card. I find
Carroll’s card to be a valid designation of the Union.
John Fort signed a union authorization card on February 26,
purportedly in response to aggravation by employee Johnny
Crider. The record establishes three conversations between
these two employees, but no aggravation. In the first, Fort ex-
pressed to Crider his disappointment regarding Respondent’s
insurance. Fort acknowledges that Crider was “trying convince
me that the Union would be a very good thing.” In the second,
Fort testified that Crider told him that signing the union card
was “getting it started. In other words, kind of like getting the
ball rolling. We could vote for it [if] we wanted to, we didn’t
have to. . . . [A]ll they’[re] doing was getting it started. Getting
the Union started to coming into the plant.” During the third
conversation, Crider presented Fort with a card. Fort expressed
misgivings, stating, “I don’t believe I want to do nothing like
this.” Crider responded that it did not mean anything “except
just to get the Union started.” Fort testified that Crider stated,
“You won’t hear about it again, and nobody will never know
nothing about it but me and you.” I do not credit the latter por-
tion of this statement. It was obvious that Crider was soliciting
on behalf of the Union and would report his successful solicita-
tion of Fort. Although Fort completed a questionnaire on which
he checked the “yes” box in response to the question as to
whether he read the card, at the hearing he claimed that he only
read the portion of the card that he filled out, i.e., name, ad-
dress, etc. I do not credit this testimony. Fort read the card and
knew that, by signing the card, he was authorizing the Union to
represent him. He expressed his ambivalence about taking this
action, stating he unsure about “wanting to do nothing like
this.” I find that Fort read the entire card and sought reassur-
ance from Crider that, despite having signed the card, he could
vote in any manner that he desired. Crider gave him that assur-
ance, and Fort signed the card. I find that Fort’s card constitutes
a valid designation of the Union.
Anthony Glover signed an authorization card dated March 5.
He acknowledges filling out the personal information on the
card. Dukes testified that he filled in Glover’s department and
job. Glover denies reading the card, which, in bold capital let-
ters at the top states “AUTHORIZATION FOR REPRESEN-
TATION.” Although Glover asserts that Dukes told him that
the card was “to like go to a meeting and stuff,” he later altered
this testimony, stating that Dukes told him to “fill out the card
and we’ll be going to a meeting.” Dukes recalled that Glover
asked him for a card, filled it out and signed it in his presence,
and returned it to him. Glover testified that, about a week later,
he “had second thoughts” and told Dukes to “hold up on it,”
referring to the card. He claims he took this action because he
thought a union meeting about which he had not been notified
had been held. He initially testified that, when he told Dukes to
“hold up on it,” Dukes told him that he would let him know
more about meetings. Later, when I asked him about Dukes’
response, he testified that Dukes simply said, “Fine.” I find
Glover’s testimony incredible. Glover’s unimpressive de-
meanor and altered phrasing convince me that he was well
aware that the card that he signed on March 5 was something
far different from a ticket of admission to a union meeting.
There would be no reason to tell Dukes to “hold up on” an un-
used meeting admission ticket. Glover acknowledged that he
never asked for the return of his authorization card. I find that it
constitutes a valid designation of the Union.
Thomas Polk signed a union authorization card on February
10. He testified that, after having a “little dispute about pay
raises and stuff,” he approached Dukes, whom he described as
“the representative of the Union,” and that Dukes told him “to
sign this card, that I could go to a [union] meeting. Dukes re-
calls discussing wanting representation by the IBEW with Polk.
Polk took a union authorization card from Dukes and delivered
the signed card to him the next day. I do not credit Polk’s de-
nial that he kept the card overnight, nor I do credit his assertion
that he did not read the card. The union’s sign-in sheets reveal
that Polk attended union meetings on February 18 and March
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
17 and 26. The February 18 meeting was the meeting at which
union officials explained the manner in which the Union in-
tended to use the cards. Following that meeting, Polk began
wearing union insignia at work. He ceased supporting the Un-
ion after the meeting on March 26 because he decided that the
Union was not going to help him or his family. Earlier in that
week, Maxwell had advised the maintenance employees that
they would not be getting the raise being granted to Respon-
dent’s production employees. I find that the card signed by Polk
constitutes a valid designation of the Union.
I find that all of the 11 authenticated authorization cards con-
stitute valid designations of the Union and that this number
constitutes a majority in the appropriate unit, which consisted
of 18 employees on March 2 and 19 employees on March 5 and
thereafter.
3. The bargaining order
The General Counsel and the Charging Party seek the rem-
edy of a bargaining order. There is no evidence of typical
“hallmark violations” such as discharges, threats of closure, or
the grant of significant benefits. Thus, at best, this case falls
into the “Category II” cases which the Supreme Court de-
scribed in Gissel as those “less extraordinary cases marked by
less pervasive practices which nonetheless still have the ten-
dency to undermine majority strength and impede the election
processes.” In cases of the second category, a bargaining order
should issue where the Board finds that “the possibility of eras-
ing the effects of past practices and of ensuring a fair election
(or a fair rerun) by the use of traditional remedies, though pre-
sent, is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a bar-
gaining order.” Gissel, supra, 395 U.S. at 613, 614–615.
In Times Wire & Cable Co., 280 NLRB 19 (1986), the Board
refused to adopt the administrative law judge’s recommended
remedy of a bargaining order and directed a third election. Prior
to the first election, the respondent committed numerous 8(a)(1)
violations, including threats of plant closure. The union won the
election, and the respondent filed objections. The union, in
order to avoid delay, agreed that certain objections be sustained
and that a second election be held. The union lost this election
and filed objections and unfair labor practice charges. The ad-
ministrative law judge found, and the Board agreed, that the
respondent had unlawfully threatened plant closure, coercively
solicited employees to revoke union authorization cards, and
failed to grant a general wage increase. The withholding of the
wage increase was the only violation that occurred between the
first and second election. In refusing to impose a bargaining
order the Board stated that the withholding of the wage increase
“even in light of the violations occurring before the first elec-
tion, cannot be viewed in these circumstances as being suffi-
ciently serious to justify the imposition of bargaining,” and
goes on to find that the Board’s traditional remedies and a third
election would enable employees to express their true senti-
ments. In that case, the respondent had, some 5 months later,
granted the increase, but not retroactively. The respondent was
ordered to make whole the employees by retroactive payment
of the increase.
In the instant case, there are no discharges, threats of closure,
or solicitation to revoke union authorization cards. The vast
majority of threats regarding loss of benefits relate to Respon-
dent’s statements that the increase was being withheld because
of the employees’ union activities and that, if the Union won
the election, the increase would be negotiable. An election is
the preferred method of resolving questions concerning repre-
sentation. Sunbeam Corp., 287 NLRB 996, 999 (1988). The
Respondent herein did grant the wage increase, albeit not retro-
actively, in June, some 2 months after it was withheld. Times
Wire & Cable Co. involved conduct far more coercive than the
conduct in this case and the withholding of the wage increase
was for 5 months. In view of the foregoing, I find that the tradi-
tional remedies of posting an appropriate notice and making
whole the employees for the failure to grant the wage increase
in April will enable a fair election to be conducted.
F. The Objections
I have found that, after the petition was filed and prior to the
election, the Respondent engaged in violations of Section
8(a)(1) and (3) of the Act. This conduct parallels various objec-
tions to the election filed by the Union. Respondent’s state-
ments that the maintenance employees’ wage increase would be
withheld because of their union activities violated Section
8(a)(1) of the Act and the withholding of the wage increase
violated Section 8(a)(1) and (3) of the Act. This is alleged as
objectionable conduct in Objection 1. Respondent, in violation
of Section 8(a)(1) of the Act, advised its employees that receipt
of their wage increase was dependent upon defeat of the Union.
This is alleged as objectionable conduct in Objection 2. Re-
spondent unlawfully prohibited conversation about the Union
and prohibited possession of union literature. Although there is
no evidence of a specific threat of discipline as alleged in Ob-
jections 4 and 5, those objections do allege the restrictions that
I have found violated the Act. Antley’s statement to Nettles
regarding no further advancement, his statement to Free regard-
ing probably losing everything, and his statement to Crider that
he could almost guarantee that the maintenance employees
would receive less constituted threats of loss of benefits and
favorable working conditions in violation Section 8(a)(1) of the
Act. Objections 7 and 9 refer to statements that employees’
organizational activity would result in less pay and lost bene-
fits. Objection 10 refers to the questioning of employees re-
garding their participation in union activity, and I have found
that Antley interrogated employees Crider and Jennings on
March 19 in violation of Section 8(a)(1) of the Act.
I find the foregoing violations of the Act that occurred dur-
ing the critical preelection period and that correspond to the
Union’s objections interfered with the employees’ free choice.
CONCLUSIONS OF LAW
1. By coercively interrogating employees, imposing a gag
rule prohibiting discussion about unions, forbidding possession
of union literature, advising employees that wearing union in-
signia violated plant rules, threatening loss of benefits and less
favorable working conditions because employees engaged in
union activity, advising employees that a wage increase was
being withheld from them because of their union activities, and
EARTHGRAINS CO. 1133
promising employees a wage increase if they repudiated the
Union, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and Sec-
tion 2(6) and (7) of the Act.
2. By withholding the wage increase of April 4 from em-
ployees in the collective-bargaining unit which was the subject
of the petition and election in Case 11–RC–6327 because of
their union activities, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily withheld a wage in-
crease from employees in the collective-bargaining unit which
was the subject of the petition and election in Case 11–RC–
6327, it must make them whole for any loss of earnings and
other benefits from April 4 until the increase was granted, plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, The Earthgrains Company, Orangeburg,
South Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their un-
ion activities and sympathies.
(b) Imposing a gag rule prohibiting, during working time, all
discussion about unions while not prohibiting discussion about
other nonwork topics during working time.
(c) Forbidding the personal possession of union literature on
the job.
(d) Advising employees that wearing union insignia violated
plant rules.
(e) Threatening employees with loss of benefits and less fa-
vorable working conditions because of their union activities.
(f) Advising employees that a wage increase was being with-
held from them because of their union activities.
(g) Promising employees a wage increase if they repudiated
the Union.
(h) Withholding a wage increase from its employees because
of their union activities.

12 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.
(i) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make the employees in the collective-bargaining unit
which was the subject of the petition and election in Case 11–
RC–6327 whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(c) Within 14 days after service by the Region, post at its fa-
cility in Orangeburg, South Carolina, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained 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 pro-
ceedings, 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 March 19, 1999.
(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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election is set aside
and Case 11–RC–6327 is severed from Cases 11–CA–18295
and 11–CA–18339 and remanded to the Regional Director to
conduct a second election when he deems the circumstances
permit a free choice.
13 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.”