Meyer's Bakeries, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 12, 2006

26-CA-021843 (N.L.R.B. May. 12, 2006)

JD(ATL)–19–06
Hope, AR

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

MEYER’S BAKERIES, INC. and
SOUTHERN BAKERIES, LLC

and CASES 26-CA-21843
26-CA-22045
CHAUFFERS, TEAMSTERS AND 26-CA-22059
HELPERS LOCAL UNION NO. 878, 26-CA-22095
affiliated with INTERNATIONAL 26-CA-22145
BROTHERHOOD OF TEAMSTERS 26-CA-22207
26-CA-22232
and

BAKERY, CONFECTIONERY, TOBACCO
WORKERS AND GRAIN MILLERS
INTERNATIONAL UNION, AFL-CIO, CLC,
LOCAL 111

and

MICHAEL W. CHAMLEE, an Individual

and

NORMAN D. WILSON, an Individual

Rosalind E. Eddins, Esq., Counsel for the General
Counsel.
Royce Stogner, President, Bakery, Confectionery,
Tobacco Workers and Grain Millers International
Union, AFL-CIO, CLC, Local 111.
Andrew M. McNeil, Esq. and Phillip J. Ripani, Esq.,
for Respondent Southern Bakeries, LLC.

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DECISION

Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was
tried in Texarkana, Arkansas on February 14, 15, and 16, 2006. The original charge
in 26-CA-21843 was filed by Chauffeurs, Teamsters and Helpers Local Union No.
878, affiliated with International Brotherhood of Teamsters, herein Teamsters Local
878, on September 7, 2004 and amended on September 21, 2004. The charge in
26-CA-22045 was filed by Michael W. Chamlee, an individual, herein Chamlee, on
April 4, 2005. The original charges in 26-CA-22059 and 26-CA-22095 were filed by
the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union,
AFL-CIO, CLC, Local 111, herein BCTGM Local 111, respectively on April 13, 2005
and May 11, 2005. The charge in 26-CA-22145 was filed by Chamlee on July 1,
2005. The original charge in Case 26-CA-22207 was filed by Teamsters Local 878
on August 30, 2005 and amended on November 2, 2005. The charge in 26-CA-
22232 was filed by Norman D. Wilson, herein Wilson, on September 19, 2005.
Based upon the allegations contained in the above-referenced charges, the Regional
Director for Region 26 of the National Labor Relations Board, herein the Board,
issued an Order Consolidating Cases Consolidated Complaint and Notice of Hearing
on November 30, 2005.

The consolidated complaint alleges a number of violations of the National
Labor Relations Act, herein the Act, by Meyer’s Bakeries, Inc., herein Meyer’s, and
by Southern Bakeries, LLC, herein Southern. There is no dispute that in February,
2005, Meyer’s initiated bankruptcy proceedings. Southern does not dispute that on
or about March 28, 2005, it hired a majority of individuals who were previously
employed by Meyer’s at Meyer’s facility in Hope, Arkansas. Southern also admits
that it assumed a duty to bargain with Teamsters Local 878 and BCTGM Local 111.

The consolidated complaint alleges that on or about August 18 or 19, 2004,
agents of Meyer’s engaged in two incidents in violation of Section 8(a)(1) of the Act.
The consolidated complaint also alleges that Meyer’s issued a warning to Chamlee
on August 20, 2004 and later disciplined Chamlee on March 17, 2005 because
Meyer’s believed that Chamlee was engaged in activities on behalf of Teamsters
Local 878. The consolidated complaint further alleges that Southern refused to hire
Chamlee on March 28, 2005 because of his concerted activities and activities on
behalf of Teamsters Local 878. It is also alleged that Southern terminated Wilson
because of his union activities and because Chamlee and BCTGM Local 111 filed
charges with the Board and employees gave testimony to the Board in the form of
affidavits.

Additionally, the consolidated complaint alleges a number of 8(a)(5) violations
by Southern. Specifically, the consolidated complaint alleges that Southern
implemented fifteen distinct unilateral changes between April 1, 2005 and October
28, 2005 without prior notice to or bargaining with Teamsters Local 878 or BCTGM
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Local 111. It is also alleged that Southern refused to meet and bargain with BCTGM
Local 111 unless BCTGM withdrew an unfair labor practice charge. The
consolidated complaint further alleges that in mid-May 2005, an agent of Southern
dealt directly with bargaining unit employees by soliciting employees’ approval
regarding a schedule change in the maintenance department. Southern and
Meyer’s filed timely answers and denied the allegations in pertinent part.

On the entire record,1 including my observation of the demeanor of the
witnesses, and after considering the briefs filed by Southern and Counsel for the
General Counsel, I make the following:

Findings of Fact

I. Jurisdiction

At all material times and prior to March 28, 2005, Meyer’s, a corporation, with
an office and place of business in Hope, Arkansas, engaged in the operation of a
commercial bakery where it sold and shipped from its Hope, Arkansas facility, goods
and materials valued in excess of $50,000 directly to points located outside the State
of Arkansas. Since on or about March 28, 2005, Southern, an Indiana limited liability
company, with an office and place of business in Hope Arkansas, has engaged in the
operation of a commercial bakery. Based upon a projection of operations since
about March 28, 2005, Southern will annually sell and ship from its Hope, Arkansas
facility goods valued in excess of $50,000 directly to points located outside the State
of Arkansas. Meyer’s admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act for the relevant time period.
Southern admits, and I find, that is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act during the relevant time period.
Meyer’s and Southern admit and I find that Teamsters Local 878 and BCTGM Local
111 are labor organizations within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Background

Prior to March 28, 2005, Meyer’s operated a commercial bakery facility in
Hope, Arkansas. There were approximately 250 to 300 production and sanitation
department employees represented by BCTGM Local 111. The collective bargaining
agreement in effect on March 28, 2005, covered the period from June 16, 2003 to
1 Prior to the commencement of the hearing and during pre-hearing telephonic conferences,
Meyer’s participated through its legal counsel. Meyer’s did not however, participate in the
hearing and did not file a post-hearing brief. Citing United States Service Industries, 324
NLRB 834 (1997), Counsel for the General Counsel argues in her post-hearing brief that
Meyer’s had sufficient and adequate notice of the hearing and elected not to participate in the
hearing. I agree, and find that Meyer’s was afforded a full opportunity to participate without
violation of any due process rights.
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June 16, 2007. There were approximately 60 employees classified as shipping,
receiving and maintenance employees who were represented by Teamsters Local
878. The collective bargaining agreement in effect on March 28, 2005 between
Meyer’s and Teamsters Local 878 covered the period for June 13, 2004 to June 13,
2008.

As Vice-President of Human Resources for Meyer’s, Rick Ledbetter reported
directly to Meyer’s President; Jeremy Hanna. Linda Burke was Meyer’s Assistant
Human Resources Manager. Mike Kraft was employed as Plant Manager for
Meyer’s during the relevant period prior to November 1, 2004. Michael Nelson
served as Plant Manager for Meyer’s after November 1, 2004 and until Southern
began operation of the Hope, Arkansas facility on March 28, 2005.

After Southern began the operation of the Hope, Arkansas facility on March
28, 2005, Ledbetter became Vice President for Operations and Burke became the
Human Resource Manager. Michael Nelson became Southern’s Plant Manager.

B. Meyer’s Discipline of Michael W. Chamlee

1. Chamlee’s August 20, 2004 Discipline

a. Evidence Presented by the Parties

Chamlee was employed by Meyer’s for approximately ten and a half years.
Chamlee worked in maintenance and served as a shop steward for the last three to
four years of his employment. As part of his duties as steward, Chamlee interpreted
the collective bargaining agreement and represented employees in the grievance
procedure of the collective bargaining agreement. Chamlee estimated that he filed
approximately two to three grievances each month. He also served on the
bargaining committee for the July 2004 negotiations between Meyer’s and Teamsters
Local 878. Human Resources Vice President Rick Ledbetter, herein Ledbetter,
testified that Chamlee was very direct and outspoken and probably filed more
grievances than other stewards. He recalled that Chamlee was also regarded as
outspoken during contract negotiations. Maintenance Manager B. J. Turner also
acknowledged that Chamlee was an active steward in filing grievances. Teamsters
Local 878 Vice President Carlton Collins testified that on occasion Chamlee spoke in
a raised voice and became upset during grievance meetings. Collins explained that
Chamlee became emotional because he was adamant about wanting the company to
follow the collective bargaining agreement. Collins denied, however, that he ever
observed Chamlee as violent or threatening in any way.

During the 2004 contract negotiations, there were discussions about
bargaining unit employees’ temporary assignments to salaried positions. Chamlee
testified that there had been occasions when bargaining unit employee were selected
to fill in for supervisors during absences for vacation or illness. Because employees
were uncomfortable with the dual roles, Teamsters Local 878 proposed a clause
limiting a bargaining unit employee’s substitution as a supervisor to only once during
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a six-month period. The Union proposed that if the employee left the bargaining unit
to temporarily fill a supervisory position more than once during a six-month period,
the employee lost his seniority and his day shift bid job. Meyer’s accepted the
proposal.

In mid-August 2004, Chamlee discovered that bargaining unit employee
Kenneth Givens was substituting for Maintenance Shift Supervisor Jimmy Ayers. On
August 19, 2004, Chamlee went to the office of Maintenance Manager and Chief
Engineer Richard Stewart, herein Stewart. Chamlee told Stewart that Givens’
temporary assignment to the supervisory position would jeopardize his bargaining
unit seniority and his day shift bid job. Stewart did not agree with Chamlee’s
interpretation of the new contract provision. Chamlee and Stewart argued about the
interpretation of the contract provision for approximately 10 to 15 minutes and their
voices became raised. Chamlee recalled that both he and Stewart used the word
“damn” in reference to the contract. Chamlee denied calling Stewart any names or
referring to him in any derogatory manner. Chamlee denied that he refused any
directive or made any threat to Stewart during the conversation. Chamlee testified
that when he decided that the discussion was not productive, he left the office,
closing the door “rather hard.” After leaving the office, Chamlee looked back through
Stewart’s glass door and saw Stewart walking toward the door. Chamlee returned to
the office and asked Stewart if he had anything else to say to him. Stewart told him
that he was tired of Chamlee’s attitude toward management and the way that he was
“handling” his position as a union steward. Stewart added that he was not going to
stand for it and that he planned to give Chamlee a “write-up.”

Later that same morning Chamlee not only spoke with Givens about the
possible risk to his seniority, he also spoke with Ledbetter about his concerns about
the application of the contract provision. While he was in Ledbetter’s office, Plant
Manager Mike Kraft joined the discussion. Chamlee repeated the same concerns to
Ledbetter and to Kraft that he had shared with Stewart. Both Ledbetter and Kraft
interpreted the contract similarly to Stewart. During the time that Chamlee was
speaking with Ledbetter and Kraft, Stewart joined the discussion. While Chamlee
again repeated his concerns, all three managers repeated their opposing
interpretation of the contract. Before Chamlee left the office, however, Stewart again
told Chamlee that he didn’t like the way that Chamlee was handling his job as union
steward and he didn’t like Chamlee’s attitude toward management. Kraft added that
he also did not like Chamlee’s attitude and that he had previously heard Chamlee’s
arguments with members of management concerning “union situations.” Chamlee
testified: “And that he told me that he didn’t care whether I was a damn union steward
or not but the next time he was going to fire my ass.” Chamlee also testified that
Kraft said something about “how he had reached his level in management.” Chamlee
admitted that he responded: “Mr. Kraft, you’ll never reach my level.” Stewart again
stated that he was going to discipline Chamlee.

On August 20, 2004, Chamlee received an Employee Warning Notice. The
notice included the following language: “Michael has a problem maintaining his
temper with management. Inappropriate behavior such as screaming, slamming
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doors, and cursing will not be tolerated in the work place towards management.”

Representatives of Meyer’s and Teamsters Local 878 met on February 3,
2005 to discuss discipline that had been issued to two employees. Counsel for the
General Counsel offered into evidence a February 7, 2005, memorandum from
Ledbetter to Burke concerning the meeting. While Burke could not recall the
meeting, she acknowledged that because of the memorandum, she must have
attended and taken notes. In the February 7, 2005, memorandum, Ledbetter
reminded Burke to change the employees’ written warnings to verbal warnings as a
result of the February 3 meeting. He further added: “Also, please check your notes
from the meeting and make sure you have Chamlee admitting ‘I understand I have an
attitude.’”

b. Factual and Legal Conclusions

The August 20, 2005, Employee Warning Notice given to Chamlee lists his
inappropriate behavior as “screaming, slamming doors, and cursing.” There is no
dispute that Chamlee’s August 2005 discipline resulted from his behavior arising out
of a discussion with management concerning a potential contractual violation.

The record reflects that Chamlee filed as many or more grievances as any
other steward and had a reputation for exuberance and passion in asserting
employee rights under the contract. Ledbetter testified that Chamlee sometimes
cursed and became excited during his meetings with management. Neither Chamlee
nor the Union denies that Chamlee has raised his voice and cursed in grievance
meetings.

The Board has long held that processing and presenting grievances is
concerted activity protected by Section 8(a)(1) and (3) of the Act. Bowman
Transportation, Inc., 134 NLRB 1419 (1961). Additionally, the presentation of a
grievance is protected activity, even if the grievance in question is not formally stated
or does not take place under the auspices of a contractual grievance procedure.
Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1033 (1976). Thus, it is
well established that union stewards and representatives are protected by the Act
when presenting grievances to an employer. The Union Fork and Hoe Company,
241 NLRB 907, 908 (1979). For an employee to forfeit the protection of the Act while
processing a grievance or engaging in protected concerted activity, the employee’s
behavior must be so violent, or of such an obnoxious character, as to render the
employee wholly unfit for further service. Clara Barton Terrace Convalescent Center
at 1034.

The Board has long held that “a line exists beyond which employees may not
with go with impunity while engaging in protected concerted activities and that if
employees exceed the line the activity loses its protection. That line is drawn
between cases where employees engaged in concerted activities exceed the bounds
of lawful conduct in a moment of animal exuberance or in a manner not motivated by
improper motives and those flagrant cases in which the misconduct is so violent or of
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such a character as to render the employee unfit for further service.” Prescott
Industrial Products Company, 205 NLRB 51, 51-52 (1973). In essence, the Board
allows a certain degree of leeway in terms of the way employees conduct themselves
in the context of concerted protected activity. While flagrant, opprobrious conduct
may be sufficient to cause an employee’s concerted activity to lose the protection of
the Act, “impropriety alone does not strip concerted conduct of statutory protection.”
Aroostook County Regional Ophthalmology Center, 317 NLRB 218, 220 (1985), enfd.
denied in part, 81 F.3d 209 (D.C. Cir. 1996).

Ledbetter asserted that Stewart previously warned Chamlee to refrain from
cursing and “being aggressive in the workplace.” He defined “aggressive” as
Chamlee’s getting “into people’s personal space.” Stewart, however, did not testify
and Ledbetter did not produce any prior discipline for Chamlee. Chamlee testified
that while Stewart had commented on his prior outbursts, Stewart had never
disciplined him. While Ledbetter asserted that he had heard Chamlee use profanity
with Management, he conceded that it had always been in the context of a grievance
meeting or negotiation session.

In Atlantic Steel Co., 245 NLRB 814 (1979), the Board articulated the factors
to be balanced in determining whether an employee’s protected concerted activity
loses the protection of the Act due to opprobrious conduct. The factors are (1) the
place of the discussion; (2) the subject matter of the discussion; (3) the nature of the
outburst; and (4) whether the outburst was provoked by unfair labor practices.
Clearly, the conduct in issue occurred during the course of discussions about the
interpretation of the collective bargaining agreement and within the confines of
management offices. There is no evidence that Chamlee’s alleged outburst
interrupted the work process or was even overheard by bargaining unit employees.
While there is no evidence that Chamlee’s conduct was provoked by the employer’s
unfair labor practice, the conduct was in response to what Chamlee perceived to be a
potential contract violation.

Based upon the overall evidence, it does not appear that Chamlee exceeded
the bounds of lawful conduct in his interchange with management on August 20.
Undeniably, he used a loud voice and perhaps inappropriately slammed Stewart’s
door. There is no evidence, however, that Chamlee personally directed any profanity
or derogatory statements toward Stewart, Ledbetter, or any other Meyer’s
management official. Much more offensive and disruptive behavior by an employee
has failed to lose the protection of the Act. In NLRB v. Thor Power Tool Co., 351
F.2d 584, 587 (7th Cir. 1965), the Court affirmed the Board’s finding that an employer
violated the Act when it discharged a grievance committeemen who, during the
course of a grievance meeting, called the employer’s representative a “horse’s ass.”

The evidence as a whole demonstrates that Meyer’s discipline to Chamlee
was motivated by Chamlee’s protected concerted activity. As the Board explained in
a recent decision involving an employee’s discipline for allegedly engaging in
protected concerted activity, the appropriate analysis is whether the conduct was
protected under the Act, and if so, whether the employee lost the protection at any
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point. Noble Metal Processing, Inc., 346 NLRB No. 78, slip op. at 1 (2006).
Inasmuch as Chamlee was engaged in protected concerted activity and finding that
he did not lose the protection of the Act, I find that his August warning was violative of
Section 8(a)(1) and (3) of the Act.

Because Meyer’s motivation is not issue, an analysis under Wright Line2 is not
appropriate. Were it appropriate however, I would also find that Counsel for the
General Counsel has made a prima facie showing sufficient to support the inference
that Chamlee’s protected conduct was a “motivating factor” in Meyer’s decision to
discipline Chamlee. Meyer’s General Plant Rules provided that an employee could
be terminated for “fighting, threatening injury, provoking, or intimidating another
person.” The rules also provided for discipline for behavior that is disruptive or
offensive to others. Inasmuch as there is no evidence of how or when these rules
were applied to other employees, there is no way to ascertain Meyer’s uniformity of
discipline. Accordingly, even under a Wright Line analysis, the evidence does not
support a finding that Chamlee would have been disciplined in the absence of his
protected conduct.

2. Chamlee’s March 17, 2005 Discipline

a. Evidence Presented by the Parties

Chamlee testified that prior to his receiving a second disciplinary warning on
March 17, 2005, there were discussions among employees about Meyer’s financial
difficulties and its bankruptcy filing. He recalled that he had heard that if a purchaser
did not buy the Meyer’s facility through a bid process, all of the employees would lose
their jobs by the end of March. He asserted that because employees were not able
to take their scheduled vacations, employees became concerned about losing their
earned vacation benefits as well as their retirement.

On February 19, 2005, Chamlee telephoned Meyer’s Benefits Manager Betty
Steele at her home at approximately 9:30 p.m. Chamlee testified that he telephoned
Steele to inquire about the security of the employees’ retirement fund. Steel assured
him that the retirement was secure. Steele recalled that she told him that his
retirement and everyone’s retirement was “fine” and for him not to worry about it.
Chamlee testified that prior to calling Steele, he had spoken with an agent of the FBI
because he had felt that if a corporation could lose millions of dollars, there might be
some kind of impropriety. He told Steele about his contact with the FBI. He asked
her if she knew of anything that might be illegal activity by management. She
assured him that she knew of no improprieties.

Steele explained that prior to Chamlee’s telephone call; she received calls
from other employees after working hours. She recalled that several employees had
2 Wright Line, 251 NLRB 1083, 1088, fn. 11 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
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questions concerning their retirement and COBRA. She added that during this time
of changeover for the facility, the entire town had been in a stir and during this period
she received calls “all the time” concerning such matters. She was unaware of any
policy that prohibited employees from contacting supervisors or managers at home.

The next morning, Steele mentioned Chamlee’s telephone call to Sue Saladin;
Meyer’s Payroll Manager. Saladin reminded Steel of Ledbetter’s previous admonition
to notify management of any derogatory comments made about management.
Saladin warned that if Steele did not inform Ledbetter of the telephone call, she might
lose her job. In a memorandum to Ledbetter dated February 22, 2005, Steele
outlined the details of her telephone call. Steele included in the memorandum
Chamlee’s comments about having contacted the FBI. She included in the
memorandum: “If indeed the FBI has been notified, I felt you should be prepared for
the visit.” Steele also added that Chamlee told her that he was sorry for calling her at
home but she had been the only person he trusted in the front office and he wanted
to ask her some questions. She did not indicate that Chamlee’s telephone call was
frightening or threatening in any way.

Chamlee recalled that a day or two after his telephone call to Steele, he was
called to Ledbetter’s office to meet with Ledbetter and Plant Manager Michael E.
Nelson. Ledbetter asked Chamlee if he had telephoned Steele and Chamlee
acknowledged that he had. Ledbetter told him that it was against company policy for
a union steward to call a member of management at home to discuss potential union
business. Chamlee testified that he responded by asking Ledbetter to show him the
plant rule that prohibited telephoning a member of management at home. Neither
Southern nor Meyer’s presented any evidence of a rule prohibiting such a telephone
call to a manager’s home. Additionally, Burke testified that she was unaware of any
Meyer’s policy prohibiting employees from contacting supervisors at home.

On March 17, 2005, Chamlee was issued a written warning. The disciplinary
form indicates that Chamlee received the second written warning for violation of Rule
#5 in the “Group A” offense category. The Facility Rules and Disciplinary Procedures
in effect at that time identified Rule #5 in a “Group A” offense as: “Violation of the
Company’s policy on harassment, including fighting, providing a fight, intimidation,
use of threatening or profane language, or otherwise creating a hostile or unpleasant
work environment.” The attached memorandum to Chamlee’s file indicates that the
warning was given for “Harassment - After Business Hours Telephone Call to a
Manager’s Home.” The memorandum described the discussion during the
disciplinary interview with Chamlee. The memorandum documented that Ledbetter
told Chamlee that while it was within Chamlee’s role as a union steward to question
anything applicable to business, he was required to follow proper channels and
required to conduct business during “normal business hours.” Ledbetter explained to
Chamlee that he must not telephone members of management at home and/or
outside business hours concerning “such matters.” Chamlee was told that he could
contact his immediate supervisor or the Plant Manager if the subject matter related to
immediate needs of the job or the operation of the facility.

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Ledbetter testified that he was involved in the decision to give Chamlee the
March 2005 warning and that the discipline was based upon Chamlee’s telephone
call to Steele. He maintained that Steele told him that she had been upset by
Chamlee’s calling her in the middle of the night. Steele testified, however, that when
she spoke with Ledbetter about the telephone call, she did not tell him that she had
felt harassed or intimidated by Chamlee’s telephone call and she had not indicated
that she had been upset by the telephone call.

b. Factual and Legal Conclusions

The March 1, 2005 memorandum to Chamlee’s personnel file documents the
basis for Chamlee’s discipline as harassment in telephoning a member of
management after business hours. The content of the memorandum, however,
reflects that Chamlee was counseled concerning the proper channels and time frame
for conducting union business. As discussed above, where violations turn on an
employer’s motivation, the Board applies the analysis set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under that analysis, the General Counsel must make an initial showing that
(1) the employee was engaged in protected activity; (2) the employer was aware of
the activity; and (3) the activity was a substantial or motivating reason for the
employer’s action. Golden State Foods Corp., 340 NLRB 382, 385 (2003). If
General Counsel makes the required initial showing, the burden shifts to the
employer to prove that it would have taken the same action even in the absence of
the employee’s union activity. Manno Electric, 321 NLRB 278, 280 (1996). Based
upon the testimony of both Chamlee and Steele, it is apparent that the substance of
the telephone conversation dealt with how Meyer’s financial situation would affect
employee pension benefits. Accordingly, Chamlee’s call related to personnel
concerns on behalf of all Meyer’s employees and constituted protected concerted
activity within the classic sense.3

In Consumers Power Co., 282 NLRB 130, 132 (1986), the Board observed
that where an employee is disciplined for conduct that is part of the “res gestae of
protected activity,” the relevant question becomes whether the conduct is so
egregious to remove it from the protection of the Act, or of such a character as to
render the employee unfit for service. As discussed more fully below, neither the
testimony of Steele nor any other witness supports a finding that Chamlee’s conduct
was of such an egregious nature as to render Chamlee unfit for service. In fact I note
that the disciplinary action notice specifically includes a hand-written conclusion that
the circumstances do not warrant termination. Accordingly, there is insufficient
evidence that Chamlee’s conduct lost the protection of the Act.

3 The conduct of a single employee may rise to protected concerted activity where the
employee acts on behalf of fellow employees in regard to conditions of employment.
Guardian Industries Corp., 319 NLRB 542, 549 (1995).
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The evidence reflects, therefore, that Chamlee was engaged in protected
conduct and there is no dispute as to employer knowledge. While there is no direct
evidence of animus, such animus may be inferred. The Board has noted that
because there is seldom direct evidence of unlawful motivation, such motivation may
be inferred from the totality of the circumstances. Abbey’s Transportation Services,
284 NLRB 698, 701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988).

Rule 5 of Meyer’s Facility Rules and Disciplinary Procedures is cited as the
basis for Chamlee’s March 2005 warning. The rule provides for discipline in the
event of a violation of the company’s policy on harassment, including fighting,
provoking a fight, intimidation, use of threatening or profane language, or otherwise
creating a hostile or unpleasant work environment. In relying upon this work rule,
Meyer’s relied solely upon Chamlee’s single telephone conversation with Steele. In
her sworn testimony, Steele indicates that she reported her conversation with
Chamlee only because she was urged to do so by Payroll Manager Sue Saladin.
Saladin cautioned Steele that if she did not report the conversation to Ledbetter, she
might be at risk for discharge. Steele testified without hesitation that when she
personally spoke with Ledbetter, she did not tell him that she felt harassed or
intimidated by Chamlee’s call or indicate that she was upset by the call. Steele
testified that she neither recommended nor requested discipline for Chamlee. I found
Steele to be a totally credible witness. While Steele confirmed that she was not
offered a job by Southern, there is no evidence of bias toward Meyer’s and I find no
basis to discredit her testimony. Additionally, I note that the warning was presented
to Chamlee on March 17, 2005. The memorandum to the file is dated March 1, 2005
and the incident upon which it is based occurred on February 19, 2005. Thus, the
discipline was issued only seven days before Southern opened the application
process for hiring Meyer’s employees. Certainly Chamlee already had a warning in
his file that would have met Southern’s elimination criteria. It is rather suspicious,
however, that Meyer’s added yet another warning to Chamlee’s record at that
particular time and based it upon an incident occurring more than a month earlier. In
her post-hearing brief, Counsel for the General Counsel points out that Ledbetter’s
involvement in the discipline as well as the timing of the discipline supports a finding
of unlawful motivation. The evidence reflects that as Meyer’s Vice President of
Human Resources, Ledbetter was more often involved in reviewing or endorsing
discipline given by lower level supervisors and managers. With respect to Chamlee’s
March warning, however, Ledbetter conducted the disciplinary interview with
Chamlee and was instrumental in the issuance of the discipline. As discussed more
fully in another section of this decision, it was during this same time period that he
was engaged in ongoing discussions with Harlan Bakeries (Southern) concerning the
purchase of the facility. The disciplinary action form is dated seven days before
Chamlee submitted his application for employment with Southern. Certainly the
parties were mindful of the fact that if Southern hired a majority of the Meyer’s
employees, a bargaining obligation would attach. It was therefore, arguably
advantageous to both Meyer’s and Southern that the transition occur without
Southern’s requirement to hire an admittedly outspoken and aggressive steward.

Ledbetter asserts that Chamlee was disciplined for violating a company policy
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against contacting managers at home. Other than Ledbetter’s assertion, there is no
record evidence that such a policy existed. There is no mention in Meyer’s facility
rules and disciplinary procedures of such a rule. Additionally, both Steele and Burke
testified that they were not aware of such policy.

Based upon Steele’s credited testimony and the record evidence as a whole,
the reasons advanced for Chamlee’s discipline appear to be false and without
foundation. When a respondent advances reasons which are found to be false, an
inference that the true motive is an unlawful one may be warranted. Shattuck Denn
Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966); Limestock Apparel Corp., 255 NLRB
722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). Additionally, the Board has found that
a finding of pretext defeats any attempt by a respondent to show that it would have
taken the same action against the employee absent his protected activity. Syracuse
Scenery & Stage Lighting Co., Inc., 342 NLRB No. 65, slip op. at 8 (2004).
Accordingly, I find that Meyer’s violated Section 8(a)(3) and (1) of the Act by issuing
the March 17, 2005, warning to Chamlee.

3. 8(a)(1) Allegations Involving Chamlee

a. Complaint Allegations and Evidence Presented

Counsel for the General Counsel alleges that Stewart threatened Chamlee on
or about August 18 or 19, 2004 with discipline and an unspecified reprisal because
he engaged in union and other protected activity. Counsel for the General Counsel
also alleges that Kraft threatened Chamlee on or about August 18 or 19, 2004 with
discharge because he engaged in union and other protected activity. As discussed
above, Chamlee testified concerning his August 2005 conversations with both
Stewart and Kraft concerning contract provision. Neither Stewart nor Kraft testified in
the hearing. Accordingly, Chamlee’s testimony remains unrebutted concerning these
alleged 8(a)(1) violations.

b. Factual and Legal Conclusions

It is apparent that Chamlee continued to assert his concerns about a potential
contract violation in the face of disagreement by three management officials. Despite
the fact that his concerns did not find favor with the managers, he relentlessly
persevered. The fact that both alleged threats occurred in the context of this pursuit
does not diminish the coercive nature of the statements. The Board has found that
threats of job loss violate 8(a)(1) “because these acts reasonably tend to coerce
employees in the exercise of their rights, regardless of whether they do, in fact,
coerce.” Clinton Electronics Corp., 332 NLRB 479 (2000). See also Central
Transport v. NLRB, 997 F.2d 1180, 1191 (7th Cir. 1993).

Both statements alleged as 8(a)(1) violations arise during the course of
Chamlee’s conversations with Stewart and Kraft concerning a potential contract
violation. Both unrebutted threats relate to how Chamlee conducted himself as a
union steward. Although Ledbetter recalled meeting with Chamlee in his office, he
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did not have a recollection as to the substance of the discussion. He did not deny
the threats Chamlee attributed to Stewart and Kraft during the discussion in
Ledbetter’s office. As discussed above, I do not find that Chamlee’s conduct in these
discussions with management officials was of such an egregious nature to take it
outside the protection of the Act. Accordingly, I find, that the threats of discipline
made by Stewart and Kraft constitute coercion and restraint in violation of Section
8(a)(1). Cleveland Pneumatic Co., 271 NLRB 425 (1984).

C. Harlan Bakeries Interest in Purchasing Meyer’s

During the last three years of its operation, Meyer’s experienced increasing
financial difficulties. Beginning in early 2004, Meyer’s began to actively market the
bakery for sale. Ledbetter was instructed to assist in the marketing of the business to
prospective buyers.

Hugh Harlan is the President of Harlan Bakeries in Avon, Indiana. Hal Harlan
and Doug Harlan serve as Executive Vice-Presidents for Harlan Bakeries and Paul
Hayden has been employed as the Chief Financial Officer for Harlan Bakeries since
1997. Hayden testified that for four to five years prior to 2005, Harlan Bakeries had
been aware that Meyer’s was for sale. In November 2004, however, Meyer’s
President Hanna specifically contacted Harlan Bakeries about purchasing the Hope,
Arkansas facility.

When Hayden and other Harlan representatives toured the Meyer’s facility in
November 2004, Meyer’s presented an overview of the company and specifically
cited potential areas of change for the company’s financial recovery. Hayden
recalled that the areas related to savings in employee benefits and wages as well as
cost reductions in sales staff, operations, and administration. From November 2004
until approximately February 6th or 7th, Harlan Bakeries conducted a due diligence
purchase assessment and Hayden maintained ongoing contact with Ledbetter and
other Meyer’s officials concerning Harlan Bakeries’ purchase of Meyer’s.

Hayden testified that because Meyer’s had not conducted a financial
statement audit, the due diligence period was required to review Meyer’s financial
situation and to evaluate the validity of Meyer’s “business turnaround strategy.”
While Hayden requested information from Meyer’s, he revised the strategic
turnaround plan without Meyer’s input concerning implementation. Hayden testified
that during the due diligence period, Harlan Bakeries determined that Meyer’s was
operating at a loss of close to $13 million a year.

When Hayden first visited the Hope facility in November, 2004, Ledbetter
offered suggestions as to how Meyer’s could cut costs by meeting with the unions to
obtain concessions and reductions in the collective bargaining agreements. There
were discussions about modifications of the collective bargaining agreements as a
pre-requisite to reaching an asset purchase agreement. In a letter dated December
14, 2004, Ledbetter outlined a projection of how costs could be reduced with
bankruptcy and without bankruptcy. The letter and summary also included an
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excerpt from a law review article discussing a Supreme Court case and a debtor’s
rejection of a collective bargaining agreement. After additional discussion with
Meyer’s representatives, Harlan Bakeries asked Ledbetter to put together a summary
of what he believed that he could accomplish if he were to negotiate with each union.
In Ledbetter’s response, he stated that Meyer’s could ask for collective bargaining
agreement amendments in wages, rules, benefits, and fringes. Ledbetter’s summary
set forth the specific savings that would be obtained by changes in work rules and
reduction in wages and benefits. In summary, the total savings from all of the
proposed concessions and contract modifications was projected at only
$2,316,000.00. Hayden testified that while this sounded like a great deal of money, it
was not going to be a sufficient cut in costs for a company that was losing 12 and 13
million dollars each year.

Hayden recalled that Harlan Bakeries reviewed every section of Meyer’s
operation to find cost reductions. In addition to the labor costs, the analysis included
a review of sales as well as customer reduction and a product offering reduction.
During the course of the review, Harlan Bakeries determined that rather than having
Meyer’s negotiate new collective bargaining agreements with the unions, all
employees would be hired under the terms and conditions of employment set by the
new company. Following the period of due diligence, Harlan Bakeries established
Southern for the sole purpose of purchasing Meyer’s assets.

D. Meyer’s Bankruptcy

On or about February 7, 2005 Meyer’s filed for Chapter 11 bankruptcy
protection under Section 363 of the Bankruptcy Code. A copy of the Asset Purchase
Agreement was attached to the petition. Upon approval by the Bankruptcy Court, the
bankruptcy petition provided for the transfer of assets to Southern “free and clear” of
all liens, encumbrances, and interests. On or about the same day, Ledbetter notified
representatives of both BCTGM Local 111 and Teamsters Local 878 of the
bankruptcy filing. Meyer’s and Southern anticipated that the bankruptcy process
would take approximately 60 days. Hayden testified that the bankruptcy petition was
filed on Super Bowl Sunday because the credit source for the facility set February 6,
2005 as the deadline for signing the asset purchase agreement in order to avoid
Chapter 7 bankruptcy. Ledbetter testified that in late February or early March, he
also met with representatives of the unions to discuss the bankruptcy and the
potential sale of the facility.

Ledbetter held meetings on February 7 to inform employees of the bankruptcy
filing and the potential purchase of assets by the Harlan Group. Ledbetter recalled
that when he met with employee groups, employees asked what would happen if
there was no buyer for the facility. Ledbetter testified that he told employees that if
there was no buyer, the facility would close. Ledbetter also told employees that the
Harlan Group did not have unions at their other facilities. Ledbetter explained to the
employees that the purchase provision of the bankruptcy petition provided that the
purchaser would not assume Meyer’s liabilities and would not adopt Meyer’s
contracts including the collective bargaining agreements. Ledbetter testified that he
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also told employees that if the new owner hired more than 50% of the employees, the
new owner would have an obligation to sit down and bargain with the unions.

During the period pending the decision of the bankruptcy court, Hal Harlan
also attended meetings with the Meyer’s employees. Ledbetter recalled that
employees asked Harlan about the presence of unions at Harlan’s other facilities.
Harlan explained that he didn’t feel that third parties were necessary and that he
preferred to deal directly with his employees. Ledbetter recalled that during some of
the meetings, Harlan also told employees that he would respect employees’ freedom
to join unions and he would sit down and bargain with the union if the “people elected
to be represented by the union.”

On March 17, 2005, the United States Bankruptcy Judge approved the
Purchase Asset Agreement, herein APA, between Meyer’s and Southern for the
acquisition of the Hope, Arkansas facility. The Order provided that except for
liabilities expressly assumed under the APA, Southern would not be liable for any
liens or claims against Meyer’s and Southern would have no successor or vicarious
liability of any kind or character with respect to Meyer’s. Section 2.2 of the APA
specifically confirmed that the collective bargaining agreements with Teamsters Local
878 and BCTGM Local 111 were excluded from the transaction. Hayden testified
that the Court’s approval of the APA was conditioned upon the completion of all
agreement terms within a 10-day period. Upon the Court’s Order, Southern was to
assume ownership of the assets and control of the facility on March 28, 2005.

E. Southern’s Acquisition of the Meyer’s Facility

After the Bankruptcy Court approved the APA, Southern had 10 days in which
to staff its bakery and prepare for operating the bakery. Hayden testified that it was
Southern’s initial position to offer every Meyer’s employee an opportunity to apply for
employment. Southern also decided, however, to downsize the work force and
eliminate 50 to 75 production jobs. Based upon Hayden’s recommendation, the
Southern Executive Committee established hiring criteria for Meyer’s employees on
or about March 20, 2005. The criteria evaluated employees with respect to drug
usage, safety, discipline, and attendance. Because Southern wanted a drug-free
work force, everyone was required to undergo drug testing. In order to have a safe
work force, Southern determined that any individual who had any accidents during
the prior 12-month period was not eligible for employment. Any employee with a
written disciplinary action or greater during the prior 12-month period was not eligible
for employment. An employee with five or more unexcused absences during the
prior 12-month period was not eligible.

F. The Application Process for Meyer’s Employees

On March 24, Southern representatives began meetings with Meyer’s
employees concerning application for employment. Southern used the Harlan
Bakeries application form and inserted the Southern logo. A questionnaire covering
the employment criteria was attached to the application form. Hayden spoke with
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employees and explained his background and affiliation with the Harlan family. Hal
Harlan was present at the meetings and told employees that everyone from Meyer’s
would have an opportunity to apply for a position with Southern. Hayden recalled
that Harlan told employees that he would offer everyone at Meyer’s an opportunity to
apply for positions at Southern under Southern’s terms and conditions of
employment.

Hayden recalled that during the March 24, 2005, meetings with employees,
Harlan explained the purchase transaction. He told employees that Southern was
purchasing Meyer’s assets. Harlan explained that Southern was not assuming any
liabilities and very few contracts. He explained that Southern would not assume the
existing collective bargaining agreements. Southern’s wage scale and the Benefit
Plan Summary were distributed to employees. The summary included the insurance
plans for medical, dental, life, accidental death, and dismemberment. The summary
also dealt with the short-term and long-term disability plans as well as the retirement
and savings plan. The summary’s reference to the holiday and vacation plans
outlined the annual holidays and the vacation weeks as allowed by seniority. Hayden
recalled that employees were told that the employee handbook had not been
finalized at that point and would be provided at a later time.

During the meeting, employees asked Harlan if there were unions at any of his
other bakeries or businesses. He told employees that he did not have any other
businesses where employees were represented by a third party. He explained that
he liked to work with his employees directly and he didn’t feel that it was necessary
for them to be represented by a third party. Hayden also recalled that Harlan told
employees that if they chose to be represented by a third party, he would respect
their wishes and deal with the third party.

Hayden recalled that employees were told that they would be paid straight
time for working holidays and overtime would be based upon working in excess of 40
hours rather than over 8 hours. Hayden also recalled that a maintenance employee
asked about the possibility of changing the maintenance work schedule that would
allow maintenance employees to have occasional time off on weekends. Harlan
responded that he would be open to looking at the schedule to make it more
accommodating for employees, conditioned upon there being an adequate workforce
available to do the proper preventive maintenance and to keep the production lines
operational. Hayden did not recall any discussion with respect to premium pay for
Sundays, the job bidding procedure, or whether employees would be allowed
personal days off. Harlan told employees that he would honor their years of service
for determining the amount of vacation to which they would be entitled. Burke
attended meetings with employees on March 24 and March 28. She recalled that
she was in and out of the meetings and had not been present during the entire
meetings. She did not recall any discussions during the meetings concerning union
bulletin boards, overtime pay, Sunday premium pay, double pay for working seven
consecutive days, reductions in holiday pay, or the job bidding procedure.

Employees were told that they were to complete the application on March 24th
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or March 25th and they would be contacted over the weekend if they were to be given
a “new hire” package. Approximately two days prior to the March 24 meeting with
employees, Hayden asked Ledbetter to compile a list of anyone who had failed the
attendance, safety, or disciplinary criteria. Meyer’s Assistant Human Resources
Manager; Linda Burke, was directed to compile the information for Hayden. Burke
explained that she retrieved the information from their Human Resource Information
System or HRIS system by keying in the dates and the request for written warnings.
Based upon her query, the computer system generated a list of employees receiving
written warnings from March 28, 2004 to March 28, 2005. Burke explained that she
normally input the issuance of written warnings into the computer system within a
week or two of the issuance. Burke testified that when she generated the list, she
had not known its purpose and had not been informed of the hiring criteria to be used
by Southern. Burke also testified that when she generated the list for Ledbetter, she
made no independent search for employees with warnings during the specific time
period.

On either March 24 or 25, Hayden received the list of 17 employees who had
received a written warning or greater discipline during the previous 12 months. One
employee was identified as failing the safety criteria and no employees failed the
attendance criteria. Upon receiving the information from Ledbetter, Hayden told
Ledbetter that Southern would not hire any employees who did not meet the hiring
criteria. As of March 21, 2005, Meyer’s employed 387 employees. On or about
March 28, 2005, Southern hired 319 of the Meyer’s employees. Approximately 12 to
14 of Meyer’s salaried employees were not hired by Southern.

Southern conducted meetings with the employees who met the hiring criteria
on March 28, 2005. The employees were given “new-hire” packages that included a
copy of Facility Rules and Disciplinary Procedures. Employees were told that they
would later receive a copy of the Employee Handbook that contained normal
business rules. Employees were also given a copy of the wage rates that were
designated as “Plant Wages Revised March 28, 2005.” There is no dispute that the
wage rate schedule and classifications were different than those existing prior to
March 28, 2005.

Ledbetter testified that the Employee Handbook that was later distributed to
employees memorialized the policies that were effective when Southern initiated
operations. He could not recall the specific date in which the Handbook was
distributed, however he believed it to be sometime in May. A copy of the Handbook
was distributed with employee paychecks.

G. Whether Southern Failed to Hire Chamlee in Violation of 8(a)(3)

Southern maintains that because Chamlee’s name was included on the list of
employees having received a written warning during the previous 12 months, he was
not offered employment with Southern. In paragraph 15 and 16 of the consolidated
complaint, General Counsel alleges that Southern unlawfully refused to hire
Chamlee. In argument, Counsel for the General Counsel maintains that because
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Meyer’s unlawfully disciplined Chamlee in August 2004 and March 2005, Chamlee
was unlawfully precluded from employment with Southern.

There are three necessary elements that General Counsel must prove in order
to establish an unlawful refusal to hire (1) the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful conduct; (2) the applicant had
experience or training relevant to the announced or generally known requirements of
the positions for hire; and (3) antiunion animus contributed to the decision not to hire
the applicant. FES, 331 NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). With
respect to the first and second requirements of FES, It is undisputed that Southern
was hiring. There is no evidence that Chamlee lacked the experience and training to
perform the job. Moreover, Maintenance Manager Turner described Chamlee as one
of his better employees.

As evidence of animus in hiring, General Counsel presented the testimony of
sanitation employee Charlene Moore. Moore explained that while she was employed
by Meyer’s, she cleaned the office of George Hainey. Although she could not
provide his title, she asserted that he was a member of Meyer’s management. No
evidence was offered to the contrary. During the sixty-day period following Meyer’s
bankruptcy filing, she spoke with Hainey about the possibility of her employment with
Southern. He told her that he did not believe that she had anything to worry about
because only the employees who failed the drug test, had excessive attendance
“trouble,” or were “trouble makers” would not be hired. Moore estimated that the
conversation occurred toward the end of February 2005. Moore also recalled having
a conversation with Supervisor Jesse Terrell about her chances for employment.
Moore testified that Terrell told her that department superintendents were being
asked to identify the employees they “didn’t believe” would be rehired. Moore also
testified that she had a conversation with a Department Manager Mike Summerson
about whether department managers were asked to provide a list. Summerson
responded: “What list.”

Neither Hainey nor Terrell were presented to rebut Moore’s testimony about
the alleged list or identification of “trouble makers.” Even crediting Moore’s
unrebutted testimony however, I do not find her testimony sufficient evidence of
animus to support a finding that Southern’s failure to hire Chamlee was unlawfully
motivated.4

In determining whether the General Counsel has met the initial burden of
proving an employer’s protected activity was a motivating factor in an employer’s
decision to take an adverse action against an employee, the Board has held that the
motive may be inferred from the total circumstances proved. Under certain
4 Even if Terrell or Hainey used the term “trouble maker,” neither Moore nor any other witness
alleges that there was any reference to Chamlee or to either union. Additionally, there is no
question that employees with disciplinary warnings during the previous 12 months were
included on a “list” for elimination for consideration for employment. Neither the General
Counsel nor the charging parties allege such criteria to be unlawfully motivated.
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circumstances, the finding of animus may be inferred from the record as a whole,
even in the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB 970 (1991),
enfd. 976 F. 2d 744 (11th Cir. 1992). Counsel for the General Counsel argues that in
light of Southern’s admitted opposition to unionization and Ledbetter’s hostility toward
Chamlee, “it would be naïve to assume that antiunion animus did not bear on
Southern’s decision not to hire Chamlee.” I agree that the total record evidence
supports such a finding of animus.

As discussed above, the timing5 of Meyer’s decision to issue Chamlee a
second warning only days before Southern began the hiring process warrants an
inference of animus. Although there is no evidence that Ledbetter was involved in
developing the hiring criteria for Southern or had any responsibility for determining
who would be offered employment by Southern, he was significantly involved in
Chamlee’s March 17, 2005 discipline and he was one of the principal managers
working with Harlan Bakeries during the period of due diligence and the finalization of
the asset sale. With the transition from Meyer’s to Southern, he ascended to an
elevated management position.

Finding that animus was a contributing factor in Southern’s refusal to hire
Chamlee, Counsel for the General Counsel has established a prima facie case and
the burden shifts to Southern to show that it would not have hired Chamlee even in
the absence of his union and protected activity. Southern maintains that the sole
reason that Chamlee was not hired was his receipt of the written warnings within the
relevant 12-month period. There is therefore, no evidence that Chamlee would not
have been hired by Southern, absent Southern’s reliance on Chamlee’s unlawful
discipline. Inasmuch as the discipline upon which Southern relies was unlawful,
Southern cannot establish that it would have declined to offer Chamlee employment
in the absence of his union and protected activity.

Additionally, as a matter of law, Southern must be held responsible for
remedying Meyer’s unfair labor practices and the basis upon which Chamlee was not
hired. The Board has long held that a bona fide purchaser with knowledge of the
unfair labor practices of the predecessor is responsible for remedying the unfair labor
practices. Perma Vinyl Corporation, 164 NLRB 968 (1967). In Perma Vinyl, one of
the factors that the Board relied upon in finding that the successor purchaser had
notice of the predecessor’s unfair labor practices was the fact that the president of
Perma Vinyl, who had personally participated in Perma Vinyl’s unfair labor practices,
became the manager of the successor’s plastics division, and thus his knowledge
was imputed to the successor. In a later Supreme Court case, the Court held that the
successor who acquires and operates a business in basically unchanged form, under
circumstances that charge him with notice of an outstanding Board order against the
predecessor, can be held responsible for remedying the predecessor’s unlawful
conduct. Golden State Bottling Co., 414 U.S. 168, 94 S. Ct. 414 (1973). In reaching
5 The Board has long held that the timing of adverse employment actions may support
an inference of animus. Masland Industries, Inc. 311 NLRB 184, 197 (1993).
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its decision in Golden State, the Court found that nothing in its earlier decision in
NLRB v. Burns International Security Services, Inc.6 diminished the imposition of
successor liability to remedy a predecessor’s outstanding unfair labor practices.
Since the court’s decision in Golden State, the Board has also found a successor
liable even in circumstances where there was no formal charge pending against the
predecessor. In determining whether a successor had notice of its potential liability,
the Board does not consider whether the successor has seen charges or complaints,
but rather whether the successor was aware of conduct that the Board ultimately
found unlawful. Robert G. Andrew, Inc., 300 NLRB 444 (1990). In Golden State, the
successor’s knowledge of the unfair labor practices was presumed from the fact that
the predecessor’s secretary and manager of the bottling business became the
general manager and president of the successor company. The Court held that it
was permissible to draw the inference that this individual informed his prospective
employer of the litigation of the litigation before completion of the sale. Golden State
at 173-174. It is also well settled that once the General Counsel establishes an
employer’s successorship status, the burden is on the successor to show that it
lacked knowledge of its predecessor’s unfair labor practices. Blu-Fountain Manor,
270 NLRB 199, 210 (1984), enfd. sub nom. NLRB v. Jam Enterprises, 785 F.2d 195
(8th Cir. 1986); Am-Del-Co., Inc., 234 NLRB 1040 (1978). In the instant case,
Southern’s knowledge is clearly established in the fact that Ledbetter not only had
knowledge of Meyer’s unlawful discipline to Chamlee, he additionally participated in
the disciplinary process.

Accordingly, the evidence supports a finding that Southern discriminatorily
denied employment to Chamlee and is also held jointly and severally liable for
Meyer’s unfair labor practices with respect to Chamlee. Southern, therefore, must
offer reinstatement to Chamlee and share joint and several liability for any backpay
owing prior to reinstatement.

H. Continuity of Operation the Unions; Requests to Bargain

There is no dispute that both Meyer’s and Southern have operated a
commercial bakery at the Hope, Arkansas facility. Southern continued the bakery
operation using the same telephone number and most of the equipment and
machinery that was previously used by Meyer’s. Southern has continued to
manufacture the same products as Meyer’s and there was no hiatus between
Meyer’s manufacturing operation and that of Southern. There is no dispute that
Southern hired a majority of Meyer’s employees and that these employees are
performing essentially the same work they performed for Meyer’s.

On March 5, 2005, representatives for Teamsters Local 878 met with Meyer’s
representatives for effects bargaining. During the course of the meeting, Ledbetter
received information that two of the three potential bidders for Meyer’s had dropped
out, leaving only Harlan Bakeries. Ledbetter explained in the meeting that only
6 406 U.S. 272 (1972).
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Harlan wanted to purchase Meyer’s assets and they would not assume the collective
bargaining agreements.

On March 23, 2005, Ledbetter and Plant Manager Nelson met with
representatives of BCTGM Local 111 for effects bargaining. During the meeting,
Ledbetter explained the application process for employees and told the Union that
the new company would begin operating the facility on March 28, 2005. Ledbetter
confirmed that Southern intended to hire a majority of Meyer’s employees. When the
Union inquired about Southern’s terms and conditions of employment, Ledbetter
explained that he did not have all the details because he was still an employee of
Meyer’s.

By letter dated March 31, 2005, BCTGM Local 111 requested that Southern
bargain with the Union concerning terms and conditions of employment. By letter
date April 6, 2005, Teamsters Local 878 requested that Southern bargain with the
Union to negotiate a collective bargaining agreement for the bargaining unit
employees represented by Teamsters Local 878.

Southern began bargaining with the BCTGM Local 111 in the summer of 2005
and on or about October 1, 2005, Southern entered into a collective bargaining
agreement with the BCTGM Local 111. On January 23, 2006, Southern entered into
a collective bargaining agreement with Teamsters Local 878.

I. Southern’s Alleged Refusal to Bargain

Paragraph 20 of the consolidated complaint alleges that during April and May
2005, Southern refused to meet and bargain with BCTGM Local 111 unless BCTGM
Local 111 withdrew an unfair labor practice charge that had been filed with the
Board.

Representatives of Southern and representatives of BCTGM Local 111 met on
April 20, 2005, for an initial negotiating session. Union President Stogner recalled
that the April 20, 2005 meeting lasted for approximately two hours. At the time of the
meeting, the Union had already filed a charge with the Board alleging that Southern
had unlawfully implemented unilateral changes. Stogner confirmed that the Union
wanted Southern to maintain the Meyer’s contract, however the Union had come to
the meeting to lay the groundwork for a new contract. Stogner testified that during
the meeting Ledbetter told the Union that the parties could not move forward with the
negotiations unless the Union dropped the charges or there was a ruling from the
Board. Stogner recalled that when he again spoke with Ledbetter on May 9, 2005,
Ledbetter stated that he didn’t feel that the scheduled May 10, 2005 bargaining
session would be fruitful because there was no ruling from the Board.

Union Steward Louis Page, who attended the same bargaining session,
testified that Ledbetter wanted “them” to “drop the charges before he could move on
with the other business.” In further testimony, Page confirmed that Ledbetter also
referred to the BCTGM Local 111’s desire for Southern to assume Meyer’s collective
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bargaining agreement. Page recalled that Ledbetter suggested that the Union could
either withdraw the charge and negotiate a new collective bargaining agreement or
the Union could let the Board sort out whether Southern is bound by Meyer’s contract
with the Union.

Ledbetter confirmed that he met for bargaining with both the BCTGM Local
111 and Teamsters Local 878 in April 2005. He did not recall that the parties
exchanged any bargaining proposals during the first bargaining session. He recalled
discussing the pending unfair labor practice charges with the BCTGM Local 111. He
mentioned that there was an unfair labor practice charge pending in which the Union
was asserting that Southern had to recognize the collective bargaining agreement
between BCTGM Local 111 and Meyer’s and he suggested that it might be fruitless
for Southern and the Union to negotiate an additional contract. BCTGM International
Representative Dale Nichols testified that as of April 20, 2005, the Union advocated
that Southern was bound by Meyer’s contract with the Union. At the same time, the
Union was also asking Southern to bargain for a new contract with the BCTGM Local
111. Nichols acknowledged that in a later conversation on the same day, Ledbetter
said something to the effect that the parties could spend time negotiating a new
contract and then down the road the Board could rule that Southern is bound by the
Meyer’s contract.

During the April 20, 2005, session a second bargaining session was
scheduled for May 10, 2005. Ledbetter admitted, however, that Southern cancelled
the second meeting because he felt that it was fruitless to spend their time focusing
on a new agreement when they might have to live by the old agreement. He also
admitted that when he gave a sworn affidavit to the Board during the investigation of
the underlying unfair labor practice charges, he stated that the May 10 negotiating
meeting was cancelled because the Union would not drop the charge with the Board.

Representatives of Southern and BCTGM Local 111 later met for negotiations
and reached a collective bargaining agreement on October 1, 2005. While Union
Representative Dale Nichols conceded that there were several bargaining sessions
between May and October, the record is silent with respect to the exact dates of
bargaining. The Union does not dispute that Ledbetter explained his concerns that it
might not be fruitful to bargain for a new contract when the Board might later find that
Southern was bound by Meyer’s contract with the Union. Despite his concerns,
however, the parties proceeded to negotiate a new collective bargaining agreement.
The record therefore reflects that only one bargaining session was cancelled
because of Ledbetter’s expressed concerns. In light of the fact that there is no
evidence of any other dilatory tactics or attempts to delay bargaining, it appears that
Ledbetter’s cancellation of the one bargaining session had a de minimis impact upon
the overall bargaining and did not significantly preclude effective bargaining.
Accordingly, I do not find that Southern refused to meet and bargain with BCTGM
local 111 as alleged in the complaint.

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J. Southern’s Alleged Unilateral Changes

The consolidated complaint alleges that Teamsters Local 878 and BCTGM
Local 111 have been the exclusive collective bargaining representatives for the
production and sanitation employees and shipping, receiving and maintenance
employees, respectively, since March 28, 2005. Counsel for the General Counsel
maintains that in April, May, and June 2005, Southern implemented changes in terms
and conditions of employment without notice to BCTGM Local 111 and Teamsters
878 and without affording the Unions an opportunity to bargain with respect to the
conduct and the effects of the conduct.

An analysis of the prevailing law with respect to successorship begins with the
Supreme Court’s landmark decision in NLRB v. Burns International Security
Services, Inc., 406 U.S. 272 (1972), where the court set out the criteria for
determining whether a new employer is the successor to the prior employing entity.
In Burns, the Court found that where the bargaining unit remained unchanged and a
majority of the employees hired by the new employer was represented by a certified
bargaining agent, the Board correctly required the new employer to bargain with the
union. In finding a “substantial continuity” between the two enterprises, such factors
as: (1) whether the business of both employers is essentially the same; (2) whether
the employees of the new company are doing the same jobs in the same working
conditions under the same supervisors; and (3) whether the new entity has the same
production process, produces the same products, and basically has the same body of
customers. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987). In
the present case, Southern’s operation essentially satisfies all the factors necessary
to establish a Burns successorship. Meyer’s ceased operation on March 27, 2005.
On March 28, 2005, Southern began the identical operation at the same location,
using the same equipment, machinery and telephone. Southern’s workforce was
comprised entirely of a majority of unit employees who had been members of
Meyer’s bargaining units.

The Court in Burns, however, noted that while successor employers may be
bound to recognize and bargain with the incumbent union, they are not bound by the
substantive provisions of a collective bargaining agreement negotiated by their
predecessors, but not agreed to or assumed by them. Id at 284. The Court noted:
“A potential employer may be willing to take over a moribund business only if he can
make changes in corporate structure, composition of the labor force, work location,
task assignment, and the nature of supervision.” The Court reasoned that “saddling
such an employer with the terms and conditions of employment contained in the old
collective-bargaining contract” may make changes impossible and may discourage
and inhibit the transfer of capital. Id. at 288.

While the Supreme Court in Burns provided that ordinarily a successor
employer is free to set its own initial terms and conditions of employment, the Court
also distinguished some exceptions that would restrict the employer from imposing its
own initial terms and conditions of employment. The Court specifically noted:

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In many cases of course, successor employers will find it advantageous
not only to recognize and bargain with the union but also to observe the
pre-existing contract rather than face uncertainty and turmoil. Also, in a
variety of circumstances involving a merger, stock acquisition,
reorganization, or assets purchase , the Board might properly find as a
matter of fact that the successor had assumed the obligations under the
old contract.

In determining whether a successor employer has assumed the obligations of
the prior contract, the Board uses a clear and convincing evidence standard. Cora
Reality Co. LLC, 340 NLRB 366, 369 (2003); Fieldbridge Associations, 306 NLRB
322 (1992), enfd. 982 F.2d 845 (2nd Cir. 1993), cert. denied Local 32B v. NLRB 509
U.S. 904 (1993). In applying this standard, the Board has found an assumption of
the predecessor’s contract when a successor employer has taken such actions such
as paying the contractual pay rate, contributing to the union’s employee trust fund,
following the contractual grievance procedures, or honoring the contractual dues
check-off provision. Brookville Health Care Center, 337 NLRB 1064, 1066 (2002);
Eklund Sweden House Inn, 203 NLRB 413 (1973); Stockton Door Co., 218 NLRB
1053, 1054 (1975). In Eklund Sweden House, Inn, the successor employer
specifically disavowed the predecessor’s collective bargaining agreement in its
contract for sale with the predecessor. Regardless of the disavowal, the Board found
that the successor’s conduct constituted an adoption of the obligations of the
predecessor’ contract.

The facts of this case reflect that the assets purchase agreement specifically
provided for Southern’s purchase of assets without the assumption of liability under
the collective bargaining agreements. When Southern representatives met with
Meyer’s employees, the employees were specifically told that Southern was not
going to assume the obligations of the collective bargaining agreements. There is no
assertion that Southern adopted or assumed any provisions of either the contract
with Teamsters 878 or BCTGM Local 111. Accordingly, there is nothing in
Southern’s conduct to indicate that there was any explicit or tacit acceptance of the
contracts that would limit Southern’s freedom to set its own terms and conditions of
employment as contemplated by the Court’s decision in Burns.

In Burns, the Court also noted that although a successor employer is ordinarily
free to set initial terms on which it will hire the employees of a predecessor, “there will
be instances in which it is perfectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appropriate to have him initially
consult with the employees’ bargaining representative before he fixes terms.” In one
of the Board’s initial cases in interpreting and applying the Burns “perfectly clear”
restriction, the Board conceded that the precise meaning and application of the
Court’s caveat is not easy to discern.7 The Board, however, concluded that the
caveat in Burns should be restricted to circumstances “in which the new employer
7 Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. 529 F.2d 516 (4th Cir. 1975).
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has either actively or, by tacit inference, misled employees into believing they would
all be retained without change in their wages, hours, or conditions of employment” or
at least to circumstances where the new employer has “failed to clearly announce its
intent to establish a new set of conditions prior to inviting former employees to accept
employment.”

Applying the principles to the facts of this case, it is apparent that the “perfectly
clear” caveat is not applicable. There is no dispute that when representatives of
Harlan Bakeries met with employees on March 24, 2005, the employees were given
applications and questionnaires to complete. There is no evidence that any
representative of Meyer’s, Harlan Bakeries, or Southern told employees that
Southern intended to hire all the employees without requiring them to apply and meet
a designated hiring criteria. While Meyer’s or Southern representatives may have
stated that all Meyer’s employees would be given an opportunity to apply for work,
there is no evidence that specific guarantees were made or conveyed to employees.
Additionally, there is no dispute that during the March 24, 2005, meetings with
employees, Southern representatives unequivocally announced that Southern would
not assume the obligations of the existing collective bargaining agreements. At the
same time that employees were given applications, they were also given Southern’s
pay rates and benefits plan. Clearly, employees were given full notice that the
wages, benefits, and terms and conditions that they enjoyed under the collective
bargaining agreements were not offered to them by Southern. It is apparent that
employees were fully aware that their terms and conditions would be different under
Southern. Employee Moore testified that prior to Southern’s taking over the
operation of the facility, employees researched the internet to find out more about
Southern’s benefits and pay rates.

As the Board explained in Spruce Up: “When an employer who has not yet
commenced operations announces new terms prior to or simultaneously with his
invitation to the previous work force to accept employment under those terms, we do
not think it can fairly be said that the new employer ‘plans to retain all of the
employees in the unit’ as that phrase was intended by the Supreme Court.” The
Board noted that the possibility that the old employees may not enter into an
employment relationship with the new employer is a real one. Id at 195. The
evidence does not support a finding that prior to commencement of its new operation,
Southern misled employees into believing that they would all be retained without any
change in their wages, hours, or conditions of employment. Accordingly, Southern
was free to set its own terms and conditions of employment at the time that it
commenced operation in March 2005.

1. The Alleged Unilateral Changes in April 2005

Paragraphs 17 and 18 of the consolidated complaint allege that Southern
implemented eight changes8 on about April 1, 2005, and two additional changes on
Continued
8 In her post-hearing brief, Counsel for the General Counsel references paragraph 18
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_________________________
April 20 without notice to or bargaining with Teamsters Local 878 and BCTGM Local
111. Specifically, Counsel for the General Counsel maintains that about April 1,
2005, Southern (1) removed union bulletin boards; (2) discontinued the practice of
paying premium pay after 8 hours work; (3) discontinued the practice of paying
premium pay for work on Sunday; (4) discontinued the practice of paying double time
for the seventh consecutive day of work; (5) discontinued the practice of assigning
overtime on the basis of seniority; (6) reduced the amount paid for holidays; (7) and
discontinued the job bidding procedures and changed the job selection criteria for
filling vacancies. The consolidated complaint further alleges that on about April 20,
2005, Southern changed the method of scheduling vacations so that vacations longer
than one week could no longer be scheduled and also changed the practice of
allowing employees to receive vacation pay in advance of their vacation days.

BCTGM Local 111 asserts without contradiction that under the provisions of
Meyer’s collective bargaining agreement with the Union, employees were paid $1.50
over regular pay when they worked on Sundays. Employees working the seventh
consecutive day were paid double time and overtime was assigned by seniority.
Employees working over 32 hours during a holiday week or working on the holiday
were paid double time and a half. When there were vacancies to be filled, the job
was posted for three working days and then filled by seniority.

BCTGM Local 111 President Royce Stogner testified that between the time
when he met with Meyer’s representatives on March 23, 2005 and when he met with
Southern representatives on April 20, 2005, to begin bargaining, he met with
bargaining unit employees on March 31, 2005. The employees confirmed that there
had been a “lot of changes” that had taken place. Stogner explained that prior to the
time that the Union began meeting with Southern in the summer of 2005 to negotiate
a contract, the Union and Southern had no discussions concerning terms and
conditions of employment. It was during negotiations in late summer of 2005 that
BCTGM Local 111 asked for a copy of the Employee Handbook that was previously
distributed to employees and it was provided.

a. Alleged Removal of Bulletin Board

(1) Evidence Presented by the Parties

Burke testified that when Southern began operations, there were bulletin
subsection (a)(iii) of the complaint as alleging that Southern eliminated two unpaid personal
days off per year without notifying or bargaining with Teamsters Local 878. Counsel for the
General Counsel submits that inasmuch as there is no evidence that any employee has been
denied the benefit, General Counsel requests the withdrawal of this allegation. I note,
however that complaint paragraph 18 (a)(iii) deals with the alleged unilateral discontinuance
of the practice of paying premium pay for work on Sunday and complaint paragraph 18(a)(viii)
deals with the elimination of two unpaid personal days off per year. Assuming Counsel for the
General Counsel’s request to contain a typographical error, I grant General Counsel’s motion
to withdraw complaint paragraph 18(a)(viii) relating to the elimination of two unpaid personal
days off per year.
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boards throughout the facility that were used for both company and employee
postings. She explained that during the time that Meyer’s operated the facility, there
were also glass-enclosed bulletin boards that were used for government or federally
required postings. Burke maintained that union materials were not posted on these
boards and she denied that union stewards held keys to the glass-enclosed boards.
She asserted that the union materials were posted on the unlocked bulletin boards.
Maintenance Manager Turner testified that there was only a cork bulletin board in the
Maintenance Shop and it remained after Southern began operation of the facility.
Burke explained that since Southern has operated the facility, it has received
requests from the Unions to post information and the information has been posted on
the general bulletin boards. Burke identified a May 5, 2005, e-mail to certain
department heads directing them to post a notice of a Teamsters Local 878 union
meeting in their departments.

BCTGM Local President Stogner testified that under the terms of the
agreement with the Union, Meyer’s provided a glass-enclosed bulletin board for the
Union in the Break Room area. Chamlee also asserted that there was a provision in
the collective bargaining agreement providing for the establishment of the union
bulletin boards, however, he did not identify the provision in the collective bargaining
agreement. Chamlee testified that he set up union bulletin boards in the receiving,
maintenance, and shipping departments shortly after the ratification of the last
Meyer’s collective bargaining agreement. He described the bulletin boards as having
aluminum-framed glass fronts with key locks. Chamlee recalled that he gave keys to
the union stewards in the receiving and shipping departments. While the collective
bargaining agreement between Teamsters Local 878 and Meyer’s covering the
period for June 4, 2004 through June 13, 2008 was submitted into evidence, the
record is silent as to what portion dealt with the establishment of union bulletin
boards.

Tammy Lynn Muldrow worked for Meyer’s for approximately 27 years and for
Southern from March 29, 2005 until January 21, 2006. Muldrow testified that there
were glass-encased union bulletin boards in the Meyer’s facility. She recalled that
the bulletin boards contained notices of union meetings and information as to how to
contact union stewards or business agents. Muldrow testified that on approximately
March 31, 2005, she observed building maintenance employee Leon Gaines
removing the union bulletin boards. When she asked him why he was doing so, he
simply replied that he had been instructed to do so. Gerald McClellan testified that at
the time that Southern assumed operation of the facility, the union bulletin board in
the shipping department was in a locked glass enclosure. Although McClellan was a
steward for Teamsters Local 878, he did not have a key for the board. He estimated
that within a week to two weeks after Southern took over the facility, he observed the
utility crew removing the bulletin board. Union Steward Louis Page recalled that the
bulletin board where he posted union notices was removed not long after Southern
began operations. Sanitation employee Moore recalled that the glass-enclosed
bulletin boards in the break room and shipping department were removed within two
weeks after Southern assumed operation of the facility. She described the boards as
union bulletin boards. Moore admitted, however, that in the affidavit given to the
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Board during the investigation of the alleged unfair labor practices, she stated that
the two union bulletin boards were removed about March 30, 2005. The witnesses
who recalled the removal of the union bulletin boards confirmed that the boards were
replaced with suggestion boxes.

(2) Factual and Legal Conclusions

Southern acknowledges that under Meyer’s operation, Meyer’s provided glass-
encased, lockable bulletin boards for union information. Southern further
acknowledges that the record contains evidence that the boards were required by the
collective bargaining agreements and were in addition to other boards for general
legal information located through the plant. Southern maintains however, that upon
assuming control of the Hope facility on March 28, 2005, it removed all Meyer’s
information from bulletin boards at the various locations of the facility and by March
30, removed the glass-encased boards and replaced them with suggestion boxes.

With respect to union bulletin boards, the law is well-established. The Board
has stated: “In general, there is no statutory right of employees or a union to use an
employer’s bulletin board.” Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d
405 (8th Cir. 1983). Consistent with the above-described right to set its initial terms
and conditions of employment when it hired employees on March 28, 2005, Southern
had the right to change or modify Meyer’s bulletin board policies. Thus, Southern
had no obligation to bargain over the institution or removal of a union bulletin board
any more than other initial terms and conditions of employment. While Counsel for
the General Counsel may assert that Southern’s bargaining obligation with respect to
the bulletin boards attached as of the time that Southern hired a majority of Meyer’s
employees, the removal of Meyer’s bulletin board occurred virtually
contemporaneously with the initiation of Southern’s operation of the plant. There was
no hiatus between the cessation of Meyer’s operation of the facility and Southern’s
assumption of the operation of the facility on March 28, 2005. Thus, it would have
been unrealistic for Southern to remove the bulletin boards any earlier. Accordingly, I
do not find the removal or replacement of the bulletin boards as unilateral changes
occurring after the obligation to bargain and in violation of Section 8(a)(5). I also
note that the agreement reached between Southern and the BCTGM local 111 on
October 1, 2005, and the agreement between Southern and Teamsters Local 878
reached on January 23, 2006 provides for the installation of a Union bulletin boards.

b. Other April 2005 Alleged Unilateral Changes

(1) Evidence Presented by the Parties

Without question, the alleged changes in premium pay, double time pay,
holiday pay, personal days off, overtime assignment, and job bidding dealt with pay
and benefits that had been negotiated with Meyer’s and either incorporated into
Meyer’s collective bargaining agreements with Teamsters Local 878 and BCTGM
Local 111 or were practices arising out of the collective bargaining relationships with
the Unions. Burke testified that under Meyer’s, employees were paid overtime for
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working over 8 hours and were paid premium pay for working on Sundays.
Employees were paid double time for the seventh consecutive work day. Burke also
confirmed that employees received holiday pay and job bidding was based solely on
seniority. Under Meyer’s operation, employees were allowed to take more than one
week of vacation at a time and they were permitted to receive their vacation pay in
advance of the vacation days.

A week before Southern assumed operation of the bakery, Ledbetter and Hal
Harlan directed Payroll Manager Sue Saladin to set up a new payroll and
timekeeping program. The new system that went into effect the first day of
Southern’s operation, eliminated the premium pay and calculated overtime only after
40 hours. Burke testified that from the beginning of its operation of the Hope,
Arkansas facility, Southern has not paid premium pay for Sundays or for employees
who worked seven consecutive days. Southern has not paid employees holiday pay
and Southern has paid overtime based only upon an employee’s working over 40
hours per week. Burke also confirmed that until Southern later reached an
agreement with the BCTGM Local 111 and Teamsters Local 878, employees were
selected for jobs based upon their knowledge and ability to do the job. There was
not a job bidding procedure utilizing seniority.

Maintenance Manager B.J. Turner attended the employee meetings on March
14, 2005 when applications were distributed to the Meyer’s employees. He recalled
that approximately 200 employees attended the first meeting and approximately 130
to 140 employees attended the second meeting. He participated in the meetings by
handing out the applications, as well as the wage rates and employee benefits
information. He recalled that during one of the meetings, employees asked about
whether they would continue to be paid overtime after 8 hours and whether they
would receive premium pay for Sunday. Turner testified that in response to the
questions, Harlan told employees that they would not receive premium pay for
Sundays or overtime for working over 8 hours.9 Turner could not recall the names of
the employees who asked about premium pay and overtime.

Shipping department employee Gerald McClellan did not recall any comments
by Harlan on March 24 about overtime pay, premium pay, double time for working
seven consecutive days, holiday pay, or the job bidding process. He did recall,
however, that immediately after Southern began operations, employees were told
that they were limited to one week of vacation at a time and that they could not
receive vacation pay in advance of their vacation.
9 Counsel for the General Counsel confronted Turner with the absence of any reference to
these specific questions in the affidavit given to the Board during the investigation. Turner
acknowledged that while he had not mentioned the specific questions in his affidavit, the
Board Agent taking the affidavit had not specifically asked about overtime and premium pay.
In response to questions by Southern’s Counsel, Turner confirmed that his affidavit included:
“There were many questions asked at each meeting by the employees.” Turner testified that
the Board Agent taking his affidavit had not asked what questions were posed by the
employees and had only asked if there was discussion about the Union.
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Sanitation employee Moore testified that there were no discussions in the
March 24 or March 28 meetings about overtime pay, premium pay, double-time pay
for the seventh consecutive work day, overtime assignments, job bidding, the
availability of personal days, or the procedure for taking vacation time.

Shipping department employee Carry Harris did not recall any discussions
during meetings on March 24 or March 28 about Southern’s conditions of
employment. He confirmed that while he took a two-week vacation in April 2005, he
did not receive his vacation pay in advance of his vacation. Union Steward Louis
Page testified that when Southern began operations, he was initially told that he
could take his two weeks of vacation in April 2005. He neither identified who told him
that he could take two weeks nor identified the means of communication. He
confirmed, however, that Mike Nelson told him in May that he could only take one
week.

As discussed above, there is no dispute that representatives of Meyer’s and
Southern informed employees and the unions that the assets purchase agreement
did not provide for the assumption of the collective bargaining agreements. Hayden
recalled that during the meetings with employees on March 24, employees asked
questions about holiday and overtime pay. Hayden also recalled that Harlan was
asked about the possibility of changing the work schedule for maintenance
employees. Maintenance Manager Turner recalled that during the two March 24,
2005 meetings that he attended, there were questions about overtime and premium
pay. By contrast, Human Resources Manager Burke as well as employees
McClellan, Moore, and Harris testified that they did not recall any discussions about
any specific terms and conditions of employment. The record, therefore, reflects that
both employees and managers having varying recall as to whether specific terms and
conditions of employment were discussed in the individual meetings they attended
prior to the time that Southern began operating the facility.

(2) Factual and Legal Conclusions

Counsel for the General Counsel asserts that since Southern’s obligation to
bargain attached on March 28, any changes not announced were subject to
bargaining with the employees’ bargaining agents. I am unaware, however, of any
cases where the Board has found that a successor must expressly delineate the
specific terms and conditions of employment that it intends to implement. Based
upon the Board’s directive in Spruce Up Corp., 209 NLRB at 195, it appears that
when a successor clearly announces an intent to change terms and conditions of
employment before employees are hired, there is sufficient notice to employees that
they will not retain their existing terms and conditions of employment under the
predecessor employer.

Accordingly, it is apparent that prior to the time that the employees accepted
employment, Southern did not specifically address premium pay for Sundays or for
work exceeding six consecutive days, overtime pay, assignment of overtime by
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seniority, holiday pay, job bidding procedures, or the procedures for job selection.
Despite the fact that these specific terms and conditions may not have been
specifically addressed, offers of employment were made to employees at the same
time those employees were told that Southern would not assume the obligations of
the collective bargaining agreements and those employees would receive different
wages and benefits than what had been paid by Meyer’s. Under these
circumstances, it is not plausible that employees would have assumed or mistakenly
concluded that their terms and conditions of employment with Meyer’s would
continue with Southern.

Accordingly, I do not find that Southern unlawfully engaged in the following
actions as alleged in complaint paragraphs 17 and 18: (1) discontinuance of paying
overtime premium pay after 8 hours; (2) discontinuance of paying premium pay for
work on Sunday; (3) discontinuance of paying double time for the seventh
consecutive day of work; (4) discontinuance of assigning overtime on the basis of
seniority; (5) reduction in the amount paid for holidays; (6) discontinuance of the job
bidding procedures and change in job selection criteria for filling vacancies and (7)
discontinuance of the practice of allowing employees to receive vacation pay in
advance of their vacations.

Ledbetter testified, however, that when Southern began operations,
employees were allowed to take more than one week of vacation at a time. He
admitted that later in the summer, however, the practice was discontinued without
bargaining with either Union. Accordingly, I find that by discontinuing the practice of
allowing employees to take more than one week of vacation at a time, Southern
violated Section 8(a)(5) of the Act.

2. The alleged May 9 changes in classifications and/or rates of pay

a. Evidence Presented by the Parties

Paragraph 17(c) alleges that on or about May 9, 2005, Southern changed
employee classifications and/or rates of pay for brewmakers, divider operators and
k/divider operators. Southern does not dispute that Hal P. Harlan issued a
memorandum to employees on May 9, 2005, referencing his recent visit to the bakery
and his meeting with employees. Harlan explained in the memorandum that its
purpose was to offer follow-up to employee questions. As a part of his discussion of
various issues and questions, he confirmed that some employees requested that
Southern reevaluate their current classifications to determine whether they were in
the right pay classification. Harlan confirmed that he had spoken with Ledbetter,
Nelson, and Rich Turner and determined that certain positions should have been
classified Level 3 instead of Level 2 when Southern hired those people who worked
in the Brewmaker and Divider and K/divider operator positions. Ledbetter testified
that certain employees received a wage increase as a result of their placement in the
correct classifications. While Southern did not bargain with the Union concerning this
adjustment in classifications, Southern maintains that rather than a change in terms
and conditions of employment, Southern only corrected a misclassification.
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b. Factual and Legal Conclusions

In Banknote Corp. of America, 315 NLRB 1041 (1994), enfd. 84 F.3d 637 (2nd
Cir. 1996), cert. denied 519 U.S. 1109 (1997), the Board found that a successor had
carefully structured its transition to avoid the “perfectly clear” caveat of Burns. The
successor sent notice to the unions representing the predecessor’s bargaining unit
employees, advising that it would not adopt the collective bargaining agreements and
that it would impose new terms and conditions of employment. Four days after hiring
the predecessor’s employees, the successor announced additional unilateral
changes in working conditions. The Board found these additional unilateral changes
violative of Section 8(a)(5) because, a bargaining obligation had already attached
with respect to any subsequent changes. As a Burns successor, Southern was free
to set its initial terms and conditions of employment and prior to its obligation to
bargain with the unions. Southern’s obligation to bargain however, attached at such
time that it hired a majority of Meyer’s employees. Accordingly, the changes in
employee classifications made in May 2005 constitute unilateral changes in violation
of Section 8(a)(5).

3. Alleged Unilateral Changes On or About June 15, 2005

Paragraph 17(d) alleges that on or about June 15, 2005, Southern eliminated
the grievance procedure and imposed harsher discipline for no call/no show
attendance infractions. The consolidated complaint further alleges that these
changes were made without notice or bargaining with BCTGM Local 111.

a. Alleged elimination of grievance procedure

(1) Evidence Presented by the Parties

Meyer’s collective bargaining agreements with Teamsters Local 878 and
BCTGM Local 111 provided for a grievance and arbitration procedure. Because
Southern did not adopt the existing collective bargaining agreements when it
assumed operation on March 28, 2005, there was no continuation of the grievance
process for those employees represented by Teamsters Local 878 or BCTGM Local
111. Southern’s Employee Handbook, distributed to employees in early June, 2005
includes a section identified as Facility Rules and Disciplinary Procedures, The
Handbook also provides that an employee’s employment relationship is such that
employment can be terminated with or without cause, and with or without notice, at
any time, at the option of either the employee or the Company. While I note that the
actual handbook itself was not distributed to employees until approximately June,
2005, there is no evidence that Southern at any time recognized or followed the
grievance procedures contained in Meyer’s collective bargaining agreements with
either Teamsters Local 878 or BCTGM Local 111.

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(2) Factual and Legal Conclusions

Counsel for the General Counsel acknowledges that when Southern hired
employees it made an announcement regarding how disputes would be resolved.
The Complaint Procedure outlines a four-step procedure that ultimately provides for
resolution by one of the owners of Harlan Bakeries. The Complaint Procedure was
also included in the Employee handbook. General Counsel submits that this
procedure does not provide for employee representation as the Union is excluded
from the process. As discussed above, Southern acted within its right to establish its
own terms and conditions of employment when it began its operation of the facility.
Because Southern was not bound by the terms of the collective bargaining
agreements, there was no requirement that it adhere to the grievance process
contained in either collective bargaining agreement. I find that the Complaint
Procedure initially issued to employees and later restated in the Employee Handbook
constitutes an initial term and condition of employment, rather than a unilateral
elimination of the grievance procedure as alleged in paragraphs 17 and 18 of the
complaint.

b. Allegation of Harsher Discipline for Attendance Infractions

(1) Evidence Presented by the Parties

General Counsel relies upon a comparison of Southern’s Facility Rules and
Disciplinary Procedures given to employees on March 28, 2005 and the Employee
Handbook issued in June, 2005 as indicative of Southern’s unilateral imposition of
harsher discipline for no call/no show attendance infractions. The Facility Rules and
Disciplinary Procedures summary organizes the rules into three categories and
designates the kind of discipline that will be imposed for rule violations. Rule Group
“C” provides for progressive discipline for attendance infractions. Rule number 9 in
Group “C” offenses provides:

Any employee who fails to report or call in for two (2) consecutive
scheduled working days will be deemed to have voluntarily quit.

The Employee Handbook also contains Facility Rules and Disciplinary Procedures
and groups the rules into three categories. Group “C” relates to attendance
infractions and provides the following in Rule 9:

Any employee who fails to report or call in on a scheduled working day
will be deemed to have voluntarily quit. (No call/No Show).

Southern asserts, however, that the Handbook does not change the initial
rules with respect to an employee’s job abandonment. Specifically Southern points
to Group “A” offenses in the Facility Rules and Disciplinary Procedures that provide
discipline for conduct that “could interfere with or damage the business or reputation
of the Company, or otherwise violate accepted standards of behavior” and may result
in immediate discharge. Rule 23 in Group “A” is identified as:
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Job abandonment, including failure to timely notify the Company of an
absence – i.e. no call/ no show without an excused reason, leaving an
assigned work area without permission – i.e. walking off the job.

Rule 22 in Section “A” of the Employee Handbook identifies the same offense with
identical wording as is found in the original Facility Rules and Disciplinary
Procedures. After asserting that there is consistency between the two rules on job
abandonment, Linda Burke testified that from Southern’s perspective, Southern’s rule
for no call/no show has always been only one day.

(2) Factual and Legal Conclusion

There is certainly no question that Southern used the same wording in both
documents to address the possibility of immediate discharge for an employee’s job
abandonment. It is equally apparent, however, that the two documents differ with
respect to when an employee will be subject to the progressive discipline system for
failing to report or call in on a scheduled work day. Although Southern makes the
argument that failing to report or call in is the same as job abandonment, it chose to
address these offenses in different sections of both the Rules and the Handbook.
Southern has presented no evidence to show that management ever communicated
this interpretation to employees verbally or in writing. Thus, by the issuance of the
Handbook in June 2005, employees were subject to progressive discipline for failing
to report or call in for work after only one scheduled working day rather than two.
Southern does not dispute that it did not bargain with either Teamsters Local 878 or
BCTGM Local 111 with respect to the rules and policies contained in the Handbook.
Accordingly, I find merit to complaint paragraph 17(d)(ii) and find that on or about
June 15, 2005, Southern unilaterally imposed harsher discipline for no call/no show
attendance infractions.

4. Alleged Unilateral Changes in Wage Rates

a. Evidence Presented by the Parties

Paragraph 19 (d) of the consolidated complaint alleges that on or about
October 2, 2005, Southern increased the rate of pay for certain receiving department
employees. Paragraph 19 (e) of the consolidated complaint alleges that on or about
October 28, 2005, Southern decreased the rate of pay for certain receiving
department employees.

Wendall Cox heads the receiving department and inventory control for
Southern. He worked for Meyer’s for 27 years prior to his employment with Southern.
Each morning receiving department employees meet with Cox to receive information
on their work for the day. During one of morning meetings just prior to October 2,
2005, one of the employees told him that other employees in the same classification
as receiving employees were making more money. Cox told the employees that he
would look into it. When Cox went to Linda Burke’s office, he told her that he was
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checking to determine if his employees were getting top pay for their classification.

Burke recalled Cox’s visit to her office to discuss his employee’s
dissatisfaction with their wages and his desire to give them more pay. During the
time of Cox’s visit to the office, Burke referred to a listing of plant wages that she
found on her desk. The document reflected that it was a listing of plant wages that
had been revised on May 15, 2005. Burke testified that she had not known who had
produced the document, but she assumed that it was the current employee wage
scale. Based upon the document, it appeared that certain of Cox’s receiving
employees were due to an increase in wages. As a result of their discussion, Cox
went to the payroll manager and completed the necessary paperwork for the increase
in wages. Cox acknowledged that prior to initiating the raise for his employees, he
did not speak with Ledbetter or anyone else in management other than Burke.

Burke was not aware that she and Cox had consulted the wrong pay scale
until Ledbetter later came to her and inquired about the basis for the wage increase.
In order to correct the mistake, the employees’ pay scale was corrected and the
employees were given written notification of the mistake. In a letter to the affected
employees, Ledbetter stated:

On October 02, 2005, payroll made an hourly rate change to your pay
increasing your hourly rate fifty cents per hour. This was an
administrative error caused by referencing the wrong pay scale
document. This error has been corrected as of 16 October. The
Company will not require that you repay us for this error.

We apologize for any confusion caused by this administrative error. If
you have questions, please feel free to call me or drop by my office.

Cox testified that when he had initiated the raises for the employees, he had
not known that raises could not be given to employees during contract negotiations.

b. Findings and Conclusions

Having heard the record testimony, I have no doubt that Cox initiated the
raises for his employees without any thought or awareness of an existing bargaining
obligation. His testimony clearly indicates that his intent was to correct a mistake in
pay for his employees; an admirable motivation for any supervisor. His well-meaning
action, however, was further complicated when he and Burke reviewed the incorrect
scale to determine the appropriate wages for his employees. Crediting the testimony
of both Cox and Burke, it is apparent that neither of them were aware that their
actions constituted a unilateral change in pay for certain employees. It is well settled,
however, that wages are a mandatory subject of bargaining. NLRB v. Borg-Warner
Corp., 356 U.S. 342, 348 (1958). Even though the action may have initiated through
a mistake, Southern’s October 2, 2005 increase in the rate of pay for certain
receiving department employees occurred without notice to or bargaining with the
BCTGM Local 111. Such unilateral changes in wages have been found to be
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violative of Section 8(a)(5) of the Act. See Lexus of Concord, Inc., 330 NLRB 1409,
1418 (2000); Clark United Corp., 319 NLRB 328, 329 (1995). Accordingly, I find that
Southern’s increase of wage rates on or about October 2, 2005, violated Section
8(a)(5) of the Act.

General Counsel also alleges that Southern violated Section 8(a)(5) of the Act
when it rescinded the pay rate changes for the receiving department employees on or
about October 28. Southern asserts that the rescission of the increase in wage rates
was simply a correction of its earlier mistake. Southern asserts that even if the pay
increase is determined to be an unfair labor practice, it took immediate and
reasonable steps to repudiate the conduct. Counsel for Southern cites two
administrative law judge decisions in support of its argument that an employer may
avoid liability under the Act by repudiating unlawful conduct. It is well-settled
however, that the bargaining representative should make the final determination as to
whether or not to seek the rescission of unilateral changes which have benefited the
represented employees. Herman Sausage Co., 122 NLRB 168 (1958), enfd. 275
F.2d 229 (5th Cir. 1960). While Southern may have rescinded the pay increase in
order to correct its earlier mistake, it did so without consultation or bargaining with the
Union. Accordingly, Southern’s rescission of the unilateral increase in wage rates for
certain receiving department employees also constitutes a unilateral change in
violation of Section 8(a)(5).

K. The Alleged Direct Dealing with Employees

Paragraph 19 of the Consolidated Complaint alleges that in about mid-May
2005, Southern bypassed Teamsters Local 878 and dealt directly with its employees
in the shipping, receiving and maintenance Unit by soliciting employees’ approval
regarding a schedule change in the maintenance department. In a memorandum to
employees dated May 9, 2005, Hal P. Harlan stated that he had spoken with
maintenance employees and he understood that the majority of employees wanted to
move to a new schedule. Harlan added that he had spoken with the management
team about this change and Southern agreed to change the work schedule effective
as soon as possible.

Ledbetter testified that when Southern assumed operation of the facility, the
maintenance employees worked three shifts. The agreed-upon change referenced in
the May 9, 2005 memorandum provided for the creation of four maintenance crews
that would allow every employee to have a long weekend on alternating weeks.
Ledbetter testified that while the issue of a change in the maintenance schedule was
discussed during Meyer’s negotiations with Teamsters Local 878, the parties never
reached and agreement. Ledbetter asserted that after Southern assumed operation
of the facility, two individuals that he assumed to be employee union representatives
approached Southern with the request to change the work schedules. Ledbetter
identified these individuals as Shayne Carter and Delano Hackler. He explained that
these two individuals were not only on the bargaining committee for the Union when
Teamsters Local 878 previously bargained with Meyer’s, but they were also union
stewards for Teamsters Local 878. Ledbetter testified that Southern considered that
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Hackler and Carter were still stewards. Burke identified a May 5, 2005 letter to her
from Carlton Collins, Assistant Business Agent for Teamsters Local 878. In the letter,
Collins identifies Shayne Carter and Delano Hackler as two of the five Union
committee members who would participate in the contract negotiations that were
scheduled to begin on May 12, 2005.10 Collins, however, testified that he never told
management officials for either Meyer’s or Southern that stewards had authority to
negotiate on behalf of the Union with respect to conditions of employment.

Turner testified that Carter and Hackler presented him with the proposed
schedule to allow maintenance employees to have every other weekend off. Turner
took the schedule and modified it to provide for the four shifts. He posted the
modified schedule on the bulletin board for employees to review. After giving
employees an opportunity to review the proposed schedule for three weeks to a
month, he polled the employees to determine if they wanted to try the schedule. All
of the employees confirmed to him that they wanted the changed schedule. He
recalled that the new schedule began sometime in the middle of May, 2005.

Vice-President Collins recalled that prior to the April 21, 2005 bargaining
session; he had heard that maintenance employees had been given a different
schedule. Ledbetter confirmed during the meeting that a couple of maintenance
employees had approached Southern about a change in schedule and the
employees had voted for the change. Ledbetter acknowledged to Collins that the
change was made without notifying the Union.

Admittedly, the change in the schedule for the maintenance employees was
initiated without notice to or bargaining with the Teamsters Local 878. Additionally,
there is no dispute that the change was made after Southern’s bargaining obligation
attached. While Southern excuses such action by asserting that the request for the
change was made by two union stewards, there is no evidence that these individuals
were authorized to bargain on behalf of all employees in the bargaining unit.
Accordingly, I find that Southern by-passed Teamsters Local 878 and dealt directly
with its employees in the shipping, receiving, and maintenance unit by soliciting
approval regarding a schedule change and in violation of Section 8(a)(5) of the Act.11

L. Norman D. Wilson’s May 13, 2005 Discharge

1. Evidence Presented by the Parties

Paragraph 16 of the consolidated complaint alleges that Southern terminated
Wilson because he assisted a union and engaged in concerted activities. The
10 Union Vice President Collins testified that toward the end of May, 2005, the Union informed
Southern that Carter and Hackler were being replaced on the negotiating committee.
11 The Board has found that when an employer bypasses its employees’ exclusive collective
bargaining representative and deals directly with its employees concerning wages, hours, and
conditions of employment, it violates Section 8(a)(5) of the Act. See JPH Management Inc.,
331 NLRB 1032, 1033 (2000).
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consolidated complaint also alleges that Southern terminated Wilson because
Chamlee and the BCTGM Local 111 filed charges with the Board and because
employees gave testimony to the Board in the form of affidavits.

Wilson worked for Meyer’s for over 8 years. He worked on third shift as a
boxer in production at the time that Southern acquired Meyer’s assets in March 2005.
In January 2005, Meyer’s Human Resources Department was informed that Wilson
and an employee in the packing department had engaged in inappropriate physical
contact in the production area. Upon learning of the alleged incident, Production
Manager Brian Weems suspended Wilson pending Burke’s investigation of the
matter. Approximately a week and a half later, Weems conducted a meeting with
Wilson concerning the incident. Wilson does not dispute that he signed a document
dated February 2, 2005, referenced as “Disciplinary Action for Improper Conduct on
01/20/05.” The document was also signed by Union Steward Tony Austin, Weems,
and Burke. The fourth paragraph of the document includes the following:

Norman was suspended on 01/21/05 pending investigation of the
incident. In accordance with the rules Norman should be terminated
effective to the date of the incident; however, Management has agreed,
considering Norman’s past record and his long-term employment with
the Company, to allow his employment to be reinstated as a one-time
“last chance” disciplinary warning without back pay.

The form additionally contained wording to evidence that Wilson understood the
terms and conditions of his reinstatement of employment as outlined in the form.
Weems testified that during the meeting, he and Burke explained to Wilson that he
was reinstated to his job as a one-time last-chance disciplinary warning. Weems
recalled that a few days after the meeting, Wilson approached him about the
disciplinary letter in his personnel file. Weems told him that as long as he didn’t
violate the rules again, it would not be a problem. Weems denied, however, that he
ever said anything to Wilson to indicate that the February 2, 2005, document meant
anything other than what was contained in the document.

Wilson admitted that he was suspended because of the January 2005
incident. He described the other employee who was involved in the incident as “very
playful.” He also admitted that he participated in an investigatory meeting concerning
the incident. While he denied that he had touched the other employee
inappropriately, he contended that his touching her “was always in a playful way, no
more than she played with the other guys.” Wilson testified that during the February
2 meeting with Weems and Burke, he was told that he could return to work without
backpay for the period of the suspension.

Wilson signed his application for employment with Southern on March 24,
2005. Included on the page with his signature is the wording: “It is understood and
agreed upon that any misrepresentation by me will be sufficient cause for
cancellation of this application and/pr separation from the Employer’s service if I have
been employed. Wilson completed the applicant questionnaire on March 25, 2005.
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In response to the question as to whether he had a written warning, or layoff
disciplinary action in the past twelve (12) months, Wilson marked “no.” On March 28,
2005, Wilson was hired by Southern to work in the same job that he had performed at
Meyer’s.

Weems recalled that in early May, Plant Manager Mike Nelson came to his
office and that told him that Wilson’s prior discipline had been overlooked during the
hiring process and Wilson had denied any prior discipline in his application for
employment with Southern. Burke testified that while she is the person who normally
inputs discipline records into the computer, she did not know why she had failed to
input Wilson’s February 2, 2005 discipline. She recalled that the discipline occurred
just prior to Meyer’s bankruptcy it was an oversight in failing to do so.

Ledbetter testified that during the course of the Board’s investigation of
Southern’s alleged unfair labor practices in May 2005, the Union alleged12 that ten
individuals with disciplinary actions had been hired. In response to the Union’s
allegations, Southern conducted a review of the personnel files for the named
employees. Southern found an explanation for hiring all of the individuals except for
Wilson. In reviewing Wilson’s personnel file, Southern discovered his February 2,
2005 disciplinary warning. When Southern reviewed Wilson’s application
questionnaire, it determined that Wilson falsified his application by denying that he
had received any discipline during the previous 12-month period.

Weems testified that Wilson was terminated because he falsified his
employment application. Weems further testified that while he had known about
Wilson’s prior discipline, no one with Southern asked him opinion as to whether any
employees should be hired or not hired. Ledbetter also confirmed that during the
hiring process, Human Resources personnel did not speak with individual
supervisors to determine if employees had received written warnings during the
previous 12 months. Ledbetter acknowledged that had it not been for the inquiry
from the Board, Wilson would not have been terminated. He explained that Southern
would not have taken any action until the discovery of a problem.

In defense of why he excluded his discipline from his application
questionnaire, Wilson asserted that he didn’t think that he had received a written
warning for the incident. On direct examination, Wilson was asked if there was
anything said during this meeting about his receiving a written warning. Wilson
contended that there was not and then he added that Weems told him “This is not a
write-up. This is just to show that we talked about this incident.” Wilson admitted,
however, that prior to signing the February 2, 2005 Disciplinary Action letter, he read
it and looked over it. He also admitted that the union steward had also read the letter
before signing the document. Wilson acknowledged that he did not ask for any
12 While the record does not specifically reflect the alleged unfair labor practice being
investigated, I note that on April 4, 2005, Chamlee filed a charge alleging that Southern had
unlawfully failed to hire him and four other individuals in March 2005.
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wording change in the document prior to signing it.

2. Factual and Legal Conclusions

Section 8(a)(4) of the Act provides that an employer commits an unfair labor
practice when it discharges or otherwise discriminates against an employee because
he has filed charges or given testimony under the Act. This case includes no
evidence that Wilson filed charges with the Board or even spoke with a
representative of the Board prior to his discharge. General Counsel maintains,
however, that Southern terminated Wilson because Chamlee and the BCTGM Local
111 filed charges with the Board and employees gave testimony to the Board in the
form of affidavits.

In an early decision, the Supreme Court noted that while the language of
Section 8(a)(4) could be read strictly to apply only to formal charges and formal
testimony, the language can also be read more broadly. NLRB v. Schrivener, 405
U.S. 117, 122 (1972). The Schrivener rationale has led to the interpretation of
Section 8(a)(4) as a protection of employees who merely threaten to file charges with
the Board, Grand Rapids Die Casting Corp. v. NLRB, 831 F.2d 112 (6th Cir. 1987) or
to employees who provide information to the Board that assists another employee,
National Surface Cleaning, Inc. v. NLRB, 54 F.3d 35 (1st Cir. 1995). Thus, while
Wilson may not have personally initiated the charges or provided testimony to the
Board in support of the charges, his discharge would be violative if Southern
discharged him because of the charges filed by Chamlee and the BCTGM Local 111.
I do not, however, find sufficient evidence of such retaliation.

The Board has held that a Wright Line analysis also applies to Section 8(a)(4)
claims. McKesson Drug Co., 337 NLRB 935 (2002); Freightway Corp., 299 NLRB
531, 532 (1990); Taylor & Gaskin, 277 NLRB 563, fn. 2 (1985). Using the analysis
set forth in Wright Line, 251 NLRB 1093 (1980), General Counsel must make out a
prima facie showing sufficient to support the inference that the filing of the charges by
BCTGM Local 111 and Chamlee was a “motivating factor” in Southern’s decision to
terminate Wilson. A prima facie case is made out when General Counsel establishes
protected activity, employer knowledge, adverse action taken against those involved
or suspected of involvement, which has the effect of encouraging or discouraging
protected activity, and animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). The
Board has also described this fourth factor as a motivational link, or nexus, between
the employee’s protected activity and the adverse employment action. American
Gardens Management Co., 338 NLRB 644, 645 ( 2002). If the General Counsel can
establish all four elements, a presumption is created that the adverse action violated
the Act. To rebut that presumption, a respondent must show that the same action
would have taken place even in the absence of the protected activity. Manno
Electric, Inc., 321 NLRB 278, 280 at fn. 12 (1996).

The undisputed facts in this case demonstrate that General Counsel has met
its initial burden under the Wright Line analysis. While Wilson engaged in no
apparent protected activity, the charges filed by Chamlee and BCTGM Local 111 are
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clearly within the framework of 8(a)(4) protected activity. While Southern did not
emphasize the timing, there is no question that it was the charges and the
subsequent Board investigation that alerted Southern to review Wilson’s prior
disciplinary record in May 2005. Finding that Wilson had the requisite disciplinary
action in his file, Southern terminated him in accordance with the March 2005 hiring
criteria. Accordingly, were it not for the charges and Board’s investigation, Wilson’s
erroneous hiring may never have been discovered.

Counsel for the General Counsel argues that Wilson was terminated to
conceal Southern’s unlawful motivation for not hiring Chamlee. I find no record
evidence, however, that would support this conclusion. Southern argues that if
Wilson’s testimony is taken at face-value and Meyer’s did not intend Wilson’s written
last-chance notice to serve as a written warning, Wilson is entirely irrelevant to
Chamlee’s non-hire. Southern argues that inasmuch as Wilson argues that the write-
up was not disciplinary in nature and was not a basis to exclude him from hire by
Southern, there was no need for Southern to use Wilson’s discharge to sanitize its
hiring practices relative to Chamlee. While Wilson’s credibility is not pivotal in
determining the merits of this allegation, I do not find Wilson to be a credible witness.
His explanation that he did not consider himself to have received discipline despite
his suspension and “last chance” reinstatement has no credible basis.

Despite the fact that Wilson was terminated after the error was discovered, I
do not find sufficient evidence of a discriminatory discharge. Without question, a
determination of whether an employee has been unlawfully discharged is based upon
demonstrable record evidence rather than equitable considerations. There have
been limited occasions, however, where the Board has considered equity as a factor
in fashioning an appropriate remedy. In a 1966 decision13 involving an issue of
whether backpay is tolled during the period between the administrative law judge’s
decision and the Board’s decision, the Board noted that in virtually all cases, an
employer has no equitable standing to claim credit for the periods of time in which an
intermediate reviewer erroneously thought the employer’s conduct to be lawful. The
Board noted:

However, in the infrequent cases in which an employee is terminated as
a result of employer conduct which, while an unfair labor practice, does
not bespeak such a clear intent, the Board will be more receptive to
such employer contentions as, for example that it was justifiably reliant
on a decisional error or on an expectation that the Board would adhere
to a particular view of the law. When the respondent is not an ill-
intentioned offender, as he is in an 8(a)(3) case which turns on motive,
the balance of equities between the respondent and the employee
draws closer to equilibrium, and the Board will consider more
sympathetically any substantial defenses the respondent may proffer
against a full backpay remedy.
13 Ferrell-Hicks Chevrolet, Inc., 160 NLRB 1692, 1697-1698 (1966).
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While the Board discussed such equitable considerations in relation to
fashioning an appropriate remedy, these principles may also lend guidance in
viewing the circumstances of this case. As discussed in an earlier portion of this
decision, I find that Southern is jointly and severally liable for Chamlee’s unlawful
discipline by Meyer’s. While Southern did not exist at the time of Meyer’s unlawful
conduct, Southern now bears the responsibility for correcting the wrongdoing by
virtue of its successorship. During the investigation of the underlying charges, the
Board discovered evidence that Southern offered employment to Wilson; an
employee who had received discipline within the requisite twelve-month period. In
response, Southern conducted an investigation of the alleged disparity and
attempted to correct the error by terminating Wilson. There is no evidence that
Southern was motivated by any other factor other than to correct an error in its hiring
procedure. There is no evidence that Southern hired Wilson with knowledge of his
prior discipline. While it is undisputed that Ledbetter, Weems, and Burke had been
involved in issuing the discipline to Wilson, there is no evidence that any of these
individuals were cognizant that Wilson’s discipline was erroneously omitted from the
information provided to Hayden during the application process. As discussed above,
I have found that Southern is required to reinstate Chamlee and to restore him to his
previous employment status. To require the reinstatement of Chamlee and to also
penalize Southern for its attempt to correct a disparity in hiring caused by Meyer’s
documentation error is a dichotomy that frustrates public policy and equitable
considerations. Moreover, while Wilson may have been terminated as a result of the
underlying unfair labor practice charges, there is no evidence of an unlawful motive.
The record evidence reflects that Wilson’s conduct and the ensuing disciplinary
action clearly removed him from the objective hiring criteria. The overall evidence
supports a finding that Southern would not have employed Wilson, but for an
apparent error in Meyer’s documentation. Thus, Southern has met its burden of
demonstrating that Wilson would not have been hired despite any Union or protected
activity by other employees. Accordingly, I do not find Wilson’s termination in
violation of the Act.

Conclusions of Law

1. Since March 28, 2005 Respondent Southern Bakeries, LLC has been
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

2. Prior to March 28, 2005, Meyer’s Bakeries, Inc. was an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

3. Respondent Southern Bakeries, LLC is a successor to Meyer’s
Bakeries, Inc. as defined in Burns14 and Golden State.15
14 NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972).
15 Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973).
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4. Chauffeurs, Teamsters and Helpers Local Union, No. 878, affiliated with
International Brotherhood of Teamsters, herein Teamsters Local 878, is a labor
organization within the meaning of Section 2(5) of the Act.

5. Bakery, Confectionary, Tobacco Workers and Grain Millers
International Union, AFL-CIO, CLC Local 111, herein BCTGM Local 111, is a labor
organization within the meaning of Section 2(5) of the Act.

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

All maintenance employees, all shipping department clerks, lead
persons, loaders/pullers, stackers, and all receiving department
employees employed at the Hope, Arkansas facility; excluding all office
clerical employees, all other hourly employees, professional employees,
technical employees, guards and supervisors as defined in the Act.

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

All employees within the production and sanitation departments
employed at the Hope, Arkansas facility; excluding all transportation
drivers, garage attendants, engineers, dispatchers, technical
employees, office clerical employees, watchmen, guards and
supervisors as defined in the Act.

8. By threatening an employee with discipline, discharge, or unspecified
reprisals because he engaged in union and other protected activities, Respondent
Meyer’s violated Section 8(a)(1) of the Act.

9. By issuing written warnings to Michael Chamlee on or about August
20, 2004 and March 17, 2005, Respondent Meyer’s violated Section 8(a)(3) and (1)
of the Act.

10. By failing to hire Michael Chamlee on March 28, 2005, Respondent
Southern violated Section 8(a)(3) and (1) of the Act and as a successor to
Respondent Meyer’s, Respondent Southern is fully responsible for offering
employment to Michael Chamlee and to make him whole for any losses resulting
from Respondent Meyer’s unlawful discipline to him on August 20, 2004 and March
17, 2005 and for Respondent Southern’s failure to hire Chamlee on March 28, 2005.

11. By unilaterally changing certain employee classifications on or about
May 9, 2005, Respondent Southern violated Section 8(a)(5) of the Act.

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12. By unilaterally imposing harsher discipline for no call/no show
attendance infractions on or about June 15, 2005, Respondent Southern violated
Section 8(a)(5).

13. By unilaterally increasing the rate of pay for certain receiving
employees on or about October 2, 2005, Respondent Southern violated Section
8(a)(5) of the Act.

14. By unilaterally decreasing the rate of pay for certain receiving
department employees on or about October 28, 2005, Respondent Southern
violated Section 8(a)(5) of the Act.

15. By bypassing Teamsters Local 878 and dealing directly with its
employees in the shipping, receiving and maintenance Unit by soliciting employees’
approval regarding a schedule change in the maintenance department, Respondent
Southern violated Section 8(a)(5) of the Act.

16. By changing the method of scheduling vacations so that vacations
longer than one week could no longer be scheduled, Respondent Southern violated
Section 8(a)(5) of the Act.

17. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.

18. Neither Respondent Meyer’s nor Respondent Southern violated the Act
in any other manner as alleged in the consolidated complaint.

Remedy

Under the Supreme Court’s Golden State decision, a successor, aware of the
unfair labor practices committed by its predecessor, has joint and several liability with
the predecessor to remedy those violations.

For the reasons that I have discussed above, I have found that Respondent
Southern, had reason to be aware of the unfair labor practices committed by
Respondent Meyer’s and was a Golden State successor to Respondent Meyer’s. I
have also found Southern’s failure to hire Chamlee as violative of Section 8(a)(3) and
(1) of the Act. Accordingly, Respondent Southern must offer employment to Michael
Chamlee and to make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of Respondent Southern’s failure to hire him
to the date he is offered employment, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest, as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).

Respondent Southern having unilaterally imposed a harsher discipline for no
call/no show attendance infractions, must rescind this unilateral change and rescind
any discipline issued to employees as a result of this unilaterally implemented
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change. Further, inasmuch as Southern has negotiated a collective bargaining
agreement with both the BCTGM Local 111 and Teamsters Local 878, I recommend
that Southern make whole those employees who have been affected by the unlawful
unilateral changes from the date of the unlawful change to the date of the agreement
that would cover the affected employees.

Respondent Southern having unilaterally changed the method of scheduling
vacations so as to preclude the taking of vacations for longer than one week must
rescind this unilateral change and bargain with the Unions concerning this matter, if it
has not already done so.

I have also found that Respondent Southern unilaterally reclassified
employees on or about May 9, 2005, dealt directly with employees concerning a
change in the schedule for maintenance employees, and unilaterally decreased the
rate of pay for certain receiving department employees on or about October 28, 2005.
While I would normally recommend the rescission of all unilateral changes, nothing in
this order should be construed as requiring rescission of benefits granted to unit
employees as a part of any unilateral changes.

Having found that Respondent Southern has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.

On these findings of fact and conclusions of law and on the entire record, I
issue the following recommended:16

ORDER

Respondent Meyer’s, Hope, Arkansas, its officers, agents, successors, and
assigns, shall take the following affirmative action necessary to effectuate the policies
of the Act:

1. Within 14 days from the date of this Order, duplicate and mail, at its
own expense, a copy of the attached notice marked as “Appendix A”17 to all
employees who were employed at the Hope, Arkansas facility during the time period
between August 20, 2004 and the cessation of Meyer’s operations on or about March
27, 2008.

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
17 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.”
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2. Within 14 days from the date of this Order, expunge from its files any
reference to the written discipline issued to Michael W. Chamlee on August 20, 2004
and March 17, 2005, and notify Chamlee in writing that this has been done.

3. Within 14 days from the date of this Order, request that Southern
Bakeries, LLC expunge from Meyer’s records and files in Southern’s possession, all
records referencing or relating to the discipline issued to Michael W. Chamlee on
August 20, 2004 and March 17, 2005, and notify Chamlee in writing when this
request to Southern Bakeries LLC, has been made.

Respondent Southern, Hope, Arkansas, its officers, agents, successors, and
assigns, shall:

1. Cease and desist from:

(a) Unilaterally changing employee classifications and pay rates
without bargaining with its employees’ collective bargaining representative.

(b) Unilaterally imposing harsher discipline for no call/no show
attendance infractions without bargaining with its employees’ collective bargaining
representative.

(c) Unilaterally increasing the rate of pay for employees without
bargaining with its employees’ collective bargaining representative.

(d) Unilaterally decreasing the rate of pay for employees without
bargaining with its employees’ collective bargaining representative.

(e) Bypassing its employees’ collective bargaining representative
and dealing directly with employees concerning changes in employees’ schedules.

(f) Unilaterally changing the method of scheduling vacations without
bargaining with its employees’ collective bargaining representative.

(g) Discriminating against applicants because of their union and
protected activity.

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

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

(a) Rescind the unilateral change in discipline for no call/no show
attendance infractions, if it has not already done so in subsequent bargaining with the
BCTGM Local 111 and Teamsters Local 878.
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(b) Rescind the unilateral change in scheduling vacations, if it has
not already done so in bargaining with the BCTGM Local 111 and Teamsters Local
878.

(c) Upon request, bargain collectively with the BCTGM Local 111 as
the exclusive collective bargaining representative of the employees in the Production
and Sanitation Unit specified above, and if requested by the Union, rescind the
unilateral changes in classifications and/or rates of pay.

(d) Upon request, bargain collectively with the Teamsters Local 878
as the exclusive collective bargaining representative of the employees in the
Shipping, Receiving and Maintenance Unit specified above, and if requested by the
Union, rescind the unilateral changes in the schedule for maintenance employees.

(e) Within 14 days from the date of this Order, make whole any
employees for any loss of pay or other benefits, including interest, that they may have
suffered as a result of the unlawful unilateral changes found above and prior to such
time that Southern reached an agreement with their collective bargaining
representative.

(f) Within 14 days from the date of this Order, offer employment to
Michael W. Chamlee in his former job or a substantially equivalent position, without
prejudice to his seniority or any other right or privilege that he would have accrued
had he been offered employment on March 28, 2005. Additionally, make whole
Michael W. Chamlee for any loss of earnings suffered as a result of its failure to hire
him on March 28, 2005.

(g) Within 14 days from the date of this Order, remove from its files
any reference to the failure to hire Michael W. Chamlee or to the disciplinary
warnings issued to him by Meyer’s in August 2004 and March 2005, and within three
days thereafter notify him in writing that it has done so and that the personnel action
will not be used against him in any way.

(h) Preserve and, within 14 days of a request, or such additional
time as the Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll records, social
security payment records, timecards, 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.

(i) Within 14 days after service by the Region, post at its Hope,
Arkansas facility, copies of the attached notice marked “Appendix B.”18 Copies of
Continued
18 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”
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the notice, on forms provided by the Regional Director for Region 26, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since August 18, 2004.

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

Dated, Washington, D.C., May 12, 2006.

Margaret G. Brakebusch
Administrative Law Judge

_________________________
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX A
NOTICE TO EMPLOYEES

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

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT threaten our employees with discipline, discharge, or unspecified
reprisals if they engage in union or other protected concerted activity.

WE WILL NOT discriminate against employees by issuing disciplinary warnings to
them because they engage in union or other protected concerted activity.

WE WILL NOT in any like or related manner interfere with your rights under Section
7 of the Act.

WE WILL expunge from our records and files any reference to the written discipline
issued to Michael W. Chamlee on August 20, 2004 and March 17, 2005, and notify
him in writing that this has been done.

WE WILL request that Southern Bakeries, LLC expunge from our records and files
that are in its possession, all records referencing or relating to the discipline issued to
Michael W. Chamlee on August 20, 2004 and March 17, 2005. WE WILL notify
Michael W. Chamlee in writing when we have made this request to Southern
Bakeries, LLC.

MEYER’S BAKERIES, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in
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1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections
to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about
your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov

The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544-0018, Hours: 8:00 a.m. to 4:30 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (901) 544-0011.

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APPENDIX B
NOTICE TO EMPLOYEES

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

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT fail or refuse to bargain with the collective bargaining representative
of our employees by making unilaterally changes in discipline for attendance
infractions, the method of scheduling vacations, classifications, pay rates, or
schedules for our employees.

WE WILL NOT bypass our employees’ collective bargaining representatives and deal
directly with employees concerning wages, hours, or conditions of employment.

WE WILL NOT fail or refuse to hire individuals because they engage in union or
other protected concerted activity.

WE WILL NOT in any like or related manner interfere with your rights under Section
7 of the Act.

WE WILL, at the request of Teamsters Local 878, rescind the method of scheduling
employee vacations and the change in imposing harsher discipline for no call/no
show attendance fractions.

WE WILL, at the request of Teamsters Local 878, rescind the changes in employees’
schedules, classifications or pay rates, and the revocation of wage increases.

WE WILL, at the request of BCTGM Local 111 rescind the unilateral change in the
method of scheduling vacations and the change in imposing harsher discipline for no
call/no show attendance infractions.

WE WILL, at the request of BCTGM Local 111, rescind the changes in employee
classifications or pay rates.

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WE WILL, within 14 days from the date of the Board’s Order, offer employment to
Michael Chamlee to the job he previously performed for Meyer’s or if that position no
longer exists, to a substantially equivalent position, without prejudice to seniority or
any other right or privilege that he would have enjoyed had he been offered
employment on March 28, 2005.

WE WILL, within 14 days from the date of the Board’s Order, make Michael Chamlee
whole for any loss of earnings and other benefits plus interest resulting from our
failure to hire him on March 28, 2005.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files
any reference to the failure to hire Michael Chamlee on March 28, 2005 and any
reference to the disciplinary warnings issued to him by Meyer’s in August 2004 and
March 2005, and WE WILL, within 3 days thereafter, notify him in writing that this has
been done and that our failure to hire him and the disciplinary warnings will not be
used against him in any way.

Southern Bakeries, LLC
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in
1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections
to determine whether employees want union representative and it investigates and
remedies unfair labor practices by employers and unions. To find out more about
your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov

The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544-0018, Hours: 9:00 a.m. to 5:30 p.m.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICE, (901) 544-0011.