Noah's Bay Area Bagels, Inc.

National Labor Relations Board - Board Decisions

May 22, 2000

331 N.L.R.B. 188 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
Noah’s Bay Area Bagels, LLC and United Food and
Commercial Workers Union, Local 870, AFL–
CIO. Cases 32–CA–16086 and 32–CA–16244
May 22, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On January 22, 1998, Administrative Law Judge Joan
Wieder issued the attached decision. The Respondent,
the Charging Party, and the Acting General Counsel filed
exceptions, supporting briefs, and answering briefs, and
the Respondent and Charging Party filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions as modified
below and to adopt the recommended Order as modified.2
1. We adopt the judge’s recommendation to dismiss
the allegation that Store Manager Love unlawfully
warned employee Smith about Smith’s distribution of
union literature at the conclusion of the Respondent’s
meeting with employees on April 15, 1997.3 We find, in
agreement with the judge, that Smith was distributing the
literature in a work area, inside the store, and thus, in an
area in which the Respondent could properly prohibit
such conduct on a nondiscriminatory basis. See, e.g.,
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). There
is no evidence that Love’s warning to Smith was dis-
criminatory. In light of the above, we find it unnecessary
to pass on whether Smith’s distribution was also con-
ducted during working time.
We disavow the judge’s statement, in the penultimate
paragraph of section II,B of her decision, that “[i]t is un-
disputed [that the] Respondent has a valid no-solicitation
rule in its employee handbook.” The General Counsel
has not alleged, and indeed has expressly declined on the
record to litigate in this proceeding, whether Respon-
dent’s no-solicitation/no-distribution rules, as published
in the Respondent’s employee handbook, are facially
valid or invalid.
2. For the reasons fully set forth in sections II,C and
III,B,1 of the judge’s decision, we affirm her finding and
conclusion that Respondent’s Chief Executive Officer
Mizes’ comments to employees during a captive audi-
ence speech on April 15 constituted an unlawful threat
that the employees would be deprived of existing bene-
fits if they selected the Union to represent them. The
credited testimony is that Mizes told the assembled em-
ployees, while motioning toward the floor with his arm
and touching it with his hand, that:

1 No exceptions were filed concerning the judge’s findings that the
Respondent violated Sec. 8(a)(1) by questioning the shift leaders about
their union activities and those of other employees and by instructing
the shift leaders to stop the union activities of other employees. In
addition, no exceptions were filed regarding the judge’s finding that the
record did not establish unlawful interrogation by Store Manager Love
on April 15, 1997.
2 We modify the judge’s conclusions of law, recommended Order,
and notice to more closely reflect the violations found.
3 All dates are 1997 unless otherwise stated.

[I]f we go through the whole union process, when
it [comes] down to negotiations, we [are] going to start
from zero. . . . [Y]ou can get the same, better, or
worse. But . . . we’re going to start from zero.
. . . .
[T]he union had no place in Noah’s . . . it would
ruin the relationship between the employees and the
management if the union would come in. . . . [W]e
would have to start from the ground up. Everything
would have to be negotiated, from pay to policies.
He tapped the ground with his hand. He said from
the ground up.
. . . .
[W]e would start from zero and he touched the
floor with his hand. He was in a sitting position and
he indicated we would start from scratch or ground
zero in our negotiations.

Our dissenting colleague relies at least in part on the
undisputed fact that Mizes did not actually tell anyone
that the Respondent was going to reduce their wages and
benefits. But our disagreement with our colleague is
over the reasonable implications of what Mizes did tell
the employees. We find, in agreement with the judge,
that the attendees at the April 15 meeting could reasona-
bly believe from Mizes’ remarks and gestures that they
would suffer a loss in wages and other benefits as a di-
rect result of selecting the Union, rather than as a possi-
ble outcome of good-faith bargaining between the Re-
spondent and the Union.
In his dissent, our colleague relies on Exxon Research
& Engineering Co. v. NLRB, 89 F.3d 228 (5th Cir. 1996),
denying enf. 317 NLRB 675 (1995); and Shaw’s Super-
markets, Inc. v. NLRB, 884 F.2d 34 (1st Cir. 1989), deny-
ing enf. 289 NLRB 844 (1988), on remand 303 NLRB
382 (1991). Even if we were to accept the reasoning of
those circuit court decisions, both of which reversed the-
Board’s unfair labor practice findings, they are neverthe-
less distinguishable from the instant case. In Exxon, the
Board found that the employer violated the Act by refus-
ing to bargain with the union about intended changes to
the employees’ savings, investment, and loan plan (the
plan); by thereafter unilaterally implementing the
changes to the plan; and by threatening employees that
the union’s bargaining relationship with the employer
would be damaged and that the employees would lose
current benefits if the union continued to try to get the
employer to bargain about the changes to the plan. Spe-
cifically, the employer told the employees that if the un-
ion persisted in trying to get the employer to bargain
about the changes to the plan, the employer would insist
that any such bargaining “begin with a blank sheet of
331 NLRB No. 17
NOAH’S BAY AREA BAGELS, LLC 189
paper.” 317 NLRB at 679–680; 687–688. The court re-
versed all of the Board’s unfair labor practice findings.
The court then found that the “begin with a blank sheet
of paper” remark was not unlawful, because it was
“made in circumstances free from other unfair labor
practices.” Nor was it “coupled with other statements or
company conduct that would suggest to a reasonable
audience that the companies intended to eliminate bene-
fits before bargaining.” 89 F.3d at 233.
By contrast, in this case, Mizes’ remarks were not
made in circumstances free from other unfair labor prac-
tices. Rather, they were made less than 2 weeks after
Store Manager Love’s unlawful April 4 questioning of
employee shift leaders about their union activities, and
his ordering them to prohibit other employees from en-
gaging in union activities and to report any such activi-
ties to him; only 4 days after the Respondent’s unlawful
April 11 announcement (discussed more fully in the fol-
lowing section) that it was not going to restore the health
benefits plan to the unit employees; and only a month
before the Respondent’s eventual unlawful May 19 fail-
ure to restore the health benefits plan to the unit employ-
ees. Second, Mizes’ remarks here were coupled with
conduct—his gestures toward and touching of the
floor—that would certainly convey the message that the
employer intended to eliminate benefits before bargain-
ing. Accordingly, even under the court’s analysis in
Exxon, Mizes’ remarks here would be found unlawful.
In Shaw’s Supermarkets, the Board found that the re-
spondent violated the Act when it told its employees that if
the union won the election, the “employees would be guar-
anteed minimum wages and workmen’s comp[ensation]
and that’s where our collective bargaining process would
begin,” and that “we would start with minimum wages and
workmen’s comp[ensation] and build from that point.”
The court denied enforcement of the Board’s order and
remanded the proceeding to the Board.4 The court particu-
larly noted that the Board had found no other violations of
the Act by the respondent, 884 F.2d at 36, whereas in al-
most all the similar cases reviewed by the court the Board
had expressly relied on the fact that the employers had also
committed other serious unfair labor practices. 884 F.2d at
40. Indeed, the court particularly noted that the Board
found in Belcher Towing Co., 265 NLRB 1258 (1982),5
that the respondent’s statement that bargaining would start
from “ground zero” violated the Act because it meant, “in
the context of [several] other unfair labor practices,” that if
the union won the election the respondent would reduce
benefits before the start of bargaining. Id. Here, of course,
like the respondent in Belcher Towing, and unlike the re-
spondent in Shaw’s Supermarkets, the Respondent has
committed other serious unfair labor practices. Thus,

4 On remand, the Board, while accepting the court’s determinations
as the law of the case, nevertheless expressed its continued disagree-
ment with the court’s conclusions. 303 NLRB 382 (1991).
5 Belcher Towing was relied on by the judge in the instant case.
Shaw’s Supermarkets, like Exxon, supra, is distinguishable
from the instant case. And, as with Exxon, even under the
court’s analysis in Shaw’s Supermarkets, Mizes’ remarks
here, made in the context of other unfair labor practices,
would be found unlawful.
3. We affirm the judge’s conclusion that the Respondent
violated Section 8(a)(3) and (1) of the Act by not restoring
the Prudential health benefits plan (the Prudential plan) for
the unit employees at the Respondent’s Telegraph Avenue
store (the Telegraph store) during the critical period preced-
ing the June 13 representation election at that store.6
A. Applicable Principles
Our dissenting colleague claims that Board precedent re-
garding the propriety of granting or withholding of benefits
during the critical period before an election is inconsistent
and fails to provide adequate guidance to employers that
are attempting to comply with the requirements of the Act.
We disagree. The law in this area is clear. In Lampi,
L.L.C., 322 NLRB 502 (1996), the Board recited the fol-
lowing standard in United Airlines Services Corp., 290
NLRB 954 (1988), for determining whether conduct in-
volving the grant of benefits is objectionable:

It is well established that the mere grant of bene-
fits during the critical period is not, per se, grounds
for setting aside an election. Rather, the critical in-
quiry is whether the benefits were granted for the
purpose of influencing the employees’ vote in the
election and were of a type reasonably calculated to
have that effect. As a general rule, an employer’s
legal duty in deciding whether to grant benefits
while a representation proceeding is pending is to
decide that question precisely as it would if the un-
ion were not on the scene. In determining whether a
grant of benefits is objectionable, the Board has
drawn the inference that benefits that are granted
during the critical period are coercive, but it has al-
lowed the employer to rebut the inference by coming
forward with an explanation, other than a pending
election, for the timing of the grant or announcement
of such benefits. [Id. at 502; citations omitted.]

Further, while an employer is not permitted to tell employ-
ees that it is withholding benefits because of a pending elec-
tion, it may, in order to avoid creating the appearance of
interfering with the election, tell employees that implemen-
tation of expected benefits will be deferred until after the
election—regardless of the outcome.7 These are compre-
hensible standards and guidelines for employer conduct
during the critical period prior to a representation election.8
6 The Respondent has over 120 stores in California, Oregon, and
Washington. The representation election, however, involved only the
Telegraph store.
7 See, e.g., Kauai Coconut Beach Resort, 317 NLRB 996, 997
(1995).
8 As discussed below, we find, contrary to the judge, that the Re-
spondent has established a legitimate business reason for restoring the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
B. Facts
In January 1997 the Respondent’s parent company de-
cided to change the Respondent’s health benefits from
the Prudential plan to the General American plan. Most
of the Respondent’s employees considered the General
American plan to be much less desirable than the
Prudential plan, and believed that the change would re-
sult in a diminution of their benefits. The upcoming
change was announced on February 5. Almost
immediately thereafter, the Respondent’s managers
began trying to persuade the parent company to restore
the Prudential plan. The change became effective on
April 1, just a few days prior to the Union’s April 4 filing
of its petition to represent the employees in the single-
location Telegraph store unit, and thus, just prior to the
start of the critical preelection period.
Following the implementation of the General Ameri-
can plan, the employees made the Respondent aware of
their dissatisfaction with it, and of their desire to return
to the Prudential plan. By about April 10 the Respon-
dent’s managers were able to persuade their superiors in
the parent company to implement new benefits for the
Respondent’s employees, similar to those encompassed
in the Prudential plan. On April 11 the Respondent an-
nounced to all of its employees except those in its six
East Bay district stores (including the Telegraph store)
that the Prudential plan was going to be restored.9 The
Respondent notified the East Bay district store employ-
ees that the Respondent was “not able to make this
change for those crew members who may be covered by
a pending National Labor Relations Board case.” The
Respondent told those employees that:

We regret that no change can be made for you at this
time. We have been advised by our lawyer that any
changes for crew members who may be involved in the
NLRB case would create legal risk at this time. The
law is quite clear that we are not allowed to change
wages, benefits, or do anything else that could be con-
sidered “buying” your votes in a possible election.

Prudential plan on a companywide basis to all of its stores, including
the Telegraph store, during the critical period prior to the election. Our
dissenting colleague, however, points to our disagreement with the
judge, and also to what he asserts is the Respondent’s inability to have
predicted with any assurance that we would find in its favor, as proof
that the above standards and guidelines themselves are not clear and
comprehensible. We cannot agree that a disagreement between the
Board and a judge over the ultimate result to be reached from the appli-
cation of a standard or guideline to a particular set of facts proves that
the standard or guideline itself is incomprehensible or even unclear.
9 At this time, in the representation proceeding, the Respondent and the
Union were still disputing whether the single-location Telegraph store unit
petitioned for by the Union was an appropriate unit, or whether, as con-
tended by the Respondent, a multilocation unit composed of all six of the
East Bay district stores was appropriate. In May, the Regional Director
ultimately determined that the petitioned-for single-location Telegraph store
unit was appropriate, and directed that an election be conducted in that unit
in June. The Union received a majority of the votes, and was thereafter
certified as the representative of the unit.
Please understand that we have taken this action solely
to avoid any risk of improper influence on any upcom-
ing election. We will give you further information as
soon as our situation with the NLRB becomes clear.
On May 19, after the Regional Director ordered an
election at the Telegraph store only, the Respondent re-
stored the Prudential plan to the employees of all but the
Telegraph store.
C. Analysis and Conclusions
We affirm the judge’s conclusion that the Respondent
violated Section 8(a)(3) and (1) of the Act by not restor-
ing the Prudential plan for the unit employees at the
Telegraph Avenue store during the critical period.
Contrary to the judge, however, we do find that, based on
the unusual and exigent circumstances confronting the Re-
spondent at the same time that the Union was filing its peti-
tion to represent the Telegraph store employees, the Re-
spondent has established a legitimate business reason for
restoring the Prudential plan on a companywide basis at all
of its stores—including the Telegraph store—during the
critical period prior to the election. Thus, the parent com-
pany announced the change in health benefit plans about 2
months before the April 4 filing of the representation peti-
tion. Immediately following the announcement of the
change, the Respondent began attempting to persuade its
parent company to restore the Prudential plan. The actual
April 1 implementation of the change, and the accompany-
ing companywide expressions of employee distress about
the loss of the Prudential plan, began just a few days before
the start of the critical period. Given the importance of em-
ployee confidence in their health care insurance and benefit
plan, the urgent expressions of companywide employee
distress over their loss of the Prudential plan, and the rea-
sonable prospect of at least some weeks passing before the
finalization of the representation proceeding,10 we find that
the Respondent has presented a persuasive business reason
for immediately announcing the restoration of Prudential
plan benefits companywide as soon as it received permis-
sion from the parent company on April 10 to restore such
benefits. Thus, we find that the Respondent has established
that the timing of the announcement and implementation of
the restoration of Prudential plan benefits was governed by
factors other than the union campaign.11
10 The election was ultimately held about 2-1/2 months later, on June
13.
11 Cf. Adams Super Markets, 274 NLRB 1334 (1985) (announce-
ment of new a medical insurance plan during critical period not unlaw-
ful where a new chief executive officer took command 1 month before
filing of representation petition, and, in response to frequent employee
complaints about existing medical insurance plan, received authoriza-
tion from board of directors 2 weeks before the critical period to pro-
ceed with a new medical insurance plan as quickly as possible; imple-
mentation of new a plan during the critical period, rather than delaying
until after the election, found not to have been motivated by union
campaign but instead to have been economically justified by fact that a
new plan, unlike the former self-insured plan, placed cap on employer’s
liability).
NOAH’S BAY AREA BAGELS, LLC 191
We find, however, in agreement with the judge, that
the Respondent unlawfully withheld restoration of the
Prudential plan at the Telegraph store while at the same
time lawfully restoring it at all of its other stores,12 with-
out providing the Telegraph store employees with assur-
ances that the withholding of the Prudential plan at that
store was only temporary and that it would be restored
retroactively to them following the election, regardless of
its outcome.13 We do not agree with our colleague that
the Respondent’s expression of regret to the Telegraph
store employees that the Prudential benefits could not be
restored to them “at this time,” coupled with its promise
that it would give them “further information as soon as
our situation with the NLRB becomes clear,” constitutes
an assurance that these benefits would nevertheless be
restored to them retroactively following the election,
regardless of its outcome.
We also do not agree with our colleague that if the Re-
spondent had restored the Prudential plan to the Tele-
graph store at the same time it was restoring it to all of its
other locations, it would have run afoul of precedent
holding that it is unlawful for an employer to grant bene-
fits while an election is pending unless the employer can
establish that the benefit had been planned prior to the
union’s arrival on the scene, or that the grant of the bene-
fit was part of an established past practice. An employer
in circumstances such as those confronting the Respon-
dent here may prove that it acted lawfully by establishing
that there was a persuasive business reason demonstrat-
ing that the timing of the announcement or grant of bene-
fits was governed by factors other than the union cam-
paign. Such a persuasive business reason, like the one
presented by the Respondent here, is not necessarily lim-
ited to an established past practice or even a course of
conduct that was planned prior to the advent of the union
on the scene.
Sears, Roebuck & Co., 305 NLRB 193 (1991), relied on
by our colleague in this context, does not hold to the con-
trary. There, the Board found that the employer announced
and implemented a district-wide incentive program (includ-
ing at the particular facility where a representation election
was pending) because of the election campaign. Here, on
the other hand, the Respondent has persuasively demon-
strated that it restored the Prudential plan at all of its stores
companywide without regard to the election campaign at
the Telegraph store. But just as persuasively, the record
establishes that the Respondent singularly failed to restore

12 See Modesto Convalescent Hospital, 235 NLRB 1059 (1978),
enfd. 624 F.2d 192 (9th Cir. 1980) (employer unlawfully withheld
across-the-board wage increases from unit employees at its facility
where objections to election were pending, while at the same time
granting such increases at all its nonunion facilities). Cf. Stanley Smith
Security, 270 NLRB 225 (1984) (representation case; election results
will not be set aside where increase in benefits results from corporate-
wide decision and is implemented corporatewide in a normal business
fashion).
13 See Kauai Coconut Beach Resort, supra.
the plan at the Telegraph store because of the pending elec-
tion, without assuring the Telegraph employees that it
would restore this plan at that store following the election,
regardless of the outcome.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3 and
4, respectively.
“3. By questioning employees about their union activi-
ties and the union activities of other employees; instruct-
ing employees to stop the union activities of other em-
ployees; and threatening employees that, if they selected
the Union as their collective-bargaining representative,
bargaining would ‘start at zero’ and/or ‘from the
ground,’ in a manner that suggested that they would lose
benefits because of their support of the Union, the Re-
spondent has violated Section 8(a)(1) of the Act.
“4. By withholding medical and other benefits from
the Telegraph store employees, in order to discourage
union support and induce employees to vote against the
Union, the Respondent has violated Section 8(a)(3) and
(1) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Noah’s Bay Area Bagels,
LLC, Berkeley, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraphs 1(a) and (b),
respectively.
“(a) Questioning employees about their union activi-
ties and the union activities of other employees; instruct-
ing employees to stop the union activities of other em-
ployees; and threatening employees that, if they selected
the Union as their collective-bargaining representative,
bargaining would ‘start at zero’ and/or ‘from the
ground,’ in a manner that suggested that they would lose
benefits because of their support of the Union.
“(b) Withholding medical and other benefits from the
Telegraph store employees, in order to discourage union
support and induce employees to vote against the Union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER BRAME, dissenting in part.
I agree, for the reasons stated in the majority opinion,
that Store Manager Sean Love’s remarks regarding em-
ployee Joshua Smith’s distribution of union literature were
not unlawful. Contrary to my colleagues, however, I would
reverse the judge and find that the Respondent did not vio-
late Section 8(a)(3) and (1) by failing to restore the former
medical benefits plan to employees at the Telegraph Ave-
nue store prior to the election, or violate Section 8(a)(1)
through Chief Executive Officer Jim Mizes’ statement that
bargaining would “start from zero.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
In characterizing its dilemma regarding the restoration
of the health benefits as a “Hobson’s choice,” the Re-
spondent, in my view, accurately pointed out a perplex-
ing inconsistency in Board precedent regarding the grant-
ing or withholding of benefits during the period when a
representation petition is pending. In my view, it is es-
sential that the Board re-examine this area of the law in
order to provide assistance to the majority of employers
that are legitimately attempting to comply with the Act’s
requirements. In this regard, I would find that an em-
ployer acts unlawfully when it manipulates the granting
or withholding of benefits with the purpose of interfering
with employee free choice in the election, as detailed
below. In this case, I would find that the record suggests
no such manipulation.
The facts here are undisputed. The Respondent’s new
parent company, Boston Chicken, decided in January
19971 and announced the next month that, effective April
1, the Respondent’s employees would receive the Gen-
eral American health benefits plan that covered other
Boston Chicken employees, rather than the Prudential
plan in which they were then enrolled. As scheduled, the
change took place on April 1, 3 days before the Union
filed its petition in this proceeding. Employees at the
Respondent’s stores immediately voiced their complaints
about the new plan, which they viewed as a reduction in
benefits, and the employees at one location even refused
to enroll in it.
The Respondent’s managers, who had anticipated the
employees’ dissatisfaction and had already argued to the
parent company that the change would be detrimental,
redoubled their efforts and finally, about April 10, per-
suaded their superiors to restore benefits comparable to
the Prudential plan. The following day, the change was
announced to employees, except for the employees of the
East Bay district stores, which the Respondent was then
asserting to be the appropriate bargaining unit in the
Board preelection proceeding. Those employees re-
ceived a letter stating:

Noah’s has decided to offer a choice of benefit
plans by reinstating its prior medical, dental, and va-
cation plans to Noah’s crew members. Unfortu-
nately, we are not able to make this change for those
crew members who may be covered by a pending
National Labor Relations Board case. We have
sought to restore benefits for some time, and we are
now able to announce the change.
We regret that no change can be made for you at
this time. We have been advised by our lawyer that
any changes for crew members who may be in-
volved in the NLRB case would create a legal risk at
this time. The law is quite clear that we are not al-
lowed to change wages, benefits or do anything else

1 All dates are 1997 unless otherwise indicated.
that could be considered “buying” your votes in a
possible election.
Please understand that we have taken this action
solely to avoid any risk of improper influence on any
upcoming election. We will give you further infor-
mation as soon as our situation with the NLRB case
becomes clear.

After the Regional Director determined that a single-
location unit at the Telegraph store was appropriate, the
Respondent restored the previous benefits to the employ-
ees at all of the other East Bay district stores. Only the
Telegraph store employees remained under the General
American plan.
The judge and my colleagues rely on precedent that
requires employers to act without regard to the organiz-
ing campaign,2 and fault the Respondent for failing to
restore the Prudential benefits to the Telegraph employ-
ees on the basis of the pending union petition. However,
if the Respondent had instead restored the benefits, in
response to its employees’ dissatisfaction, that decision
would have run afoul of another line of precedent, hold-
ing that preelection changes that are not a matter of rou-
tine practice violate Section 8(a)(1), unless the change
had been decided on and announced before the petition
was filed.3 In my view, it is arbitrary and unreasonable
to find that both of these alternatives, granting the benefit
and not granting it, violate the Act. Board precedent,
however, does precisely that.
My colleagues contend that the Board standard is
straightforward. They state that employers must simply
behave as if the union were not present. Although, under
the precedent they cite, the grant or announcement of a
benefit during the critical preelection period gives rise to
an inference that the employer is acting unlawfully, my
colleagues note that an employer may rebut the inference
“by coming forward with an explanation, other than a
pending election, for the timing of the grant or an-
nouncement of such benefits.”4 The majority finds that
the Respondent demonstrated a legitimate business justi-
fication for restoring the Prudential plan, on a company-
wide basis including the Telegraph store, based on “the
importance of employee confidence in their health plan,
the urgent expressions of companywide employee dis-
tress over their loss of the Prudential plan, and the rea-
sonable prospect of at least some weeks passing before
the finalization of the representation proceeding.” There-
fore, the majority concludes, the Respondent could and
should have restored the benefit to all employees, includ-
ing those in the Telegraph unit.
2 See, e.g., Russell Stover Candies, 221 NLRB 441 (1975); Groves
Truck & Trailer, 281 NLRB 1194, 1195 (1986), modified 294 NLRB 1
(1989).
3 See, e.g., Sears, Roebuck & Co., 305 NLRB 193, 195–196 (1991),
citing NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
4 Lampi. L.L.C., 322 NLRB 502 (1996).
NOAH’S BAY AREA BAGELS, LLC 193
One need look no further than the instant case to un-
derstand why an employer would take little comfort in
the majority’s application of what they consider a
straightforward rule. In this very case, based on pre-
cisely the same facts and testimony, the judge deter-
mined that the Respondent “failed to demonstrate the
need to implement the change during this time.” The
judge concluded that the Respondent acted unlawfully,
not by failing to restore the Prudential plan to all em-
ployees, but by announcing the restoration as to any em-
ployees prior to the election. Certainly the Respondent
could not have predicted with any assurance whether the
Board would determine that restoration of the Prudential
plan to all employees would be, as the majority finds, a
business necessity based on urgent employee distress and
the need for confidence in the health plan, or, as the
judge suggested, a discretionary action undertaken to
mollify unhappy employees while a representation elec-
tion was pending.
As Judge Randolph commented in his dissent in
Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 839 (D.C.
Cir. 1998), a case that presented this issue in the context
of a preelection wage increase,
When a traffic light simultaneously blinks “Stop” and
“Go” everyone knows repairs are needed. If a motorist
encountering the light proceeds ahead while another
motorist pauses, it is unimaginable that both would be
guilty of failing to heed the signal. The Board’s “law”
governing pre-election wage increases approaches the
unimaginable.
In my view, sound labor policy requires the Board to ac-
knowledge the dilemma of well-meaning employers under
current law and to provide guidance for identifying a viable
and lawful course of action.
In NLRB v. Otis Hospital,5 the First Circuit applied an
approach that, in my view, satisfactorily protects the
rights of employees in an election without rendering the
employer powerless to make normal business decisions
that may affect those employees. The court summarized
the basic principles as follows:

Withholding a wage increase during a union or-
ganizing campaign has been held to violate section
8(a)(1) of the Act under any of three conditions: if
the increase was promised by the employer prior to
the union’s appearance; if it normally would be
granted as part of a schedule of increases established
by the employer’s past practice; or if the employer
attempts to blame the union for the withholding.
The common rationale of these cases is that with-
holding a wage increase in these circumstances has
the obvious effect of discouraging employees from
exercising their right to organize and bargain collec-
tively. On a similar theory, to grant benefits during

5 545 F.2d 252 (1st Cir. 1976).
a union organizing campaign has been held to vio-
late section 8(a)(1) if, at the time, the employer
knew or should have known that a union was orga-
nizing or that an election was pending, and if the
benefits were granted with the purpose of interfering
with the employees’ rights to organize. [Citations
omitted.]

The court concluded that neither the granting nor the with-
holding of benefits during an organizing drive is thus per se
illegal; either course of conduct becomes unlawful “only if
the employer is found to be manipulating benefits in order
to influence his employees’ decision during the union’s
organizing campaign.”6
The Board has also analyzed the lawfulness of an em-
ployer’s conduct based on whether the employer used
manipulation to interfere with employee rights in an elec-
tion. In Aluminum Casting & Engineering Co.,7 the
Board, relying on Otis Hospital, found that the employer
violated Section 8(a)(3) and (1) by withholding a wage
increase while election objections were pending. The
Board found that the employer had a well-established
practice of granting annual wage increases based on a
wage survey. Although during the election campaign the
employer had led employees to believe that they would
receive the increase as usual, it failed to implement the
increase, and later circulated leaflets indicating that the
increase could not be granted because the union “stuck
its nose in.” The Board held that an employer may defer
an increase, telling employees that the deferral is to avoid
the appearance of election interference, but must be care-
ful not to blame the union for the lack of an increase.
Similarly, in Pennsylvania Gas & Water,8 the Board
found a violation of Section 8(a)(3) and (1) when the em-
ployer granted a systemwide increase to all nonunit em-
ployees based on a periodic audit, but, on advice of counsel,
did not grant the increase to employees involved in an elec-
tion. The Board noted that the employer did not merely
defer the increase and truthfully inform employees that its
actions were designed to avoid the appearance of interfer-
ence. Rather, the employer declined to grant the increase
despite the union’s express urging to do so. Moreover, the
employer’s purpose of gaining advantage in the election
was revealed by a letter to unit employees, in which the
employer addressed the increase and went on to urge the
employees to vote against the union.
In contrast, the Board found in Somerset Welding &
Steel9 that an employer lawfully deferred a pay increase
that it had informed a new employee he would receive
after 30 days “if everything was going alright.” Because
the petition was filed during the 30-day period, the em-
6 Id. at 254–255.
7 328 NLRB 8 (1999).
8 314 NLRB 791 (1994), enfd. mem. 61 F.3d 895 (3d Cir. 1995).
9 304 NLRB 32 (1991), remanded on other issue 987 F.2d 777 (D.C.
Cir. 1993), modified 314 NLRB 829 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
ployer explained to the employee that the increase would
be delayed because “everybody would think I’m buying
votes off of you.” The Board adopted the administrative
law judge’s reasoning that, despite the principle that the
employer should act as if the petition had not been filed,
the increase at issue would have been vulnerable to alle-
gations of unlawful interference. Therefore, “fairness
demands that the [e]mployer be privileged to withhold
[an increase], provided that it does not utilize the incident
as a means of combatting unionization by casting blame
for the employee’s loss upon the [u]nion, the Board or
the election process.” Id. at 47. Because the employer
did not take the offensive by attributing blame and, in
explaining the situation to the employee, remained non-
committal concerning what would occur after the elec-
tion, the deferral was deemed lawful.
The Respondent here, clearly conformed to the stan-
dards for lawful action articulated and applied in these
cases. The initial change to the General American plan,
which had been previously announced, was implemented
only days before the filing of the petition. Although the
managers had foreseen a strong negative reaction to the
change, their superiors had not. When vehement and
widespread employee dissatisfaction resulted from the
change, the Respondent reasonably concluded that an
immediate response was necessary.10
The letter to the East Bay district employees clearly
demonstrates that the Respondent here believed, in my
view with good reason, that Board precedent prevented it
from restoring the benefits to employees involved in the
election. Therefore, the Respondent followed an ap-
proach previously employed and deemed lawful by the
Board when it implemented changes to an employee
handbook during an election campaign in another loca-
tion:11 it informed the employees that it could not law-
fully change their benefits at that time, and that they
would receive further information after the election.
Like the employer in Somerset Welding, the Respondent
did not seek to manipulate the employees’ benefits for its
own advantage in the election or cast blame on the Union
for the temporary withholding of the Prudential plan at
the Telegraph store. Although I agree with my col-
leagues that the Respondent violated the Act in other
respects prior to the election, I would find that, in defer-
ring the restoration of the Prudential plan, the Respon-
dent acted prudently and in accordance with the prece-
dent discussed above.12 That the judge and my col-

10 Like my colleagues, I disagree with the judge’s suggestion that,
even when confronted by the employee protests, the Respondent could
have delayed the change for all of its employees until after the election.
Under some circumstances, decisions affecting employees cannot be
delayed, even during an organizing campaign. Nor should the filing of
an election petition at one of an employer’s facilities require the em-
ployer to freeze terms and conditions of employment at all locations.
11 See Noah’s New York Bagels, Inc., 324 NLRB 266 (1997).
12 I agree with my colleagues that the Respondent established a strong
business justification for restoring the Prudential benefits to all employees,
leagues nonetheless find that the Respondent violated the
Act, in my view, sharply illustrates that this aspect of the
law has become a frustrating and futile maze for employ-
ers, and that serious reassessment by the Board and the
articulation of clear guidance are needed.
Current Board precedent concerning Mizes’ statement
that negotiations would “start from zero” is not similarly
ambiguous, and amply supports reversing the judge’s find-
ing of a violation. Under the precedent cited by the judge,
“bargaining from ground zero” or “bargaining from
scratch” statements by employer representatives violate
Section 8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of loss of
existing benefits and leave employees with the impres-
sion that what they may ultimately receive depends on
what the union can induce the employer to restore. On
the other hand, such statements are not violative of the
Act when other communications make it clear that any
reduction in wages or benefits will occur only as a re-
sult of the normal give and take of negotiations.13
The Board and courts have thus recognized that “bargain-
ing from scratch” or “bargaining from zero” statements are
not per se unlawful. Rather, such statements “might, de-
pending on the context, innocently represent a legal truth
about how collective bargaining works.” Shaw’s Super-
markets v. NLRB, 884 F.2d 34 (1st Cir. 1989). In Shaw’s,
the court reversed the Board’s determination that the em-
ployer’s statement that employees were guaranteed mini-
mum wage and workers’ compensation and that was where
bargaining would begin violated the Act. The court noted
that the statement did not convey a threat to eliminate bene-
fits prior to bargaining and was made in a context free of
other unfair labor practices. Id. at 40. See also Exxon Re-
search & Engineering Co. v. NLRB, 89 F.3d 228, 232–233
(5th Cir. 1996) (statement that bargaining would begin with
a blank piece of paper not unlawful where circumstances
did not suggest employer would eliminate benefits before
bargaining).
In Shaw’s, the court reviewed Board precedent demon-
strating the importance of the factual context in this area.
This precedent shows that the Board has found employer
statements unlawful where they expressly threaten to

and I would find that, in accordance with the above precedent, the Respon-
dent could lawfully have restored the benefits to the Telegraph employees
under these circumstances. Unlike my colleagues, I do not find that the
Respondent’s statement in its letter to employees that “we will give you
further information as soon as our situation with the NLRB case becomes
clear,” without specifying that the Prudential benefits would be restored
regardless of the election’s outcome, renders the withholding of the bene-
fits unlawful. First, I note that the employer statement found lawful in
Somerset Welding was similarly noncommittal. Second, I do not find that
any particular formulation or “magic words” should be relied on to deter-
mine whether the employer is manipulating employee benefits. Such a
determination, in my view, should be made by considering all of the rele-
vant circumstances.
13 Noah’s New York Bagels, supra, 324 NLRB at 266, citing Taylor-
Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd. 810 F.2d 638 (9th
Cir. 1982).
NOAH’S BAY AREA BAGELS, LLC 195
rescind current wages or benefits in advance of bargain-
ing, or occur in the presence of very serious unfair labor
practices, such as discriminatory action against employee
union organizers.14 In contrast, similar statements do not
violate the Act, but simply describe the realities of col-
lective bargaining, when made in a context in which the
employer has not demonstrated an intent to reduce wages
or benefits prior to bargaining or to bargain in bad faith,
or where the employer has not engaged in reprisals
against union activists, even though it may have commit-
ted other less serious unfair labor practices.15 Within this
framework, whether the factual context of a “bargaining
from scratch” statement is sufficiently threatening to
render the statement unlawful is, of course, a matter of
judgment to be determined on a case-by-case basis.
In the present case, five witnesses testified about
Mizes’ statement, variously quoting him as saying that
“If we start bargaining, we are going to start from zero,”
that everything would have to be negotiated “from the
ground up,” that “everything was up for grabs,” that “we
would start from scratch or ground zero,” and that “eve-
rything would start from the beginning, from the
ground.”16 Each witness, however, went on to testify that
in the same remarks Mizes further stated that bargaining

14 Mississippi Chemical Corp., 280 NLRB 413 (1986) (express
threat that bargaining would begin only after employees’ wages and
benefits were reduced, and employer had committed unfair labor prac-
tices including coercive interrogation; threats of discharge, other repri-
sals, and futility; discharge and other discrimination against primary
union adherent; confiscation of union literature; and implementation of
more onerous working conditions); Fountainview Place, 281 NLRB 26
(1986) (statement made after discriminatory transfer of principal union
activist to less desirable position; employer also unlawfully threatened
to discharge the same employee for supporting the union and discrimi-
natorily transferred her to night shift); Belcher Towing, 265 NLRB
1258 (1982), affd. in relevant part 726 F.2d 705 (11th Cir. 1984)
(statement found threat to reduce benefits before bargaining in context
of employer’s suspension of strong union advocate; denial of higher-
paid work to another strong union supporter; surveillance and creation
of impression of surveillance of union activities; interrogations; threats,
including threat of discharge; promise of benefits; and maintenance of
policies that employees covered by collective-bargaining agreements
not eligible for certain benefit plans).
15 See, e.g., Clark Equipment, 278 NLRB 498 (1986), overruled in
part on other grounds Nickles Bakery of Indiana, 296 NLRB 927 (1989)
(statement lawful where employer found to have threatened loss of
benefits and other reprisal, interrogated employees, conducted surveil-
lance of union activities, and interfered with Board processes); Camp-
bell Soup Co., 225 NLRB 222 (1976) (employer unlawfully denied
wage increase to employee, coercively interrogated employee, promul-
gated and enforced overly broad no-solicitation/no-distribution rule,
solicited grievances, and made implied promise of benefit); Ludwig
Motor Corp., 222 NLRB 635 (1976) (employer made implied threat of
reprisal and threat of plant closure or relocation).
16 I note that the credited testimony quoted by the majority represents
three witnesses’ individual versions of what they recalled Mizes saying.
From these varied accounts, the judge made the following findings, “I find
Mizes, on April 15, informed the employees bargaining would start from
zero and/or from the ground, repeated the comment and emphasized it with
gestures. I also find Mizes informed the employees collective bargaining
could result in their receiving less, more or the same wages and other terms
and conditions of employment.”
could result in employees’ getting more, less, or the same
wages and benefits. In addition, the Respondent’s cam-
paign literature states that “It is possible that you could
end up with lower, better, or the same wages and benefits
than you currently have.”
The Respondent clearly did not tell employees that it
would at any time reduce their wages and benefits; it sim-
ply dispelled any misapprehension employees may have
had that bargaining started with wages and benefits at their
current levels. Thus, the Respondent honestly informed
them that “everything was up for grabs” and that the out-
come of negotiations was unpredictable. These statements
by Mizes, viewed in context with his other remarks, con-
veyed to employees with reasonable accuracy the funda-
mental process of collective bargaining.
Moreover, I disagree with the majority’s assessment of
the context in which Mizes’ statements occurred. In my
view, Mizes’ statements did not occur in the context of
unfair labor practices like those in the cases cited by the
Shaw’s court in which “bargaining from scratch” state-
ments were found unlawful. For the reasons discussed
above, and contrary to my colleagues, I do not find that
the Respondent violated the Act by deferring the restora-
tion of the Prudential benefit plan to the unit employees.
Thus, the only remaining unfair labor practice committed
by the Respondent consisted of Manager Sean Love’s
questions to the shift leaders, under the mistaken belief
that they were statutory supervisors, as to their knowl-
edge of employee union activities, and his statements
concerning what actions they were expected to take in
support of the Respondent’s opposition to the Union.
These questions and statements did not provide a context
of such coercion and reprisal in response to union activ-
ity that employees would reasonably understand Mizes’
subsequent remarks as a threat to eliminate benefits be-
fore bargaining commenced. Therefore, I would find
that Mizes’ statements did not violate Section 8(a)(1).

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

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
WE WILL NOT question you about your union activi-
ties and the union activities of other employees; instruct
you to stop the union activities of other employees; or
threaten you that, if you selected the Union as your col-
lective-bargaining representative, bargaining would “start
at zero” and/or “from the ground,” in a manner that sug-
gests that you would lose benefits because of your sup-
port of the Union.
WE WILL NOT withhold medical and other benefits
from you, in order to discourage union support and in-
duce you to vote against the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
rights guaranteed you by the Act.
WE WILL offer the Telegraph store unit employees
the same medical and other benefits granted our other
counterpersons, cooks, and other staff in similar posi-
tions or, if those benefits no longer exist, substantially
equivalent benefits, without prejudice to your seniority or
any other rights or privileges previously enjoyed, and
make you whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against you.
NOAH’S BAY AREA BAGELS, LLC
Daniel F. Altemus Jr., Esq., for the General Counsel.
Robert Leinwand, Esq. and John C. Corcoran, Esq. (Littler,
Mendelson) of San Francisco, California, for the Respon-
dent.
Joni Jacobs, Esq. (Davis, Cowell & Bowe), of San Francisco,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. These consoli-
dated cases were tried on October 7 and 8, 1997,1 at Oakland,
California. The charge in Case 32–CA–16086, was filed by the
United Food & Commercial Workers Union, Local 870, United
Food & Commercial Workers International Union, AFL–CIO–
CLC (Union or Charging Party), on May 12, against Noah’s
Pacific, LLC f/k/a Noah’s Bay Area Bagels, LLC aka Noah’s
Bagels (Respondent or Noah’s). The charge in Case 32–CA–
16244 was filed on July 21.2 During the trial, the parties agreed
to a settlement in Case 32–CA–16244. The General Counsel
withdrew the allegations concerning this charge and those por-
tions of the proceeding covered by the agreement were re-
manded to the Regional Director for Region 32 for compliance.
The complaint in Case 32–CA–16086, was issued by the Re-
gional Director for Region 32 of the National Labor Relations
Board on July 31. The consolidated complaint was issued Sep-
tember 19. The consolidated compliant, as amended, alleges
Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act. Principally, the complaint alleges Re-
spondent violated Section 8(a)(1) of the Act by: (1) unlawfully
questioning employees about their union activities and the un-
ion activities of other employees; (2) instructing employees to
stop other employees from engaging in union activities; (3)

1 All dates are in 1997 unless otherwise indicated.
2 Respondent amended its answer to the consolidated complaint, to
admit, among other matters, that the charges were timely filed.
informing employees if they selected the Union as their collec-
tive-bargaining representative, bargaining would start “from the
floor”; (4) threatening an employee with discipline for distrib-
uting union flyers; and (5) interrogating an employee about his
union activities. The complaint further alleges Respondent
violated Section 8(a)(1) and (3) of the Act by offering to all of
the employees in its East Bay district, with the exception of
those employees employed at its Telegraph store, an optional
benefit package.
Respondent’s timely filed answer to the complaint, as
amended, admits certain allegations, denies others, and denies
any wrongdoing. Respondent asserts it could not offer the bene-
fit package to the employees of its Telegraph store because they
were in the midst of a union organizing campaign.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based on the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following3
FINDINGS OF FACT
I. JURISDICTION
Based on Respondent’s answer to the complaint, as amended
at hearing, I find it meets one of the Board’s jurisdictional stan-
dards and the Union is a statutory labor organization.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the production and retail sale of
bagels and other food products at over 120 stores in California,
Oregon, and Washington. One division of Respondent’s opera-
tion is called the East Bay district, an area east of San Fran-
cisco, California. One store in this division is located on Tele-
graph Avenue, Berkeley, California. (Telegraph store). The
Union started organizing the Telegraph store. At the times here
material, the manager of the Telegraph store was Sean Love;
Lisa Hennig was the East Bay district manager; Lorraine Mor-
ton, the regional manager; Nico Gallegos, human resources
director and Hennig’s boss; and, the chief executor officer was
Jim Mizes. Mizes, Gallegos, Martin, and Hennig had left Re-
spondent’s employ at the time of this hearing.
In addition to a manager, the Telegraph store had two assis-
tant managers, Damian Cooper and Krista Sears. The parties
stipulated the manager and assistant managers are supervisors
as defined in the Act. In addition to these managers, the Tele-
graph store has 12 to 15 employees. At the times here pertinent,
the Telegraph store had about four shift leaders4 as part of the
regular crew of bakers and counterpersons. The shift leaders
were Dylan Martin, Matias Wolanski, Fernando Cazares, and
Bashair Allah.
Many of the background facts were the subjects of stipula-
tions entered into by all parties to this proceeding. The Union
filed a Representation Petition on April 4, 1997, seeking to
represent a unit of employees at the Respondent’s Telegraph
store. Also on or about April 4, a representative of the Union,
John Nunes, visited the Telegraph store and submitted to Love,
3 I specifically discredit any testimony inconsistent with my findings.
4 The terms “shift manager” and “shift leader” were used inter-
changeably in the record. It is admitted shift managers are not supervi-
sors as defined in the Act.
NOAH’S BAY AREA BAGELS, LLC 197
as Respondent’s representative, a letter requesting the Union be
recognized as the Telegraph store’s employees collective-
bargaining representative. Love declined the request and for-
warded the Union’s letter to his superior, Hennig. Hennig in-
formed Love she was sending him some information he should
share with his supervisors.
The filing of the representation petition resulted in the matter
being set for hearing and a hearing was conducted in April. The
parties further stipulated:

The issue at that hearing was whether the unit sought by the
Petitioner, which consisted of a single store facility, was ap-
propriate or whether, as contended by Respondent, a unit
consisting of Respondent’s six East Bay district stores was an
appropriate unit.

On May 15 the Regional Director issued a Decision and Di-
rection of Election, finding a single unit consisting of the Tele-
graph store was an appropriate unit, and directed an election in
that unit. That decision was not appealed. An election was con-
ducted. A majority of the employees voted in favor of the peti-
tioning Union. Respondent filed objections based on its asser-
tions improper conduct affected the election and sought to set
the election aside. The Regional Director for Region 32 issued
a supplemental decision on July 14 overruling all the objections
filed by Respondent. No exceptions were filed to the Regional
Director’s supplemental decision.
B . The April 4 Meeting with Love
Love called a meeting with three of the shift leaders in his
office as a result of the Union’s recognition request. Bashair
Allah, Dylan Martin, and Fernando Cazares attended the man-
datory meeting. Love announced he had received a request
from the Union to represent the Telegraph store employees.
According to Allah,5 Love informed the three shift leaders:

that we [are] not officially able to vote in any union activities
because we were considered management crew, and that any
information about the union was to either be taken or not
passed out. The information was not to be on the floor during
work hours unless someone was on their break and outside
the store[.]
Any information was, more or less, to be reported to
Sean if he was not on the floor, if he was not able to see it
himself. Because now that we were going to be unable to
vote, we were supposed to take on a more active approach
as manager to make sure that this information can be dis-
tributed on the floor. . . .
That we were supposed to be on the side of Noah. We
weren supposed to be part of the union. 6

5 I find Allah credible. He appeared forthright and his manner re-
flected he was attempting to give complete and accurate answers. He
seemed to possess good recall about the portions of the meeting which
interested him and candidly admitted he stopped paying attention when
the others started talking about the pros and cons of unionization. I note
Respondent admitted on brief Allah was a credible witness and Love
admitted the correctness of most if not all of his testimony concerning
this meeting.
6 Love admitted he started the meeting by announcing to the shift
leaders there was a union organizing campaign in the store, and they
would not be able to participate in it because they are supervisors. He
also admitted he instructed they were to look out for certain activities in
the store such as the distribution of union authorization cards and any
violations of store policy. Love could not recall if he asked the shift
leaders to report to him any other violations of this policy or if he asked

Cazares informed Love he believed he was incorrect, that
shift leaders could vote in a representation election. Martin and
Cazares discussed their favorable past experiences with unions
and Love informed them his prior dealings with unions resulted
in his dislike for unions. According to Allah: “Sean had, basi-
cally, given his disapproval of the union and us, more or less,
wanting or inviting a union to have third-party presence be-
tween the employees and Noah’s as an official entity.” Love
informed the three shift leaders that union literature and solici-
tation activities were:

not supposed to be on the floor during business hours
unless people were on their break and outside of the store.
Any information that came from the union was to go di-
rectly to him. And that we weren supposed to take any in-
formation—that we weren[’t] supposed to distribute and
pass out any information. That we were supposed to be on
the side of Noah’s, or more or less part of the management
squad or team.

The shift managers informed Love they were not supervisors
near the end of the meeting. Love did not terminate the meeting
immediately after he received this information. He did not imme-
diately pause and consult with his superiors concerning the su-
pervisory status of the shift leaders. Allah and Cazares had met
with the Union prior to April 4 and understood they were not
supervisors and could vote in a representation election. There is
no evidence Love or any of Respondent’s other managers knew if
any of the shift leaders were active in the union organizing cam-
paign at the time of this meeting. To the contrary, Love admitted
he called the meeting under the mistaken belief the shift leaders
were supervisors, and thus, were required to join Respondent in
its campaign to defeat the union organizing effort. During the
course of this meeting, Love was receiving by facsimile, informa-
tion concerning the conduct of supervisors during an organizing
campaign and related portions of this information to the attending
shift leaders. Included in this information was a list of actions
supervisors could and could not take, which Love read to the
attendees.7 Allah left the meeting before the other attendees.

them to report any discussions they heard in the store about the Union.
He also could not recall if he asked them whether they had signed any
cards. Love admitted asking the shift leaders if they knew anything
about the union organizing activity. Love acknowledged informing the
attendees Respondent would not be receptive to the idea of union repre-
sentation. Love did not directly refute most if not all Cazares’ and
Allah’s testimony concerning his statements.
7 Allah recalled Love said they could not threaten employees, they
could not ask employees about their union status, could not spy on
union activities and they could not make any promises. Allah testified:

A. He [Love] was saying that we weren[’t] supposed to do
this, we weren’t’ supposed to do that. However, there were ways
to access information if you wanted information—from that point
on—I mean, he just put that out there like, okay, you can’t do
this, but you can do that, but it can be done.
Q. BY MR. LEINWAND: So, he was telling you there were
illegal ways to do some things and there are legal ways to do
some things?
A He was telling us from the point of—the way I understood
what he was saying was that you should not go up to any em-
ployee and say this or do this or do that. However, people can
ask you questions, you couldn’t’ ask questions and those ques-
tions that people ask you, answers can come out from either side
which can be helpful or not helpful to the union or Noah’s or
whatever.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
Much of Allah’s and Love’s testimony was corroborated by
Cazares. At the beginning of the meeting, Love informed the
shift leaders a union organizing effort was occurring in the
store and he was awaiting “some faxes that were coming
through from a law firm with instructions of what to instruct us
on what to do in that situation.” While waiting for the informa-
tion, Love asked the shift leaders “if we had any knowledge of
this unionization that was taking part at the store.” The shift
leaders did not respond to this question.
Cazares recalled Love next asked the shift leaders:

if anyone had approached us to fill out the small union card.
Again, no one answered to that. The fax was coming in while
he was asking these questions. I recall him telling us that such
things should not be tolerated at the store. If we were to see
anyone speaking or handing out any kind of pamphlet, to re-
port it to me and to not allow it to take place in the store.
I remember me asking him if there was any place in
the store that was allowed to speak about unionization, for
example, the breakroom. We had a little sofa there. And
he said that he was going to have the sofa removed from
the store so there wouldn’t be any more breakroom, if it
came down to that. That’s pretty much it.8

I credit this testimony of Cazares. He appeared candid and
displayed good recall.9 When afforded the opportunity to tailor
his testimony so it would be unfavorable to Respondent, he did
not take advantage of the situation. For example:

8 On cross-examination, Cazares consistently testified, as follows:

Q. Okay. Going back to that meeting, staying on that meet-
ing, you stated that Mr. Love told you that he would take out the
couch from the room?
A. Yes, from the breakroom.
Q. And why did Mr. Love say that?
A. So there wouldn’t be any breakroom or any area where
employees would be able to speak about union issues.

Cazares immediately admitted he did not reference these comments
in his affidavit and that his memory was clearer at the time he gave his
affidavit. Such admissions, in the circumstances of this case, do not
require discrediting his testimony. The nature and circumstances of
Cazares giving his affidavit were not explored. Whether the informa-
tion contained in the affidavit was restricted by the nature of the ques-
tions asked of him or other circumstances were matters not adduced on
this record. Thus, Cazares’ candid admissions concerning his affidavit
are reasons to credit, not discredit, his testimony.
Supporting this conclusion is Cazares’ admission his affidavit did
not include mention of his informing Love that shift leaders are not
supervisors and could vote in the representation election. Allah and
Love corroborated Cazares’ testimony on this point. Thus, the failure of
Cazares’ affidavit to include the breakroom reference as well as his
statement shift leaders are not supervisors do not provide grounds to
discredit his testimony.
On April 5, after Love consulted with Respondent’s corporate office
and learned the shift leaders were correct in their assertion they were
not supervisors and were eligible to vote in the representation election,
Love informed the shift leaders they were correct in their assertions.
Love did not retract, modify, or moderate any of his other comments.
9 Respondent’s arguments concerning Cazares’ credibility are unper-
suasive regarding this testimony. Love did not explicitly refute Caza-
res’ claim he made this statement. Respondent also requested an ad-
verse inference be drawn from the General Counsel’s failure to call
Martin as a witness. I find the request to be without merit. Martin was
equally available to all parties in this proceeding. There was no compel-
ling predicate advanced to warrant the taking of such an inference.
Q. Was there any discussion about how you or any of
the other two felt about the union?
A. I don’t’ recall.
This testimony is also consistent with Allah’s admittedly
credible evidence. It is highly probable Love, consistent with
his statement Respondent would not allow any union organiz-
ing activity in the store; said “[t]hey could do anything they
want outside, but not in the store,” and included the breakroom
as a no solicitation, no distribution area, in his response to Ca-
zares’ question. That Allah failed to mention this comment
does not discredit the testimony. Allah admittedly left before
the others and the comment may have been made when he was
absent or during the time he admittedly stopped listening.
I also credit Cazares’ testimony Love told them “that man-
agement did not tolerate unions and that we were supposed to
back up management, be against the union.” Cazares further
testified Love informed them “he left his previous job because
they were beginning to unionize and he didn’t’ want to tolerate
that.” Cazares testified on cross-examination as follows:

Q. And he told you that absolutely no union activity
would be tolerated, correct?
A. Correct.
Q. And that you should put a stop to it absolutely if
you saw it?
A. To report it and put a stop to it, yes.
Q. And he said employees should not be passing out
union materials on the floor, correct?
A. Correct.

Love’s testimony is not credited unless it is believably cor-
roborated or constitutes an admission against Respondent’s
interests. He did not appear to be open and forthright. He ap-
peared unduly nervous. He admitted to not recalling if he made
many of the statements attributed to him by Cazares and Allah.
On occasion he attempted to volunteer information and cast his
responses in a light most favorable to Respondent’s cause
rather than replying directly to a question.
It is undisputed Respondent has a valid no-solicitation rule in
its employee handbook and there is no evidence it was dispar-
ately applied. There was no evidence concerning solicitation
and distribution of any other materials or matters in the break-
room. The amended complaint does not claim Respondent had
or implemented an unlawful no-solicitation rule.
While Cazares admitted to being very active in the union orga-
nizing campaign, the nature and extent of the other shift leaders
involvement in the campaign was not clearly presented. Thus, I
find, at the time of this meeting, the employee attendees were not
open union activists. Moreover, Respondent does not claim, and
there is no basis to find Love’s actions in admitting his error in
considering the shift leaders supervisors constituted mitigation.
There is no basis to conclude Respondent, by Love or other repre-
sentatives, effectively repudiated Love’s coercive statements.
Passavant Memorial Area Hospital, 237 NLRB 138 (1978);
United States Service Industries, 324 NLRB 834 (1997).
C. April 15 Meeting
As discussed in greater detail below, Respondent was pur-
chased in 1996 by Boston Chicken and, on April 1, revised, as
here pertinent, its employees medical benefits to that offered Bos-
ton Chicken employees. The great majority of Respondent’s em-
ployees considered the revision as a diminution of benefits. On or
about April 9 or 10, Respondent notified most of its employees the
NOAH’S BAY AREA BAGELS, LLC 199
“old,” more favorable, benefits would be available to them. The
Telegraph store employees were informed such reinstated benefits
would not be available for them.
After this announcement about the benefits, Respondent con-
ducted the first in a series of mandatory employee meetings after
hours at the Telegraph store. The employees were informed the
meeting was to be conducted on April 15, between specific hours,
ending about 9 p.m. The meeting, admittedly related to the union
organizing campaign, was attended by the Telegraph store crew,
plus Mizes, Hennig, Martin, and Love.10 Mizes led the meeting
discussing exclusively union-related matters.
One of the attendees, Matias Wolansky, a shift leader, recalled
Mizes saying, while motioning to the ground11 “that if we do go
through the whole union process, when it came down to negotia-
tions, we were going to start from zero.” Wolansky also recalled
Mizes saying unionization “was going to affect our friendliness
and the ability to speak to management in an open way.” Mizes
made the comment about negotiations “starting from zero” at least
twice during the course of the meeting.12 At some point, Mizes
also informed the assemblage “[Y]ou can get the same, better or
worse. But, he said we’re going to start from zero.”13 Wolansky
appeared to be attempting to accurately recall Mizes’ statements
during this meeting and his testimony is credited.
Cazares also exhibited good recall of Mizes’s statements.
According to Cazares, whose testimony on this point I find
credible based on his open and direct mien:

[Mizes] spoke good about the union at first. He said that un-
ions were good at one time in history. And that it helped the
labor force, I guess the beginning work force. But then, the
union members have declined and the unions were recruiting
more members to get more dues. He said they didn’t’ have a
place for a union.
Noah’s was all a family and that the union had no
place in Noah’s, that it would ruin the relationship be-
tween the employees and the management if the union
would come in. And he said that we would have to start
from the ground up. Everything would have to be negoti-
ated, from pay to policies. He tapped the ground with his
hand. He said from the ground up. . . .

10 Love started the meeting by discussing a new coffee program. It
was not uncommon for Respondent to hold afterhour meetings to dis-
cuss store business with crew members.
11 Wolansky described Mizes’ gesture as, while “sitting down and
just kind of put his arm over the ground and said zero.”
12 Wolansky recalled Mizes indicated unions may be good for certain
facilities but not for Noah’s. Mizes discussed the history of Noah’s and
informed the employees:
[W]e were a friendly company. We did not need any representation
because they were open to the concern of the employees, and that they
had dealt with a union before for the San Leandro facility, and that
didn’t work out.
13 In an memorandum from Hennig to the Telegraph store crew members
dated May 28, 1997, in the penultimate section of the missive, the employ-
ees were informed, if Respondent and the Union agreed on a contract:
It is possible that you could end up with lower, better, or the same
wages and benefits than what you currently have. Everything will
be on the bargaining table, and there is no way to predict what
will happen.
Respondent argues this missive is consistent and similar to Mizes’
statements. I find this argument is unpersuasive. There is no reference
to a comment “bargaining will start from zero” or “from the ground,”
there is no basis to conclude Mizes closely followed this document as a
script, without embellishment.
He wanted to know how we felt about that—about being
in the union. A lot employees stated that since we were pur-
chased by Boston Chicken that it lost Noah’s touch and bene-
fit packages were changed. They were talking about different
pay raises and vacations. They were taking all this stuff away
from the employees. And with the union, we would have a
voice as a work force at Noah’s.

Cazares readily admitted Mizes said “Everything is up for
grabs” and in collective bargaining you could end up with more
or less or the same. The employees were paid by Respondent
for the time they spent at this meeting.
In contrast to the General Counsel’s witnesses who clearly
recalled Mizes’ statements at this meeting, Respondent called
Martin, who admittedly did not have a clear recollection of
Mizes’ statements, engaged in surmise, and relied to some ex-
tent on written notes14 rather than memory. In addition to ad-
mitting to poor recall, I noted she volunteered information;
appeared to be testifying based on coaching rather than recall;
and, key information was elicited through the device of leading
questions. She admitted Mizes said “everything will start from
the beginning, from the ground.” After making this statement,
according to Martin, Mizes then said “that bargaining would
always result in getting something better, worse or the same.”
Martin claims Mizes relied to some extent on a script. The
record is not convincing Mizes closely followed the script or
that the statements in question were read from or based on the
script. Martin could not recall which portions Mizes read and
which he made extemporaneously. The script does provide:

If the union wins the election, the only thing that will happen
is that Noah’s and the union rep. will sit down and bargain in
good faith on wages, hours and working conditions. We don’t
start from where we are . . . we start at ground zero, with a
clean slate . . . some things could be better, some could be the
same, some could be worse than they are right now. [Empha-
sis in original.]

The script has the dates April 15 and 17. The reason for the
date April 17 on the script was not explained. Martin does not
know if the copy introduced in evidence had been revised sub-
sequent to the April 15 meeting. Accordingly, I find the docu-
ment had not been shown to be probative of what Mizes actu-
ally said during the meeting; it may have been revised subse-
quent to the meeting.
Love recalled Mizes, several times during the meeting, made
the following statement:

[Mizes] said negotiations start from ground zero, and that you
could end up with more or you could end up with less than
what you have now, more than what you have now, or the
same with what you have now.

About 15 minutes after the meeting was scheduled to end,
Allah informed one or more attendees that he had to leave, got
his bicycle and started to leave. Love ran after him and they had
14 Her notes do not contain any reference to the Mizes statements at
issue in this proceeding. The notes merely reflect the statements made
by some of the employees during the meeting. Martin admitted her
notes did not help in refreshing her recollection of what Mizes said
during this meeting. Another reason I find Martin is not a reliable wit-
ness is she appeared to be less than forthright. For example, she denied
reviewing her notes prior to testifying. Only after further cross-
examination did she admit to going over her notes earlier in the week of
her testimony with Respondent’s counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
a discussion on the sidewalk. Love and Allah then entered the
store and Allah said he could not believe Love was going to
write him up for leaving. Mizes or Hennig asked if the meeting
was to end at 9 p.m. and when informed this was correct, em-
ployees who wished to were given permission to leave. Some
employees left and others stayed for a question and answer
period. Martin admitted at that juncture, the meting was no
longer mandatory.
As the employees were leaving, Joshua Smith,15 a counter-
person and trainer, was handing out union literature from a
position just inside the door of the store.16 Martin and Love
admitted Smith was not disrupting the meeting. Love admitted
these actions occurred when the employees were free to leave.
Smith did hand out union materials to those employees who
were leaving while the other crew members were participating
in the meeting. After finishing his distribution of union litera-
ture, Smith and Love had a discussion outside of the store. Ac-
cording to Smith:

We were just having miscellaneous conversation. And some
separate conversation came up regarding warnings. And
[Love] caught me separate from the rest of the people there,
and said speaking of warnings, I need to warn you about pass-
ing out union literature.17

Smith did not receive a written warning or any other disci-
pline as a result of this incident. Smith understood he was being
warned by Love even though he characterized their conversa-
tion as “friendly.”
D. Benefits
In January 1996 Noah’s Bay Area Bagels was purchased by
Boston Chicken, Inc. The purchaser then combined Noah’s
with Boston Chicken’s other bagel franchises creating Einstein
Noah’s Bagel Corporation (Einstein). At the time of the pur-
chase, Noah’s had an established health benefit package (the
Prudential plan). The Prudential plan offered the employees the
choice of a preferred provider plan or a health maintenance

15 Smith convincingly corroborated Wolansky and Cazares. He testi-
fied in a direct manner appearing to give complete unembellished an-
swers. According to Smith, Mizes discussed:
The history, the third-party influence of a union. After
that, I just remember response time. . . .
[Mizes] said that—the thing that stuck out most clearly in my
mind is that he said we would start from zero and he touched the
floor with his hand. He was in a sitting position and indicated we
would start from scratch or ground zero in our negotiations.
That’s one thing I do recall out of that.
Smith readily admitted Mizes mentioned that with collective bar-
gaining, the employees could end up with more, less or the same bene-
fits and other terms and conditions of employment. Smith was clear that
Mizes emphasized starting from ground zero when he discussed “the
outcome of a contract negotiation.” I also find it highly probable that an
employee who was an open and admitted union activist at the time of
this meeting would tend to recall these statements.
16 Martin admitted Smith was distributing material “As the meeting
was adjourning.” She did not know if the employees were still on the
clock at the time. There was no documentary evidence concerning
when these employees punched out, or if, in fact, they did punch out.
There was no explanation advanced for the failure to adduce timecards
or other business records in support of Respondent’s claim some if not
all of the Telegraph store employees were still on the clock at the time
Smith was distributing union literature.
17 Cazares overheard Love inform Smith that he was not allowed to
pass out any information in the store.
organization. Under the Prudential plan, after a 90-day waiting
period, all employees who worked more than 30 hours a week
were eligible for either plan.
In January 1997 Respondent’s parent company decided to
terminate the Prudential plan and implement what was called
the General American benefits plan. The General American
plan was the benefit program in use for Boston Chicken and
certain other Einstein shops. The change in benefit plans was
announced to Respondent’s employees on February 5, with an
effective date of April 1.
The General American plan was generally considered by Re-
spondent’s employees to be much less desirable. The General
American plan increased the number of hours required for eli-
gibility to 35 per week, increased the waiting period and elimi-
nated domestic partner coverage. Respondent’s managers began
almost immediately after the announcement to seek restoration
of the benefits offered in the Prudential Plan. Mizes set a target
date of June 30 as his goal for getting Einstein’s to make the
change for all of its employees. There is no evidence Respon-
dent informed its employees of these efforts.
Once the General American plan was implemented, the Re-
spondent’s employees dissatisfaction was evident; one plant
completely boycotted the plan. On April 10 Mizes and Gallegos
persuaded their superiors to implement benefits similar to the
Prudential plan. Without determining whether Prudential Insur-
ance Company would provide such coverage, or if it could
economically obtain similar coverage from Prudential or an-
other provider, on April 11, Respondent announced to its em-
ployees, except those in the East Bay stores, that the Prudential
plan would be restored.
For the East Bay stores, Respondent distributed a letter
which provided:

Noah’s has decided to offer a choice of benefit plans
by reinstating its prior medical, dental and vacation plans
to Noah’s crew members. Unfortunately, we are not able
to make this change for those crew members who may be
covered by a pending National Labor Relations Board
case. We have sought to restore benefits for some time,
and we are now able to announce the change.
We regret that no change can be made for you at this
time. We have been advised by our lawyer that any
changes for crew members who may be involved in the
NLRB case would create legal risk at this time. The law is
quite clear that we are not allowed to change wages, bene-
fits or do anything else what could be considered “buying”
your votes in a possible election.
Please understand that we have taken this action solely
to avoid any risk of improper influence on any upcoming
election. we will give you further information as soon as
our situation with the NLRB case becomes clear.
The Regional Director for Region 32 ordered an election at the
Telegraph store only and thereafter, on May 19 Respondent
reinstated the Prudential benefits at all the East Bay district
stores except the Telegraph store.
III. ANALYSIS AND CONCLUSIONS
A. April 4 Statements
Respondent argues Love’s statements to the attending shift
leaders on April 4 were not coercive because they were the
“chief Union organizers” and purposely drew Love into the
discussion. Respondent’s brief implicitly admits Love ques-
NOAH’S BAY AREA BAGELS, LLC 201
tioned employees about their union activities and the activities
of others and instructed employees to stop other employees
from engaging in union activities. As found above, Love’s
statements to these employees the following day that he was in
error concerning their supervisory status at the time he made
these statements does not constitute effective repudiation.
Only Cazares was admittedly active in the union organizing
campaign. There was no evidence Love knew of the involve-
ment of any of the shift leaders in the union organizing cam-
paign. The fact he did not refer to any such involvement by
individuals he believed to be supervisors, buttresses this con-
clusion. Moreover, the testimony does not support Respon-
dent’s argument the shift leaders entrapped Love or otherwise
induced him to make the offending statements.
The record establishes the employees were called into a manda-
tory meeting with their manager in his office, informed of the
union organizing effort, Love’s dislike of unions and working in
unionized stores, and Love persisted in continuing the meeting
after the employees informed him they were not supervisors. I
credit the testimony he informed the shift leaders they were to
report all union organizing activity in the store, stop such activity,
at all times and regardless of where in the store such activity oc-
curred. Love signaled these employees management was adverse
to unionization and was watching the employees protected activ-
ity, which tended to interfere with that activity.
Love admitted instructing the shift leaders to stop any union
organizing activity they observed occurring in the store. Re-
spondent did not claim Cazares was in error when he asserted
there is a breakroom. Love did not carve out an exception to his
instructions to the shift leaders concerning the breakroom or
any nonwork area. He inquired if any of the shift leaders were
asked to fill out union authorization cards and to stop such so-
licitation and report any union activity to him.
An employer’s request that employees spy on the activities
of other employees “constitute[s] an impermissible interference
with the employees . . . Section 7 rights and violates Section
8(a)(1) of the Act.” TRW-United Greenfield Div. v. NLRB, 637
F.2d 410, 418 (5th Cir. 1981). I conclude Love informed the
shift leaders that Respondent would not tolerate unionizing
activity. Respondent proffered no legitimate basis for the ques-
tioning, communicated no lawful reasons for the questioning
,and did not offer the employees any assurance against repri-
sals. Thus, Love’s statements and instructions were more than
mere requests the shift leaders report observable union activi-
ties, they were instructed to stop it and embark on an intelli-
gence gathering program, all to discourage employees from
seeking union representation.
Love’s statements to the shift leaders were clearly coercive,
directing them to actively prevent unionization, a state he told
them he abhored, in violation of Section 8(a)(1) of the Act.
Belcher Towing Co., 265 NLRB 1258 (1982). Love’s belief the
shift leaders were supervisors at the time he made these com-
ments is not an exculpatory factor. Save-On Drugs, 253 NLRB
816, 820–821 (1980), enfd. 728 F.2d 1254 (9th Cir. 1984); and
Shelby Memorial Home, 305 NLRB 910 fn. 2 (1991). (“An
employer acts at its peril when it takes steps calculated to chill
the exercise of Sec. 7 rights by individuals who may later be
found to be under the protection of the Act.”)
B. Events of April 15
1. Mizes’ statements
I find Mizes, on April 15, informed the employees bargain-
ing would start from zero and/or from the ground, repeated the
comment and emphasized it with gestures. I also find Mizes
informed the employees collective bargaining could result in
their receiving less, more or the same wages and other terms
and conditions of employment. As was noted in Belcher Tow-
ing Co., supra, 265 NLRB at 1268:
Neither the Employer, the Union, nor the employees are guar-
anteed their hearts’ desire in bargaining about wages, hours,
and conditions of employment. Collective bargaining is a
process, not a panacea, and an employer may properly point
out the hazards to its employees. Bargaining may start from
‘scratch’ or ‘zero’ and the employees may be so informed by
their employer lawfully prior to an election. Wagner Indus-
trial Products Co., 170 NLRB 1413 (1968); Host Interna-
tional Inn, 195 NLRB 348 (1972); provided the employer’s
statements to its employees are not made in a coercive context
or in such a manner as to convey to its employees a threat that
they will be deprived of existing benefits if they select a union
to represent them. Coach & Equipment Sales Corp., 228
NLRB 440 (1977); Madison Kipp Co., 240 NLRB 879
(1979); and South Hills Health System, 240 NLRB 69, 76
(1979).
In the circumstances of this case, I find Mizes’ comments to
employees during a captive audience speech to be a coercive
threat they will receive less favorable wages or other terms and
conditions of employment if they selected the Union as their
collective-bargaining representative. Mizes’ statement left em-
ployees with the impression seeking representation resulted in a
threat of the loss of existing benefits. After implementing a less
favorable benefit plan, Respondent revealed on April 11, that
all but the East Bay stores employees would have the Pruden-
tial Plan benefits restored. Respondent tied the restoration of
benefits to freedom from union organizing based on advice all
employees potentially involved in the NLRB case “cannot be
given the benefits because it would “create a legal risk.”
The Board in Noah’s New York Bagels, Inc., 324 NLRB 266
(1997), found a similar statement by one of Respondent’s rep-
resentative violative of the Act; citing Taylor-Dunn Mfg. Co.,
252 NLRB 799, 800 (1980), enfd. 810 F.2d 638 (9th Cir. 1982),
as follows:

It is well established that “bargaining from ground zero”
or “bargaining from scratch” statements by employer repre-
sentatives violate Section 8(a)(1) of the Act if, in context,
they reasonably could be understood by employees as a
threat of loss of existing benefits and leave employees with
the impression that what they may ultimately receive de-
pends upon what the union can induce the employer to re-
store. On the other hand, such statements are not violative of
the Act when other communications make it clear that any
reduction in wages or benefits will occur only as a result of
the normal give and take of negotiations.

Mizes’ statements to the Telegraph store employees several
days after announcing they would not have their prior benefits
reinstated gave the impression they will be “deprived of existing
benefits if they select a union to represent them.” Belcher Towing
Co., supra. Mizes did later indicate negotiations could result in
greater as well as lesser benefits, but these later statements did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
cure Mizes’ statement bargaining would “start from ground zero”
which could reasonable be construed as indicating the Telegraph
store employees benefits would be less than the other employees,
a situation which could only be rectified if they rejected the Union
or the Union after negotiations was able to restore them.
Moreover, less than 2 weeks earlier, Love informed the three
shift leaders they were to advance Respondent’s antiunion orga-
nizing campaign, interrogated them about their own and other
employees’ union activities, and instructed them to stop other
employees who were engaging in union activities in the store. By
Mizes’ conduct, Respondent violated Section 8(a)(1) of the Act.
2. Love’s warning to Smith
I find Love’s comments to Smith concerning distributing un-
ion material inside the public area of the store did not violate
the Act. This allegation of the complaint should be dismissed.
Respondent had a valid no-solicitation, no-distribution rule in
its employee handbook. Smith clearly was standing inside the
store when he was distributing union material. The employees
were apparently being paid for their attendance at the meeting,
so they were on the clock. There is no evidence the rule was
disparately applied to Smith. Smith was not disciplined, only
warned he was violating a valid company rule.
I find the General Counsel’s argument that the meeting was
posted to end at a certain time and so the employees were free
to leave requiring a finding that the meeting was over, to be
without merit. Some employees chose to remain and continue
meeting with Respondent’s representatives. The undisputed
testimony is those employees who chose to stay were compen-
sated for this time. Therefore, the efficacy of the no-
solicitation/no-distribution rule was not abrogated by the an-
nouncement employees who wanted to leave the meeting could.
All employees did not leave, thus, the Company meeting con-
tinued and those employees who remained were on the clock.
In this situation, Love’s comments to Smith were not violative
of the Act.
I also find the record fails to establish Love unlawfully inter-
rogated any employee on this date. I therefore, recommend the
allegations Respondent, by Love, violated the Act by threaten-
ing discipline and interrogating an employee be dismissed.
C. Benefits
The General Counsel argues it was unlawful for Respondent
to withhold benefits from the Telegraph store employees during
the pendency of the representation petition because its actions
were motivated by the pending election. NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964); and Progressive Supermarkets,
259 NLRB 512 (1980).
Respondent argues since the benefit was not announced or
scheduled at the time the representation petition was filed, it
was obligated to avoid the appearance of election impropriety
the granting of such benefits to the Telegraph store employees
would raise, particularly where, as here, Respondent informs
the employees of the reason for its decision is “to avoid the
appearance of election impropriety.” Martin Industries, 290
NLRB 857 (1988); Uarco Inc., 169 NLRB 1153 (1968).
In Noah’s New York Bagels, supra at 271, 272, Administra-
tive Law Judge Pollack reviewed the law relating to granting
such benefits, as follows:

It is well settled that, in deciding whether to grant
benefits while a representation election is pending, an em-
ployer should act as if no union were in the picture. Centre
Engineering, 253 NLRB 419, 421 (1980). The Board’s
general Rule is that an employer’s legal duty during a
preelection campaign period is to proceed with the grant-
ing of benefits, just as it would have done had the union
not been on the scene. See, e.g., American Telecommuni-
cations Corp., 249 NLRB 1135 (1980). Thus, if an em-
ployer withholds wage increases or accrued benefits be-
cause of union activities, and so advises employees, it vio-
lates the Act. Liberty House Nursing home, 236 NLRB 50
(1978). However, where employees are told expected
benefits are to be deferred pending the outcome of an elec-
tion in order to avoid the appearance of election interfer-
ence, the Board will not find a violation. Truss-Span Co.,
236 NLRB 50 (1978).
. . . .
The Board does not automatically find the granting of benefits
during an organizational campaign to be unlawful, but it pre-
sumes that such action will be objectionable “unless the Em-
ployer establishes that the timing of the action was governed
by factors other than the pendency of the election.” American
Sunroof Corp., 248 NLRB 748 (1980); Honolulu Sporting
Goods, 239 NLRB 1277 (1979). However, the withholding of
new benefits from employees who are awaiting a Board elec-
tion also violates the Act if the employees otherwise would
have been granted the increases in the normal course of the
employer’s business. Progressive Supermarkets, 259 NLRB
512 (1981). An employer is obligated to give any increase or
benefit decided upon, or any regular, normal increase that
would come due during the critical period, but should not put
into effect any increase not already decided upon before the
union came on the scene. The more prudent course, the one
least likely to result in a violation, is to refrain from giving the
wage increases during that period, for at the very least the
General Counsel would have the burden of showing the nor-
malcy of the increase, or that it had been decided upon prior
to the advent of the union. Liberty Telephone Communica-
tions, 204 NLRB 317, 322 (1973).

As held in Florida Steel Corp., 220 NLRB 1201, 1203
(1975):

The Board and courts have long held that an employer
withholding pay raises and/or benefits from employees
who are awaiting the holding of a Board election, or have
chosen a union as their bargaining representative, has vio-
lated the Act if the employees otherwise would have been
granted the pay raises and/or benefits in the normal course
of the employers business. Dan Howard Mfg. Co. & Dan
Howard Sportswear, Inc., 158 NLRB 805 (1966); and
McCormick Longmedow Stone Co., Inc., 158 NLRB 1237
(1966). [Remainder of citations omitted.]

The Board found in Groves Truck & Trailer, 281 NLRB
1194, 1195 (1985): “If, as here, in the normal course of events,
a change of benefits would have occurred, the mere pendency
of a question concerning representative does not impede the
implementation of the change and an employer who withholds
such a change due to the union’s presence violates the Act.
Montgomery Ward & Co., 225 NLRB 112 (1976).” Cf. H.S.M.
Machine Works, 284 NLRB 1482, 1483 (1987).
While it is clear Respondent did not regularly restore bene-
fits, it must establish the legitimacy of its business reason. Re-
spondent’s reasons for the announcement during the pendency
of a representation petition is determinative of the legality of its
NOAH’S BAY AREA BAGELS, LLC 203
action. The Supreme Court found “that the conferral of em-
ployee benefits while a representation election is pending, for
the purpose of inducing employees to vote against the union”
interfere with those employees rights protected by Section 7 of
the Act to organize. NLRB v. Exchange Parts Co., 375 U.S.
405, 409 (1964).
I find Respondent would have bestowed the Prudential bene-
fits on the Telegraph store employees but for the pendency of
the representation election. I further find Respondent failed to
demonstrate the need to implement the change during this time.
While Gallegos admitted the prospect of such a quick restora-
tion of the Prudential benefits was unlikely. There was no dem-
onstration any personnel or other business problems occurred
as a result of the elimination of the Prudential benefits. Re-
spondent, by Gallegos, admitted just a few days after the repre-
sentation petition was filed, he related the employees unhappi-
ness with the new benefit package as part of the discussion
where he and Mizes tried to convince their superiors of the
need to restore those benefits.
In these circumstances, I find Respondent decided “whether
or not to grant improvements in wages and other benefits in the
same manner as it would absent the presence of the union.”
McCormick Longmeadow Stone Co., 158 NLRB 1237, 1241
(1966); quoting Champion Pneumatic Machinery Co., 152
NLRB 300, 306–307 (1965). If the employer withheld these
benefits from the Telegraph store employees or established by
the testimony of the decision makers who approved the change,
including the timing of the announcement for all the other em-
ployees that such change was not influenced by the presence of
the union at the East Bay store , then Respondent’s action
would not violate the Act. Wintex Knitting Mills, Inc., 216
NLRB 1058, 1059 (1975). Respondent failed to establish it had
to announce the change for all but the Telegraph store employ-
ees about 6 days after the Union filed its representation petition.
Respondent failed to advance any compelling reasons for
immediate action absent the pending representation election.
While its San Leandro plant employees boycotted the new
health plan, there was no evidence such action had any eco-
nomic or other effect warranting immediate action. As noted in
Kinney Drugs, 314 NLRB 296, 304 (1994): “In sum, no reason
is evident as to why this discretionary act was not deferred for
the relatively brief period that would have prevented undue
advantage in the impending election.” Here, the employer
clearly altered its course because of the presence of the Union.
Otherwise, if the grant of benefits was for reasons unrelated to
union organization, the grant would clearly be consonant with
the Act and Respondent could have conferred the benefits upon
the Telegraph store employees without fear of violating the
Act. McCormick Longmeadow Stone Co., supra.
Supporting this conclusion is the precipitous nature of Respon-
dent’s actions. Having received approval, Respondent immediately
announced its plans to restore the Prudential benefits for all em-
ployees except those it considered involved in the pending repre-
sentation election. This announcement was made prior to contact-
ing Prudential or any other insurance company to insure these
benefits could be offered. Respondent also did not know the cost of
the announced change, thus, economic exigencies were not even
shown to be a consideration. Further buttressing this conclusion is
the admission of Gallegos that during the conversation in which
Respondent decided to restore the Prudential benefits, the nacient
union organizing drive was discussed.
Unlike the previously cited Noah’s decision, Respondent was
not deferring a previously announced action, here, there was no
expected benefit. Compare Uarco Inc., 169 NLRB 1153 (1968);
Noah’s New York Bagels, supra. The restoration of the Prudential
benefits was not clearly established by Respondent to be the with-
holding of an expected benefit. On the contrary, it was a benefit
whose planned conferral was announced prior to ascertaining
whether it could be economically and timely acquired.
The Board noted in Baltimore Catering Co., 148 NLRB 970,
973 (1964), and has followed to date:

In the absence of evidence demonstrating that the timing
of the announcement of changes in benefits was governed by
factors other than the pendency of the election, the Board
will regard interference with employee freedom of choice as
the motivating factor. The burden of establishing a justifiable
motive remains with the Employer.

The record requires the conclusion the General Counsel es-
tablished the timing of the benefit was governed by the pending
election and but for such election, the Telegraph store employ-
ees would have received the restored benefits and the normalcy
of the Respondent’s actions was placed into question without
convincing refutation. Moreover, I find the employer failed to
meet its burden it was following established practice or other
business exigencies required the immediate announcement of
the restoration of the Prudential benefits prior to the union elec-
tion. Respondent did not demonstrate it had an established
practice of immediately announcing any or all planNed benefit
changes prior to determining their availability or cost. I find “it
was the arrival of the Union that jolted Respondent [Noah’s]
into prompt action.” Employer Management Services, 324
NLRB 1051 (1997). In these circumstances, I conclude Re-
spondent violated Section 8(a)(3) and (1) of the Act by with-
holding the Prudential benefits from the Telegraph store em-
ployees pending the union election.
CONCLUSIONS OF LAW
1. The Respondent, Noah’s Pacific, LLC f/k/a Noah’s Bay
Area Bagels, LLC a/k/a Noah’s Bagels, is, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food & Commercial Workers Union,
Local 870, United Food & Commercial Workers International
Union, AFL–CIO–CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent, in violation of Section 8(a)(1) of the Act,
has interfered with, restrained, and coerced its employees in the
exercise of their rights under Section 7 of the Act by question-
ing employees about their union activities and the union activi-
ties of other employees; instructing employees to stop the union
activities of other employees; and, by threatening employees
that if they selected the Union as their collective-bargaining
representative, bargaining would “start at zero” and/or “from
the ground,” under circumstances which inferred employees
would lose benefits if they supported the Union.
4. By announcing it was withholding medical and other benefits
from the Telegraph store employees during the pendency of a
representation election for the purpose of discouraging union sup-
port and inducing the employees to vote against the Union, Re-
spondent has interfered with the employees’ exercise of Section 7
rights in violation of Section 8(a)(3) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
5. The above violations are unfair labor practices affecting
commerce within the meaning of the Act.
6. In all other respects alleged in the complaint, the General
Counsel has failed to establish Respondent violated the Act.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices, I recommend it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
Having discriminatorily denied benefits to its Telegraph
store employees, Respondent must make whole the Telegraph
store employees for any and all losses of earning and other
rights, benefits, and privileges of employment they may have
suffered by reason of Respondent’s discrimination against
them, in the manner set forth in Ogle Protection Service, 283
NLRB 682 (1970) with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended18
ORDER
The Respondent, Noah’s Bay Area Babels, LLC, Berkeley,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withholding medical and other benefits that were not ex-
pected or reasonably scheduled from the Telegraph store em-
ployees during the pendency of a representation election for the
purpose of discouraging union support and inducing the em-
ployees to vote against the Union.
(b) Interfering with, restraining, and coercing its employees
in the exercise of their rights under Section 7 of the Act by
questioning employees about their union activities and the un-
ion activities of other employees; instructing employees to stop
the union activities of other employees; and, by threatening
employees that if they selected the Union as their collective-
bargaining representative, bargaining would “start at zero”
and/or “from the ground,” under circumstances which inferred
employees would lose benefits if they supported the Union.
(c) In any other like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of this Order, offer the Telegraph store
unit employees the same medical and other benefits granted its
other counterpersons, cooks, and other staff in similar positions
or, if those benefits no longer exist, substantially equivalent
benefits, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole for any
loss of earning and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of this decision.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the nature and extent of the remedy due under the terms
of this order.
(c) Within 14 days after service by the Regional Director,
post at its Telegraph store, copies of the attached notice marked
“Appendix.”19 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained by it for 60 consecutive days there-
after in conspicuous places, including all placeS wHere notices
to employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by other material. In the event that, during
the pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current and former employees employed by
the Respondent at any time since February 2, 1994.
(d) Within 21 days after service by the Regional Director,
file with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint al-
legations not specifically found here, be dismissed.
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”