Noah's New York Bagels

National Labor Relations Board - Board Decisions

Aug 15, 1997

324 N.L.R.B. 266 (N.L.R.B. 1997)

266
324 NLRB No. 42
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to the judge’s failure to make
a specific credibility resolution and finding with regard to the com-
plaint’s allegation that Respondent’s president, Bill Hughson, unlaw-
fully interrogated employees Carlos Pacheco and Carlos Martinez by
asking them if they had made ‘‘the right decision’’ about how to
vote in the election. However, in his decision the judge noted that
Hughson’s account of what he said to Pacheco and Martinez was
corroborated by John McCraw, Respondent’s director of manufactur-
ing. The judge also specifically discredited any testimony that was
inconsistent with his findings. Since the judge did not find an unlaw-
ful interrogation, we infer that he discredited the testimony of em-
ployee Pacheco that would have supported the allegation.
The Charging Party has also excepted to the judge’s failure to find
that Hughson created the impression of surveillance of employees’
protected activities by telling Pacheco that he knew how certain
drivers were going to vote and that if Pacheco and Martinez voted
against the Union, the Employer would win the election. Here again,
we infer from the judge’s failure to find the violation, and his dis-
crediting of any testimony inconsistent with his findings, that he dis-
credited Pacheco’s testimony in support of this allegation.
2 The Respondent and the Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 All subsequent dates are 1994.
5 The judge did not find an unlawful interrogation. His failure to
do so is apparently based on a finding that Hughson did not ask
Killingsworth whether he had made up his mind regarding the elec-
tion. In this regard, we note that Hughson denied asking the ques-
tion, and the judge said that he discredited testimony inconsistent
with his conclusions. We also note that it is neither illogical nor un-
reasonable to credit a part of a conversation and to discredit another
part.
6 We find, based on the judge’s credibility determination, that
Hughson initially said to Killingsworth that wages ‘‘would’’ revert
to a minimum.
Noah’s New York Bagels, Inc. and Teamsters Local
853, International Brotherhood of Teamsters,
AFL–CIO. Cases 32–CA–14257, 32–CA–14473,
32–CA–14551, and 32–RC–3914
August 15, 1997
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
On October 30, 1995, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respond-
ent and the Charging Party filed exceptions and sup-
porting briefs, and the General Counsel filed cross-ex-
ceptions and a supporting brief. The General Counsel
filed a brief in answer to the Respondent’s exceptions,
and the Respondent filed an opposition to both the
Charging Party’s exceptions and the General Counsel’s
cross-exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions as modified.3
The facts are set forth more fully in the judge’s de-
cision. Briefly, the Respondent manufactures and sells
bagels. During July 1994,4 the Union obtained author-
ization cards from a majority of the Respondent’s driv-
ers and filed a representation petition on July 27. The
complaint alleged that the Respondent engaged in var-
ious illegal activities during the campaign. The judge
found that some of the activity violated Section 8(a)(1)
and dismissed other complaint allegations. We agree
with the judge’s findings, except as follows.
1. In mid-August, the Respondent’s president, Bill
Hughson, accompanied van driver George Killings-
worth on his delivery route. According to Killings-
worth, Hughson asked Killingsworth, inter alia, if he
had made up his mind regarding the upcoming union
vote, whether he had any concerns with the company,
and about Killingsworth’s interest in working in Los
Angeles.
The judge found that the Respondent violated Sec-
tion 8(a)(1) by asking Killingsworth about his concerns
and implying that the Respondent would remedy them
and by raising the possibility that Killingsworth could
work for the Respondent in Los Angeles. We agree
with those findings.5
Hughson and Killingsworth also discussed the nego-
tiation process. The credited testimony shows that
Hughson stated, inter alia, that wages ‘‘would’’ revert
back to a minimum. Hughson then said that wages
were a result of negotiations and could end up higher,
lower, or the same after negotiations.6 The judge found
that these statements by Hughson did not violate
8(a)(1) because he explained to Killingsworth that, as
a result of negotiations, wages could go up, down, or
remain the same. The Charging Party excepts, and we
find merit in the exception.
The standard for determining whether statements of
this type violate Section 8(a)(1) of the Act is set out
in 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’’ state-
ments by employer representatives violate Section
8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of
loss of existing benefits and leave employees with
the impression that what they may ultimately re-
ceive depends upon 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 result of
the normal give and take of negotiations.
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267NOAH’S NEW YORK BAGELS
Applying this standard to the facts here, we find that
Hughson’s statement indicated that benefits ‘‘would
be’’ reduced and thus could reasonably be understood
as a threat of loss of existing benefits. Admittedly,
Hughson followed up this statement to Killingsworth
by telling him that wages were a result of negotiations,
and that neither party could promise what the results
of negotiations would be, and that wages could be
higher, lower, or the same after negotiations. We find,
however, that these statements did not cure Hughson’s
initial statement that wages ‘‘would’’ revert to a mini-
mum. The statement overall can reasonably be under-
stood to say that wages would revert to a minimum at
least until negotiations were concluded and then could
be raised, lowered, or remain the same. Accordingly,
we find that Hughson’s comments violated Section
8(a)(1).
2. On September 29, the day before the election,
President Hughson gave a speech at a captive audience
meeting for the drivers. The General Counsel alleged
that the following portion of Hughson’s speech vio-
lated Section 8(a)(1) because it promised to grant ben-
efits if the employees rejected the Union:
Noah’s [B]agels has a very exciting future, and
I hope very much that we will be able to work
hand-in-hand to make it a successful future for all
of us. Through our rapid growth, we’ve clearly
made some mistakes. It’s disappointing that we
had to hear about our mistakes in this way. How-
ever, I feel strongly that the best way to overcome
our mistakes is for us to work together, without
the intervention of a third party that costs all of
us money yet is not concerned about our well-
being. A third party that, despite its costs to both
me and you, carries with it no guarantee of the
things that are important to us all: job security,
fair treatment, good wages and benefits, and a
warm friendly work environment.
Please vote to give us a second chance to show
what we can do. If we don’t meet your expecta-
tions, the Teamsters will be there—they’ll be just
as happy to take your dues and initiation fees later
as they are now.
The judge agreed with the General Counsel’s argu-
ments and found an 8(a)(1) violation. The Respondent
excepts, and we find merit in the Respondent’s excep-
tion.
In National Micronetics, 277 NLRB 993 (1985), the
Board found no violation where the employer con-
fessed that it had neglected matters in the past and
asked for a second chance to make things better. That
was the essence of Respondent’s speech here. As in
National Micronetics, the Respondent did not make
any specific promise that any particular matter would
be improved. As the Board there explained: ‘‘General-
ized expressions of this type, asking for ‘another
chance’ or ‘more time,’ have been held to be within
the limits of permissible campaign propaganda.’’
Therefore, we will dismiss this allegation.
AMENDED ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Noah’s New York Bagels, Inc., San Leandro, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph.
‘‘(d) Telling employees that during negotiations
wages would revert to a minimum.’’
2. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Within 14 days after service by the Region,
post at its facility in San Leandro, California, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director
for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since July 27, 1994.
‘‘(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
DIRECTION OF SECOND ELECTION
IT IS FURTHER DIRECTED that Case 32–RC–3914 is
severed and remanded to the Regional Director for Re-
gion 32 for the purpose of conducting a new election
at such time as he deems appropriate.
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268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The credibility resolutions herein have been derived from a re-
view of the entire testimonial record and exhibits, with due regard
for the logic of probability, the demeanor of the witnesses, and the
teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
As to those witnesses testifying in contradiction to the findings here-
in, their testimony has been discredited, either as having been in
conflict with credited documentary or testimonial evidence or be-
cause it was in and of itself incredible and unworthy of belief.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT solicit grievances from employees and
impliedly promise to improve working conditions in
order to cause employees to become disaffected with
the Union.
WE WILL NOT promise employees loans, transfers, or
other benefits in order to discourage union activities.
WE WILL NOT discriminatorily enforce a rule against
the wearing of union buttons.
WE WILL NOT tell employees that their wages would
revert to a minimum during contract negotiations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of any
rights guaranteed you by Section 7 of the Act.
NOAH’S NEW YORK BAGELS, INC.
Gary M. Connaughton, Esq., for the General Counsel.
Robert G. Hulteng and Robert Leinwand, Esqs. (Littler
Mendelsohn, Fastiff, Tichy & Mathiason), of San Fran-
cisco, California, for Respondent-Employer.
Andrew Baker, Esq. (Beeson, Tayer & Bodine), of San Fran-
cisco, California, for Union-Petitioner.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Oakland, California, on May 8 through 12,
1995. On October 6, 1994, Teamsters Local 853, Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union)
filed the charge in Case 32–CA–14257 alleging that Noah’s
New York Bagels, Inc. (Respondent or the Employer), com-
mitted certain violations of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act). The Union filed addi-
tional charges in Case 32–CA–14473 on January 18, 1995,
and in Case 32–CA–14551 on February 22, 1995. On March
31, 1995, the Regional Director for Region 32 of the Na-
tional Labor Relations Board (the Board) issued a consoli-
dated complaint and notice of hearing against Respondent al-
leging that Respondent violated Section 8(a)(5), (3), and (1)
of the Act. Respondent filed a timely answer to the consoli-
dated complaint, denying all wrongdoing.
On July 27, 1994, the Union filed a petition in Case 32–
RC–3914 seeking to represent Respondent’s wholesale and
retail delivery drivers then employed at Respondent’s
Emeryville facility. During the pendency of the petition, Re-
spondent moved its production and distribution facility to
San Leandro, California. An election was held on September
30, 1994. The results of the election were seven votes cast
for representation by the Union and nine votes against rep-
resentation. There was also one challenged ballot. The Union
filed timely objections to the election. On January 27, 1995,
the Regional Director issued a Report and Recommendations
on Objections and Notice of Hearing. The hearing on the
Union’s objections was consolidated with the unfair labor
practices hearing.
All parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses1 and, having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a California corporation with offices and a
principal place of business located in San Leandro, Califor-
nia, where it is engaged in the manufacture and sale of ba-
gels and associated food items in both the wholesale and re-
tail markets in California. During the previous calendar year,
Respondent derived gross revenues in excess of $500,000.
During the same time period, Respondent purchased and re-
ceived goods and products valued in excess of $5000 that
originated from points outside the State of California. Ac-
cordingly, Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
During July 1994, the Union obtained union authorization
cards from a majority of Respondent’s wholesale and retail
delivery employees. As stated earlier, on July 27, 1994, the
Union filed its representational petition. The complaint al-
leges that during the union campaign, Respondent through its
agents solicited employee grievances, promised employees
increased benefits, instructed union adherents to remove their
union T-shirts and buttons, and required employees to sign
a document agreeing to Respondent’s nonunion policy. Fur-
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269NOAH’S NEW YORK BAGELS
2 Respondent’s wholesale drivers drove vans and delivered to gro-
cery stores, coffeeshops, and restaurants. The retail drivers delivered
to Respondent’s retail stores and drove large tractor trailers.
ther, the General Counsel seeks a bargaining order to remedy
the alleged unfair labor practices. Finally, the General Coun-
sel contends that Respondent violated Section 8(a)(5) of the
Act by making certain unilateral changes after refusing to
recognize and bargain with the Union. Respondent denies
that it violated the Act. Further, Respondent argues that a
bargaining order remedy is not appropriate under the facts of
this case.
In the representation case, the issues are whether Respond-
ent interfered with the election by engaging in the alleged
unfair labor practices and whether Respondent interfered
with the election by holding a party celebrating the opening
of its new facility on the day of the representation election.
B. Facts and Preliminary Conclusions
1. The organizing campaign
Respondent’s drivers began their organizing campaign in
July 1994. On July 13, six of Respondent’s wholesale drivers
met at a hotel in Berkeley, California, with Rome Aloise, a
representative of the Union. At this meeting, Aloise obtained
signed union authorization cards from six employees. Aloise
gave blank authorization cards to employees LaTonya (Latti)
Foster and Justine Jimenez-Dehn to distribute to employees
who did not attend the meeting. Between July 13 and 24,
Foster and Jimenez-Dehn obtained five other signed author-
ization cards, which cards were delivered to Aloise. On July
25, Aloise sent a letter to Bill Hughson, Respondent’s presi-
dent, advising the Employer that the Union represented a ma-
jority of the drivers and requesting that the Employer recog-
nize and bargain with the Union. As stated earlier, the peti-
tion was filed on July 27. Approximately 8 days later, Aloise
was informed in a telephone conversation that Respondent
would not voluntarily recognize the Union but would await
a Board-conducted election. During the time between the fil-
ing of the petition and the refusal to recognize the Union,
two additional drivers signed union authorization cards. The
authorization cards state as follows:
Authorization for representation under, the National
Labor Relations Act, I the undersigned employee of
[Respondent] authorize Teamsters Local 853 to rep-
resent me in negotiations for better working conditions
and wages. This authorization supersedes any similar
authority previously given to any person or organiza-
tion.
The appropriate bargaining unit was all full-time and regu-
lar part-time distribution and delivery drivers and pickers
employed by the Employer at its San Leandro, California fa-
cility; excluding all other employees, guards, and supervisors
as defined in the Act. There were approximately 18 employ-
ees in the bargaining unit.
2. The alleged solicitation of grievances
Respondent received a copy of the representation petition
on July 27. Shortly thereafter, on August 3, Respondent’s su-
pervisors conducted a mandatory employee meeting. All
wholesale driver employees were required to attend.2 The
meeting was held in response to the Union’s representation
petition. Bill Hughson, Respondent’s president did most of
the speaking for Respondent. Hughson began by stating that
Respondent had received a copy of the Union’s petition from
the Board. He stated that he was disappointed by the petition
and that the petition meant that Respondent managers had
messed up as managers and as human beings. Hughson as-
serted that he had been to training about what he could and
could not do during the campaign. According to employees
LaTonya (Latti) Foster and Justine Jimenez-Dehn, Hughson
said that he wanted to know what problems the drivers were
having with the Employer. A number of drivers spoke about
various problems. One driver complained about disciplinary
warnings and others complained that Respondent’s policies
were not clearly defined. Hughson said that if he had come
to the employer as an outsider, he might feel that a union
was needed and that he could see why the drivers were hav-
ing problems. Hughson said he had been concentrating on
the retail business but would now pay more attention to the
wholesale side of the business. He stated that there would be
changes and that he would do his best to make sure the prob-
lems were resolved. Hughson emphasized that the Employer
had an open door policy and that employees could come and
speak to him. The Employer had, in fact, an open door pol-
icy in effect since it began operations in 1989. The open
door policy was included in the employee handbook in effect
at the time the organizing drive began.
Hughson testified that he began the meeting by telling em-
ployees that he had received the representation petition from
the NLRB. Hughson said he was disappointed that the driv-
ers felt they needed union representation and that if the driv-
ers felt that way, management must have ‘‘screwed up.’’ He
said in his opinion management was responsive to the em-
ployees’ needs and that the employees and management
could work together without the need for a third party.
Hughson then responded to questions from employees. Both
Hughson and Doug Troy, vice president of operations, deny
that Hughson asked employees what their concerns were or
promised to attempt to resolve them. Hughson and Troy both
testified that Hughson reiterated Respondent’s longstanding
open door policy. Hughson and Troy had both been coun-
seled not to make any threats or promises to employees dur-
ing the campaign.
On or about August 10, Hughson held another meeting for
the wholesale delivery drivers. At this meeting, some office
and managerial staff were introduced to the employees. Ac-
cording to employee, Latti Foster, Hughson asked employees
about their concerns and said he wanted to address them.
Hughson again emphasized his longstanding open door pol-
icy. Hughson and Troy deny that Hughson asked employees
about their concerns or promised to resolve problems.
The General Counsel contends that by telling the drivers
that he wanted to know what their problems were and, there-
after, promising to do his best to see that the problems were
resolved, Hughson solicited grievances and promised to re-
solve them in violation of Section 8(a)(1) of the Act. It is
well established that when an employer institutes a new prac-
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270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although Killingsworth had not previously indicated that he was
a union supporter, during his conversations with Hughson he was
quite open in his support for the Union.
tice of soliciting employee grievances during a union organi-
zational campaign, ‘‘there is a compelling inference that he
is implicitly promising to correct those inquiries and likewise
urging on his employees that the combined program of in-
quiry and correction will make union representation unneces-
sary.’’ Embassy Suites Resort, 309 NLRB 1313, 1316
(1992); Reliance Electric Co., 191 NLRB 44, 46 (1971).
Here, Respondent had a prior open door policy and Hughson
lawfully reminded employees of that policy. His statements
that Respondent was responsive to employee needs and that
Respondent and the employees could work together without
a third party are lawful. National Micronetics, 277 NLRB
993 (1985); Alterman Transport Lines, 308 NLRB 1282
(1992). However, Hughson questioned employees about their
problems and promised to do his best to resolve such prob-
lems. I find that by such conduct Hughson unlawfully made
implied promises in violation of Section 8(a)(1) of the Act.
3. Hughson’s ride with Killingsworth
During the middle of August, Hughson accompanied driv-
er George Killingsworth on Killingsworth’s route. Killings-
worth testified that Hughson asked Killingsworth if he had
made up his mind regarding the upcoming election. Hughson
said that while the Employer could not make promises during
the campaign, the Union was not under the same constraints.
Hughson asked Killingsworth about his concerns.3 This
prompted a long discussion by Killingsworth about problems
such as job security, assignment of overtime, and scheduled
days off. He discussed at length recent problems employees
had about being required to work overtime. Killingsworth
said that he would gladly work overtime but did not like
being forced to work overtime. Killingsworth also spoke at
length about the lack of clarity in Respondent’s wage sched-
ule. Killingsworth said that when he was hired he was told
that after a year he would be making $12 per hour but that
he had been with the company over a year and was not yet
earning $12 per hour. Killingsworth stated that the wage
schedule should be in writing and Hughson agreed.
According to Killingsworth, during their drive together,
Hughson said that he had heard that Killingsworth had ex-
pressed an interest in driving in Los Angeles when Respond-
ent opened its new retail stores in that area. Killingsworth
said that he was interested if he was offered a comparable
job and comparable hours. Hughson said that Respondent
was planning to open three retail stores in the Los Angeles
area but would not, at least initially, have a production facil-
ity in Southern California. Bagels would be shipped from the
San Leandro facility to the Los Angeles stores. Killingsworth
responded that he would be interested in such a route.
Hughson said that after the stores were established there
might be a possibility for employment for Killingsworth and
that Hughson would keep him informed of the prospects.
According to Killingsworth, Hughson said that if the
Union won the election, the pay and benefits that drivers
were presently receiving ‘‘would’’ or ‘‘could’’ revert to
square one, to a minimum, and there would be a long period
of negotiations, as long as 2 years, before employees would
know whether they would go back to what they had been
making before the Union got in. Hughson also told
Killingsworth that if the Union won the election, Respondent
would no longer be able to reward employees on the basis
of performance, but only on the basis of seniority. According
to Hughson he said that the Union would make such a de-
mand in negotiations. Hughson told Killingsworth that Re-
spondent could not distribute the new personnel manual dur-
ing the preelection period.
Hughson denied asking Killingsworth about his problems
with the Company. Hughson denied that he ever told
Killingsworth that during negotiations wages would revert
back to square one or a minimum. Based on Killingsworth’s
notes, written shortly after the conversation, I find that
Hughson said that wages would revert back to a minimum.
However, Hughson also told Killingsworth that wages were
a result of negotiations and that neither the Employer nor the
Union could promise results of negotiations. He said wages
could end up higher, lower, or the same after negotiations.
Hughson testified that Killingsworth raised the subject of
transferring to Los Angeles and that he made no promises re-
garding work in Los Angeles.
A few days later, Hughson gave Killingsworth a typed
copy of the wage schedule for Respondent’s drivers. Accord-
ing to Killingsworth, Hughson said that he was sorry that the
pay levels were so low but that Respondent could not raise
the wage levels during the election campaign. Hughson de-
nied that he apologized for low pay levels or indicated that
Respondent intended to raise pay levels. According to
Hughson, he simply handed the wage schedule to
Killingsworth and stated, ‘‘You wondered where you stood
on the wage schedule, here it is.’’
I find that Hughson asked Killingsworth about his con-
cerns and implied that Respondent would remedy those con-
cerns. I further find that by raising the possibility that
Killingsworth could work for Respondent in Los Angeles in
the context of a day spent discussing the Union, Hughson
implied, and Killingsworth would reasonably infer, that the
transfer was linked to favorable action in the upcoming elec-
tion. I find that Respondent impliedly promised favorable ac-
tion on such a job transfer in order to influence Killings-
worth’s vote in the upcoming election. I find no violation in
Hughson statements that wages could revert to a minimum
because Hughson explained that as a result of negotiations
wages could could go up, down or remain the same. See
Histacount Corp., 278 NLRB 681 (1986); Computer Periph-
erals, 215 NLRB 293 (1974).
4. Hughson’s ride with Jimenez-Dehn
On or about August 10, Hughson accompanied employee
Justine Jimenez-Dehn on her driving route. According to Ji-
menez-Dehn, Hughson asked what were her problems with
the Company. She answered that there had been a high turn-
over in management, that Respondent’s policies were not
clearly defined and that she did not feel secure about her fu-
ture with the Employer. Hughson mentioned that he had
learned that someone in management had told employees
never to go to the management offices and that Hughson
wanted employees to know that they could come to the of-
fices and speak to him. During this ride, Jimenez-Dehn and
Hughson discussed the possibility of an incentive plan for the
wholesale drivers. Jimenez-Dehn mentioned a conversation
she had with a former manager. Hughson said that
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271NOAH’S NEW YORK BAGELS
‘‘he couldn’t do anything about’’ such a plan during the
union campaign. He said that ‘‘he couldn’t make any prom-
ises.’’ Hughson said he would be thinking about the prob-
lems that Jimenez-Dehn raised and would do his best to try
to solve them. Hughson said he hoped that Jimenez-Dehn
would give the Employer a second chance.
Hughson denied asking Jimenez-Dehn about her problems
with the Company and promising to resolve such problems.
Hughson testified that he told her that he couldn’t make any
threats, interrogate employees, make any promises, or engage
in surveillance.
I find that Respondent violated the Act by asking Jimenez-
Dehn about her problems with Respondent and impliedly
promising to remedy those problems or grievances.
5. The new employee handbook
On or about August 12, Respondent distributed a new em-
ployee handbook to its production employees. Due to the
pending representation petition in the drivers’ bargaining
unit, the handbook was not distributed to the drivers. Re-
spondent instead distributed a letter to the drivers explaining
that the new handbook was not being distributed to drivers
because Respondent could not change existing benefits dur-
ing the election campaign. A day later, Foster and Jimenez-
Dehn asked Hughson why the drivers had not received the
handbook. According to Foster and Jimenez-Dehn, Hughson
said that he had been informed by his lawyers that because
the handbook contained benefits that had not been previously
announced to the drivers, he could not distribute the hand-
book to the drivers. He said there was a similar package, in-
cluding raises and vacation benefits, for the drivers but that
Respondent could not give it to the drivers because it might
be deemed to be an election campaign bribe.
Hughson testified that the discussion involved the hand-
book and not a wage increase. According to Hughson, he
told Foster and Jimenez-Dehn that because the handbook
contained modifications to benefits that had not been pre-
viously discussed with employees, he had been advised that
it was not legal or proper to introduce the handbook at that
time. I find Hughson’s version of this conversation to be the
most trustworthy. First, Respondent was considering raising
the wages of the retail drivers but not an across-the-board
wage increase. Respondent was not considering raising the
wages of van drivers such as Foster and Jimenez-Dehn. Sec-
ond, Hughson’s version of the conversion seems more con-
sistent with the legal advice he had just received. Most im-
portant, his version of the conversation is consistent with the
memorandum he had issued the previous day. That letter
stated that because the new handbook included changes in
benefits that had not been announced prior to the petition,
the Respondent was withholding the handbook in an attempt
to ‘‘follow the law.’’
As mentioned above, on or about August 12, Respondent
distributed its new employee handbook to its production and
administrative employees at the Emeryville facility while at
the same time withholding the handbook from the distribu-
tion employees. Respondent had been working on a new
handbook in early 1994. When the representation petition
was filed, the handbook was still in draft form. Holidays and
vacation were among the policies that were not finalized
when the petition was filed. Although employees were aware
that Respondent was working on a new handbook, the specif-
ics of the handbook had not been announced.
When the new handbook was completed on August 12,
Respondent decided not to distribute the handbook to the
employees in the bargaining unit because the new benefits in
the handbook had not been previously announced to the em-
ployees. Respondent withheld issuance of the handbook to
the unit employees in an attempt to avoid unfair labor prac-
tices. The Employer distributed a letter explaining that the
handbook was withheld to avoid the appearance of vote buy-
ing and to comply with the Federal labor law. The new
handbook was distributed to the bargaining unit employees in
January 1995, after objections to the election had been filed
and had been set for hearing.
It is well settled that, in deciding whether to grant benefits
while a representation election is pending, an employer
should act as if no union were in the picture. Centre Engi-
neering, 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 granting of benefits,
just as it would have done had the union not been on the
scene. See, e.g., American Telecommunications Corp., 249
NLRB 1135 (1980). Thus, if an employer withholds wage in-
creases or accrued benefits because of union activities, and
so advises employees, it violates the Act. Liberty House
Nursing Home, 236 NLRB 50 (1978). However, where em-
ployees are told expected benefits are to be deferred pending
the outcome of an election in order to avoid the appearance
of election interference, the Board will not find a violation.
Truss-Span Co., 236 NLRB 50 (1978).
Applying these principles to the facts of the instant case,
I find that Respondent informed the employees, at the time
it withheld the handbook, that the sole reason for its deferral
of the benefits was to avoid the appearance that it was at-
tempting to unlawfully affect the representation election. Re-
spondent acted consistently with its expressed reasons. Thus,
I find the evidence establishes that the sole reason for the de-
ferral of the benefits was to avoid the appearance of impro-
priety. Accordingly, I find that Respondent did not violate
the Act in deferring the granting of these benefits nor did
Respondent unlawfully attribute the deferral to the Union.
Centre Engineering, supra.
6. Withholding of wage increases
On or about August 14, Respondent granted wage in-
creases for its production employees. As with the distribution
of the handbook, Respondent did not grant a wage increase
to its drivers.
During July 1994, Troy conducted a wage survey of sev-
eral local businesses with similar employee classifications.
This survey indicated that Respondent was not paying a com-
petitive wage to its production employees and to its retail
drivers and driver assistants. The survey indicated that the
rate paid to the van drivers (the wholesale drivers) was com-
petitive. Thus, Troy proposed a new wage schedule in July
for comments by Hughson and John McCraw, director of
manufacturing. McCraw recommended several changes in
Troy’s proposed wage schedule. On or about August 14, the
new wage schedule for production employees was imple-
mented and a copy posted at the Emeryville facility. The
production employees received a $1-an-hour raise. However,
due to the pending representation petition Respondent did not
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272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
implement a new wage schedule for the drivers. A wage
schedule for drivers had not been finalized when the petition
was filed. Respondent ceased work on this schedule after the
petition was filed because it had no set past practice of grant-
ing wage increases and was concerned that the granting of
such an increase would be presumed to be an unfair labor
practice. In January 1995, Respondent conducted another
wage survey for its driver employees and in February 1995,
granted a wage increase based on that wage survey.
As stated earlier, in deciding whether to grant benefits
while a representation election is pending, an employer
should act as if no union were in the picture. Centre Engi-
neering, supra. The Board does not automatically find the
granting of benefits during an organizational campaign to be
unlawful, but it presumes that such action will be objection-
able ‘‘unless the Employer 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 election also violates the Act if
the employees otherwise would have been granted the in-
creases in the normal course of the employer’s business. Pro-
gressive Supermarkets, 259 NLRB 512 (1981). An employer
is obligated to give any increase or benefit decided on, 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 normalcy of the increase, or
that it had been decided on prior to the advent of the union.
Liberty Telephone Communications, 204 NLRB 317, 322
(1973).
In the instant case, Respondent had no practice of granting
periodic wage increases. While Respondent was in the proc-
ess of preparing a new wage schedule that process had not
been completed or decided on when the petition was filed.
Thus, believing that a wage increase at that time would be
presumed to be an unfair labor practice, Respondent took the
prudent course and suspended action on a new wage sched-
ule. Accordingly, I find that Respondent did not violate the
Act by postponing implementation of a new wage schedule
for its drivers. American Mirror, 269 NLRB 1091 (1984);
Great Atlantic & Pacific Tea Co., 192 NLRB 645 (1971).
7. Acknowledgment of receipt for the handbook
As stated earlier on August 12, Respondent distributed its
new handbook to its production employees. The General
Counsel contends that by requiring employees to sign a re-
ceipt for the handbook, Respondent was forcing employees
to agree to an antiunion policy under penalty of discipline.
Section 4 of the handbook entitled Unions reads as fol-
lows:
At Noah’s Bagels we believe that unions are not
necessary. We believe this for many reasons[.]
First, there is no reason why you should have to pay
union initiation fees, union dues, and union assessments
for what you already have. Noah’s Bagels has never
laid employees off in the past, and at this time there
is no reason we foresee that we should have to do so
in the future. Noah’s Bagels has never reduced wage
rates in the past, and at this time there is no reason we
foresee that we should have to do so in the future.
Second, there is no reason why you or your family
should fear loss of income or job because of strikes or
other union-dictated activity.
Third, we believe that the best way to achieve results
is to work and communicate directly with each other
without the interference of third parties or unions. We
feel that Noah’s Bagels employees are able to speak for
themselves, and our management is committed to listen-
ing to you and being responsive to your needs.
The federal government gives employees the right to
organize and join unions. It also gives employees the
right to say ‘‘no’’ to union organizers and not join
unions. Remember, a union authorization card is a
power of attorney which gives a union the right to
speak and act for you.
If you should be asked to sign a union authorization
card, we are asking you to say ‘‘no.’’
The General Counsel does not contend that there is any-
thing unlawful in Respondent’s statement about unions.
However, the General Counsel contends that the statement
read with other sections of the handbook and particularly
with the receipt leads employees to believe that they would
be disciplined if they did not follow that policy.
The introduction to the handbook states, ‘‘We have put
this Handbook together to help you understand your job at
Noah’s. Please read it carefully, as you will be responsible
for its contents.’’ In another section entitled, ‘‘About This
Handbook’’ it states ‘‘[the handbook] is a summary of
Noah’s Bagels policies, benefits and work rules and how it
will affect you. Please read it carefully and learn its con-
tents.’’ The section entitled, ‘‘Receipt of Crew Member
Handbook’’ contains the statement, ‘‘This form is your con-
firmation that you have received this Handbook and that you
have read, understood, and will follow its contents.’’ In the
section entitled ‘‘Crew Member Policies, the handbook sets
forth a progressive discipline procedure for violations of Re-
spondent’s rules and policies. Finally the penultimate page of
the handbook entitled, ‘‘Receipt of Crew Member Hand-
book’’ contains the following paragraph:
I acknowledge that I have received a copy of the
Noah’s Bagels Emeryville/San Leandro Crew Hand-
book. I understand that it contains important informa-
tion on Company policies and on my privileges and du-
ties as a crew member. I understand and agree that it
is my responsibility to read and familiarize myself with
the policies and procedures in this handbook. I further
understand that the Company may change, rescind, add
to or revise any policies, benefits or practices described
in the handbook from time to time, in its sole and abso-
lute discretion, with or without prior notice.
After the handbook was distributed to production employ-
ees, Respondent required employees to sign the ‘‘Receipt’’
and return it for the Employer’s records. Respondent retained
all the signed receipts.
I find that the statements in the ‘‘Receipt of Crew Member
Handbook’’ refer to the policies expressed in the entire man-
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273NOAH’S NEW YORK BAGELS
4 Heck’s Inc., 293 NLRB 1111, 1119–1120 (1989); Matheson Fast
Freight, 297 NLRB 63 (1989); La Quinta Motor Inns, 293 NLRB
57 (1989; and Leather Center, 312 NLRB 521 (1993).
ual and do not exclude the ‘‘Unions’’ section that states the
Respondent’s antiunion position. In essence employees are
required to read and familiarize themselves with the policies
and procedures of the handbook.
I find the cases cited by the General Counsel to be distin-
guishable.4 In those cases the Board found that the employ-
ees were required to follow the policies in question and had
reason to believe that discipline would follow if the employ-
er’s antiunion policy were not followed. In this case, the Re-
spondent after stating its antiunion views declared that fed-
eral law gave employees the right to organize and join
unions. The policy merely asks employees not to sign union
cards. The plain reading of the ‘‘Unions’’ section is that the
choice of whether to join a union or not is the employee’s
and not Respondent’s. Further, the receipt signed by employ-
ees requires acknowledgment of the privileges and duties in
the handbook and responsibility for knowing Respondent’s
rules. However, there is no language in the receipt that im-
plies that employees would be disciplined for violating the
antiunion policy. Thus, I find nothing that changes the
‘‘Unions’’ section from a lawful expression of the Employ-
er’s views on unions to a prohibition of protected concerted
activities or union activities. In my view, the Employer’s
statement that the law gives employees the right to organize
and join unions distinguishes this case from those cited by
the General Counsel. Further, there is nothing in the receipt
itself that negates the statement of employee rights.
8. The alleged unlawful offer of a loan
On or about September 27, Hughson accompanied Christie
Gullixson, a wholesale driver, on her route. According to
Gullixson, Hughson said that before the ‘‘union stuff’’ start-
ed Respondent had a package of wages and benefits for the
drivers but because of the union campaign Respondent could
not put that package into effect. During this conversation,
Gullixson mentioned that she was having financial problems
and Hughson offered to personally lend her some money.
Gullixson responded that she would not be comfortable with
such an arrangement. Hughson said that he had personally
lent money to other employees.
Hughson admitted that after Gullixson talked about her
personal problems and financial problem he offered to loan
her money. In the past Hughson had made personal loans to
certain employees and so informed Gullixson. The record re-
veals that in the past Hughson and Noah Alper, Respondent’s
chairman of the board, had made seven separate personal
loans to employees ranging from $450 to $1900. Both
Hughson and Gullixson testified that the offer of a loan was
not linked to the upcoming election. Hughson testified that
he explained to Gullixson that he could not make threats or
promises, engage in surveillance, or interrogate employees.
According to Hughson, Gullixson raised the topic of wages
and he answered that the Employer was restricted by law
from discussing changes in wages or benefits.
I find the offer of a loan was impliedly linked to the union
campaign. Both Hughson and Gullixson knew that the pur-
pose of Hughson’s visit was to lawfully persuade the em-
ployee to vote against union representation. Although the
loan offer was not expressly linked to the representation elec-
tion, had Gullixson accepted the loan, she would have rea-
sonably felt obligated to Hughson at the time of the election.
Hughson explained to Gullixson that he was talking about a
personal loan and not a company loan. He further explained
that he had in the past made personal loans to employees.
The evidence shows that the topic was not raised in the con-
text of the union campaign but Hughson did not give
Gullixson any assurances that there were no strings attached
to the loan. Accordingly, I find that under the circumstances,
that Respondent offered a loan to Gullixson which reason-
ably tended to interfere with the election process.
9. Hughson’s preelection speech
On September 29, Respondent held a captive audience
meeting for the drivers. Both Alper and Hughson read from
prepared text and did not deviate from that material.
The General Counsel contends that the following portion
of Hughson’s speech was violative of Section 8(a)(1):
Noah’s bagels has a very exciting future, and I hope
very much that we will be able to work hand-in-hand
to make it a successful future for all of us. Through our
rapid growth, we’ve clearly made some mistakes. It’s
disappointing that we had to hear about our mistakes in
this way. However, I feel strongly that the best way to
overcome our mistakes is for us to work together, with-
out the intervention of a third party that costs all of us
money yet is not concerned about our well-being. A
third party that, despite its costs to both me and you,
carries with it no guarantee of the things that are impor-
tant to us all: job security, fair treatment, good wages
and benefits, and a warm friendly work environment.
Please vote to give us a second chance to show what
we can do. If we don’t meet your expectations, the
Teamsters will still be there-they’ll be just as happy to
take your dues and initiation fees later as they are now.
The General Counsel contends that by asking for a second
chance to rectify mistakes, Respondent was promising to
grant benefits if the employees rejected the Union. The Gen-
eral Counsel cites St. Francis Hospital, 263 NLRB 834, 841
fn. 5 (1982); Hubbard Regional Hospital, 232 NLRB 858,
879 (1977); Royal Petroleum Corp., 243 NLRB 508 (1979).
In the context of Respondent’s other statements that it would
attempt to resolve employee problems and the implied prom-
ises made to Gullixson and Killingsworth, I find that
Hughson impliedly promised to improve working conditions
in violation of Section 8(a)(1) of the Act.
10. Hughson’s ride with Pacheco
On the day of the election, September 30, Hughson ac-
companied van driver Carlos Pacheco on his route. Pacheco
testified that during their conversations that morning
Hughson asked him if he was going to vote for the Union
or for the Employer and that Hughson promised Pacheco job
security if he supported the Employer in the election.
Pacheco answered that he did not know how he was going
to vote.
Hughson testified that he first reviewed with Pacheco the
guidelines that prohibited threats, promises, interrogation, and
surveillance. Hughson then told Pacheco that it was impor-
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274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tant for the employee to vote. Hughson assured Pacheco that
this was a secret ballot election and that nobody would know
how Pacheco voted. Hughson denied asking how Pacheco
was going to vote. Hughson testified that Pacheco said his
job would be more secure with the Union. Hughson replied
that in his experience the best job security was a healthy suc-
cessful company. I find that Hughson’s account of this con-
versation is more reliable and I credit his testimony over that
of Pacheco.
Before returning to Respondent’s facility, Hughson and
Pacheco met John McCraw and driver Carlos Martinez for
lunch. After the meal was over but before they left the res-
taurant, Hughson brought up the subject of the election
scheduled for that afternoon. According to Pacheco, Hughson
said that he hoped the two drivers would give the Employer
a second chance and make the right decision. Hughson said
that the retail drivers were going to vote against the Union
and mentioned the names of certain drivers. Hughson stated
that if Pacheco and Martinez voted against the Union, the
Employer would win the election. As they were leaving the
restaurant, Pacheco asked if he could drive back with Mar-
tinez so that the two employees could discuss their decision.
Hughson agreed and he drove back to the facility with
McCraw while Martinez rode with Pacheco. After Martinez
and Pacheco arrived at the facility and began unloading the
vans, Hughson asked if the employees had made the right
decision and Martinez answered yes. Hughson thanked Mar-
tinez and shook his hand.
Hughson testified that he told Pacheco and Martinez that
several employees had told him that they planned to vote no.
He further reminded the employees that the bargaining unit
was not just the eight wholesale drivers but also included the
retail drivers. McCraw corroborated Hughson’s version of
this conversation by testifying that Hughson explained that
the bargaining unit included the retail drivers.
I find that Respondent did not promise Pacheco job secu-
rity as alleged in the complaint. I further find that Hughson
did not violate the Act by telling Pacheco that certain em-
ployees had told Hughson that they planned to vote ‘‘no’’ in
the election.
11. McCraw’s ride with Martinez
Prior to meeting Hughson and Pacheco for lunch on Sep-
tember 30, McCraw rode with Martinez on the driver’s route
in San Francisco. According to Martinez, McCraw ques-
tioned him about his problems with the Company and what
he did not like about the Company. Martinez responded that
he did not feel secure about his job, because he had received
an unfair warning. Later during the route, McCraw asked
Martinez to give the Company another chance. According to
Martinez, McCraw said that he hoped the drivers would give
the Company a second chance. Martinez said he would give
the Company a chance but that he did not think he was the
only employee who thought the Company should have an-
other chance.
McCraw testified that Martinez raised the subject of the
Union and the election. According to McCraw, Martinez was
open about his feelings on unions. McCraw said that he felt
a union was not in the best interests of the employees or the
Employer. McCraw said he hoped that the employees would
vote against the Union and would give the Employer a sec-
ond chance by voting against the Union. I credit McCraw’s
testimony and find that he did not unlawfully interrogate
Martinez or impliedly promise benefits in order to influence
Martinez’ vote in the election.
12. Lopez’ statements to employees
In early September, Respondent hired Patrick Lopez, a
self-employed labor consultant, to help with the election
campaign. Prior to the election Lopez held numerous meet-
ings with employees campaigning against union representa-
tion. The General Counsel contends that Lopez violated Sec-
tion 8(a)(1) of the Act by telling employees that if the Union
was voted in, negotiations would start from scratch, from
zero, and go from there and employees could end up after
negotiations with less than they had before the Union got in.
Lopez testified that he covered the subject of collective
bargaining at four meetings on September 21. Each meeting
began with the presentation of a video which was followed
by a question-and-answer session. The video concerned ne-
gotiations and reviewed the concept of good-faith bargaining.
According to Lopez, he told the employees that the parties
have an obligation to sit down and negotiate in good faith.
He said the parties submit proposals, exchange proposals,
and engage in a give-and-take process. Lopez denied using
the phrases ‘‘start from scratch’’ and ‘‘start from zero.’’ The
materials Lopez distributed which state, inter alia, ‘‘In fact
ALL current wages and benefits are subject to negotiations;
they can go up, go down or stay the same.’’ There was a
notice posted by Respondent, signed by Hughson, which
used the words ‘‘from scratch.’’ That notice stated in perti-
nent part, ‘‘This negotiation starts from scratch, with nothing
guaranteed. You could end up with more than you have
now, the same that you have now, or less than you have
now. [Emphasis in original.]’’ Under the circumstances, I
find that even if Lopez stated that negotiations started from
scratch, he made it clear that wages could go up, go down,
or remain the same. Accordingly, I find no violation has
been established. See Histacount Corp., 278 NLRB 681
(1986); Computer Peripherals, 215 NLRB 293 (1974).
13. Troy’s statements to Foster and Jimenez-Dehn
During September, Doug Troy, vice president of oper-
ations, had a conversation with Foster and Jimenez-Dehn
about the upcoming election. According to Jimenez-Dehn,
Troy said that although employees thought Respondent had
a lot of money, in fact Respondent had a lot of outstanding
loans. He mentioned that if a certain bagel operation opened
stores in the Bay Area it could adversely affect Respondent.
He added that even if the Union won the election, it did not
mean that wages would rise. He said bargaining would start
from zero wages and go from there. Troy said there would
be no guarantee of wage increases and employees could end
up with less than they had before.
Troy testified that this conversation was started by Foster
and Jimenez-Dehn. The two drivers asked Troy about the
growth in the retail business. Troy responded by saying that
Respondent wanted to expand rapidly and mentioned that a
competitor was expanding in the Pacific Northwest and that
Respondent wanted to be in position to withstand that com-
petition. Troy said that Respondent’s expansion was due to
an increased line of credit. Troy said he wanted to correct
something he had heard Jimenez-Dehn say on a radio show.
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275NOAH’S NEW YORK BAGELS
Jimenez-Dehn had said that certain drivers were disciplined
for not working overtime. Troy said the discipline had been
for insubordination and that her statement on the radio show
was incorrect. Troy testified that he stated that in negotia-
tions everything is on the table and at the conclusion of ne-
gotiations, the employees could have more, less or the same
as they presently had. I find Troy’s version of this conversa-
tion to be more accurate than that of Jimenez-Dehn. Accord-
ingly, I find no violation in his statement to the employees.
Histacount, supra; Jordan Marsh Stores Corp., 317 NLRB
460 (1995); Clark Equipment Co., 278 NLRB 498 (1986).
14. The prounion T-shirt and union buttons
On September 13, the first day that drivers began deliv-
eries from the new San Leandro facility, Foster had a con-
versation with Mark Knight, a supervisor. Foster was wear-
ing a prounion T-shirt and two union buttons. She was wear-
ing a Noah’s T-shirt as required by the Employer but her
shirt had the added phrase ‘‘If its not Union, its not Ko-
sher.’’ Knight told Foster that she could not wear the T-shirt
and to remove the buttons. Foster asked why and Knight re-
sponded ‘‘because [they are] against the company.’’ Knight
gave Foster another Noah’s T-shirt to wear. Foster told
Knight that both Troy and Hughson had seen her wearing the
T-shirt and that neither objected to the shirt. Knight insisted
that Foster change shirts. Foster changed shirts and also re-
moved the union buttons.
The General Counsel does not contend that there was any-
thing unlawful in Respondent’s policy against shirts mocking
Respondent’s kosher products. The Employer strictly ob-
serves the kosher laws. The word kosher is contained in the
Employer’s logo and is shown on the Noah’s T-shirt required
to be worn by the drivers.
Knight testified that he had received instructions from
Troy that employees were not to wear the defaced T-shirts.
Thus, when Knight observed Foster wearing such a T-shirt,
he instructed her that she could not wear the shirt on duty.
When Foster asked why, Knight responded that it was not
the proper uniform. Foster said that Hughson had allowed
her to wear it. Knight said that Hughson was not present and
that Foster could not wear the shirt. According to Knight, he
did not observe any union buttons. Knight denied saying that
Foster could not wear the shirt, because it was against the
Employer. The evidence shows that employees including
Foster were permitted to wear union buttons without inter-
ference. Further, employees were permitted to wear union
shirts before and after going on their routes.
It is well settled that absent some special circumstance,
such as maintenance of production and discipline, safety, or
preventing alienation of customers, employees have the right
to wear union insignia at work. See Republic Aviation Corp.
v. NLRB, 324 U.S. 793 (1945). Here, I find that Respond-
ent’s insistence that Foster not wear a shirt mocking its Ko-
sher policy was lawful. Knight lawfully enforced Respond-
ent’s policy requiring the wearing of company T-shirts. With
regard to the union buttons, I find that Knight unlawfully
prohibited Foster from wearing union buttons. Knight appar-
ently believed that the instruction not to wear the T-shirt also
applied to union buttons. However, this mistake, even if
made in good faith, unlawfully interfered with Foster’s right
to wear a union button at work. Meijer, Inc., 318 NLRB 50
(1995).
15. Managers accompany drivers on their routes
The General Counsel contends that Respondent violated
the Act by increasing the frequency that its managers accom-
panied drivers on their routes. Since 1989, when Respondent
was first established, its managers have accompanied drivers
on their delivery routes. This practice was developed to
allow the managers to become more familiar with the routes
and routines of the drivers. It is undisputed that during the
preelection period Respondent increased the frequency with
which its managers would accompany drivers. Respondent
admits that this was done to allow the managers an oppor-
tunity to communicate the Employer’s position on union rep-
resentation to the drivers. Due to the different schedules
worked by managers and drivers, accompanying drivers on
their routes was a more convenient way for the managers to
communicate individually with employees. The evidence in-
dicates that on two occasions where employees expressed a
preference to ride alone, the requests were honored without
being questioned.
The General Counsel contends that the high level position
of the managers, combined with the amount of time an em-
ployee was confined with the manager made this practice in-
herently coercive. The General Counsel cites Advance Waste
Systems, 306 NLRB 1020 (1992). That case involved coer-
cive interrogation and is not relevant to the question of
whether one-on-one conversations, not otherwise coercive,
are violative because the employer increased the frequency
of such conversations to campaign against union representa-
tion.
Respondent cites Livingston Shirt Corp., 107 NLRB 400
(1953), for the proposition that an employer may hold em-
ployee meetings on its property whenever and, however, it
pleases as long as the statements made at the meeting are
noncoercive:
It is conceded by everyone that Congress intended that
both employers and unions should be free to attempt by
speech or otherwise to influence and persuade employ-
ees in their ultimate choice, so long as the persuasion
is not violative of express provisions of the Act; and we
find nothing in the statute which even hints at any con-
gressional intent to restrict an employer in the use of
his own premises for the purpose of airing his views.
On the contrary, an employer’s premises are the natural
forum for him just as the union hall is the inviolable
forum for the union to assemble and address employ-
ees.
I find that, absent coercion, employers have the right to at-
tempt to persuade employees in their election choice. Here,
Respondent choose to speak to employees during their
routes, because such a procedure did not interfere with the
normal work hours of the managers and did not require the
employees to remain after work for meetings. The fact that
managers accompanied employees did not interfere with em-
ployee organizing acitivities because the employees were
otherwise alone in their trucks and would not be in contact
with other employees in any event. Further, I note that Re-
spondent did not accompany an employee when an objection
was made to such a ride. Thus, absent evidence of unlawful
statements made during the rides, I find no violation in the
fact that Respondent choose to campaign by accompanying
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276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 All motions inconsistent with this recommended order are hereby
denied. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
employees on their routes. Cf. Emery Worldwide, 309 NLRB
185, 186 (1992).
16. The representation proceeding
The Union filed an objection stating, ‘‘The Employer and
its agents provided employees with gifts and parties in order
to dissuade the employees from voting for union representa-
tion.’’ The objection is based on the fact that the Employer
held a party to celebrate the opening of its new facility in
San Leandro on the same date as the representation election.
The party began between 3 and 4 o’clock and ended about
7 p.m. The Employer has held such parties to celebrate the
opening of each of its stores. At this party food was served
and entertainment provided. In addition a raffle was held
with a TV and a stereo as prizes. The price of these prizes
were $250 and $110, respectively.
The evidence shows that the Employer has a past practice
of having parties at its facilities when new stores open and
when production milestones are met. In addition, seasonal
parties are held by Respondent. The party was open to all
employees at the San Leandro facility as well as Respond-
ent’s employees at its retail stores.
First, I find that the holding of the party was not unusual
but rather consistent with the Employer’s past practice. Sec-
ond, the party was for production, administrative, and retail
store employees in addition to the bargaining unit employees.
Finally, the value of the prizes did not involve a magnitude
that the Board would find coercive. In Sony Corp. of Amer-
ica, 313 NLRB 420 (1993), the Board overruled an objection
to an election based on raffle prizes of a TV and stereo cost-
ing more than the items here. The Board held that in the ab-
sence of evidence that the value of the election prizes was
so substantial as to coerce employees to interfere with the
electoral choice, the complaint allegation of a violation of
Section 8(a)(1) and the objections to the election should be
dismissed.
Having concluded that Respondent, between the date of
the petition and the date of the election, impliedly promised
to remedy employee grievances and promised a loan to an
employee and a transfer to another employee, and prohibited
an employee from wearing her union buttons, I find that Re-
spondent’s acts constitute objectionable conduct which inter-
fered with the free choice of employees in the election. Such
conduct constitutes grounds for setting aside the election.
American Safety Equipment, 234 NLRB 501 (1978); Dayton
Tire & Rubber, 234 NLRB 504 (1978). I, therefore, rec-
ommend that the election be set aside.
17. The bargaining order
In NLRB v. Gissel Packing Co., 395 U. S. 575 (1969), the
leading case on remedial bargaining orders, the United States
Supreme Court held:
(1) Even in the absence of a demand for recognition,
a bargaining order may issue if this is the only avail-
able effective remedy for unfair labor practices.
(2) Bargaining orders are clearly warranted in excep-
tional cases marked by outrageous and pervasive unfair
labor practices.
(3) Bargaining orders may be entered to remedy less-
er unfair labor practices that nonetheless tend to under-
mine majority strength and impede the election process.
If a union has achieved majority status and the possibil-
ity of erasing the effects of the unlawful conduct and
of ensuring a fair election through traditional remedies
is ‘‘slight,’’ a bargaining order may issue.
(4) Minor or less-extensive unfair labor practices that
have only a minimal effect on election machinery will
not support a bargaining order.
As a precondition to a bargaining order, the Board cur-
rently requires a showing that the union achieved majority
status in an appropriate bargaining unit at some relevant
time. Gourmet Foods, 270 NLRB 578 (1984). Respondent
questions the validity of the union authorization cards. How-
ever, I need not reach the issues raised by Respondent. As-
suming arguendo that the Union had obtained valid author-
ization cards from a majority of the employees in the bar-
gaining unit, I find that the General Counsel has not estab-
lished a sufficient basis to support a bargaining order rem-
edy.
Here I have dismissed most of the allegations of the Gen-
eral Counsel’s complaint. I have found only that Respondent
impliedly promised to remedy employee grievances, prom-
ised a loan and a transfer impliedly to interfere with the elec-
tion and mistakenly prohibited an employee from wearing
her union buttons on one occasion. I find that such unfair
labor practices fall into the category of minor or less exten-
sive unfair labor practices within the meaning of Gissel. Ac-
cordingly, I find that a bargaining order as an extraordinary
remedy is not appropriate in this case.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the purposes and policies of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by solic-
iting grievances and promising improved working conditions,
promising a loan, promising a transfer, and prohibiting an
employee from wearing union buttons.
4. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
5. By the conduct set forth above, Respondent has illegally
interfered with the representation election conducted by the
Board in Case 32–RC–3914.
Based on the above findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended5
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277NOAH’S NEW YORK BAGELS
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Noah’s New York Bagels, Inc., San
Leandro, California, its officers, agents, successors, and as-
signs shall
1. Cease and desist from
(a) Soliciting grievances from employees and impliedly
promising to rectify them in order to cause employees to be-
come disaffected with the Union.
(b) Promising employees loans or transfers in order to dis-
courage union activities.
(c) Discriminatorily enforcing a rule against the wearing of
union buttons.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of any rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in San Leandro, California, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of the
notice, in both Spanish and English, on forms provided by
the Regional Director for Region 32, after being signed by
a responsible representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure the notices are not altered, defaced, or
covered by other material.
(b) Notify the Regional Director, in writing, within 20
days from the date of the Order what steps Respondent has
taken to comply.
IT IS FURTHER ORDERED that the Regional Director for Re-
gion 32 shall set aside the representation election in Case
32–RC–3914 and supervise a rerun election.
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