Pennant Foods Co.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2007

34-CA-011385 (N.L.R.B. Sep. 17, 2007)

JD(ATL)–25–07
North Haven, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
PENNANT FOODS CO., A WHOLLY-OWNED
SUBSIDIARY OF CS BAKERY HOLDINGS, INC.,
A WHOLLY-OWNED SUBSIDIARY OF CHEF SOLUTIONS
HOLDINGS, LLC1
Case Nos. 34–CA–11385
and 34–CA–11417
34–CA–11504
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO
PENNANT FOODS CO., A WHOLLY-OWNED
SUBSIDIARY OF CS BAKERY HOLDINGS, INC.,
A WHOLLY-OWNED SUBSIDIARY OF CHEF SOLUTIONS
HOLDINGS, LLC,
Employer
and Case No. 34–RC–1925
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO
Petitioner
Jennifer Dease, Esq., & Margaret Lareau, Esq.,
for the General Counsel.
Gary Glaser, Esq., & Paul Galligan, Esq., of Seyfarth Shaw, LLP
for the Respondent-Employer.
Thomas W. Meiklejohn, Esq., of Livingston, Adler, Pulda
Meiklejohn & Kelly for the Charging Party-Petitioner.
DECISION
Statement of the Case
MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Hartford,
CT, over eight days between October 25, 2006 and January 10, 2007. The Charging
Party/Petitioner, International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, AFL-CIO (herein “the Union”), filed the initial charges in cases 34-CA-

1 As will be discussed, infra, I have amended the caption to delete “a Questor Company”
from the name of Respondent.
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11385 and 34-CA-11417 on January 9, 2006 and February 3, 2006, respectively, and amended
the charge in 34-CA-11417 on March 28 and April 28, 2006. A consolidated complaint based
upon these charges issued on April 28, 2006, alleging that the Respondent, Pennant Foods, a
wholly-owned subsidiary of CS Bakery Holdings, Inc, a wholly-owned subsidiary of Chef
Solutions Holdings, LLC, a Questor Company, violated Section 8(a)(1) of the Act through
statements made by several of its supervisors and managers during a pre-election campaign in
January, 2006. 2 The consolidated complaint also alleged that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to permit its employee Lee Mabry to return to work from
leave for a work-related injury on December 21, 2005 and again on April 10 because of his
activities on behalf of the Union. In connection with this allegation, the consolidated complaint
alleged that the Respondent discriminatorily relied upon a new light-duty policy and job
description that purportedly were formulated during Mabry’s absence. The Respondent filed its
answer to the consolidated complaint on May 15, denying that it committed the unfair labor
practices alleged in the complaint and asserting several affirmative defenses. The Respondent
also objected to the inclusion of “a Questor Company” in the Respondent’s name.
By Order dated May 22, the consolidated complaint was further consolidated with
objections that had been filed by the Union to the election conducted on January 20 in Case No.
34-RC-1925. The Petition in that case had been initially filed by the Union on October 22, 2001
and an election had been conducted on November 29, 2001, pursuant to a Decision and
Direction of Election issued by the Board’s Regional Director on November 14, 2001. The Union
had filed objections and unfair labor practice charges based on conduct preceding that election.
The election conducted on January 20 was a stipulated re-run election. As will be discussed in
more detail later, the Union’s objections that were set for hearing in the May 22 Report on
Objections included conduct alleged in the consolidated complaint as unfair labor practices
during the January pre-election period; conduct during the same period that was not alleged to
be an unfair labor practice; and conduct that had been the subject of unfair labor practice
charges that occurred during the period between the first election in 2001 and the notice of the
re-run election. Some of these earlier unfair labor practice charges had been settled and others
were litigated and resulted in the Board Order reported at 347 NLRB No. 41 (June 27, 2006).
The Board, in an Order dated August 23, after considering the Respondent’s exceptions to the
Objections Report, affirmed the Regional Director’s determination that a hearing on the Union’s
objections was warranted and remanded Case No. 34-RC-1925 for hearing.
On May 17, The Union filed the charge in Case No. 34-CA-11504, which was amended
on July 31. On August 3, a complaint issued in that case alleging that the Respondent, through
its Operations Manager Fred Macey, committed additional violations of Section 8(a)(1) of the
Act during the pre-election period in January 2006. On the same date, an order further
consolidating cases issued to consolidate Case 34-CA-11504 with the previously issued
consolidated complaint and objections report.3 The Respondent filed its answer to the new
complaint on August 17, again objecting to inclusion of “a Questor Company” in the caption and
denying that it committed the unfair labor practices alleged. The Respondent also asserted the
same affirmative defenses that had been raised in its answer to the original consolidated
complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union and the Respondent, I make

2 All dates are in 2006 unless otherwise noted.
3 The General Counsel amended the consolidated complaints at the hearing to seek special
remedies for the unfair labor practices alleged.
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the following
Findings of Fact
I. Jurisdiction
The Respondent, a corporation, manufactures frozen dough and other bakery products
at its facility in North Haven, Connecticut, where it annually purchases and receives goods
valued in excess of $50,000 directly from points located outside the State of Connecticut. The
Respondent admits4 and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
1. The Respondent’s name
As noted above, the complaints in the instant case alleged that the Respondent is “a
Questor Company”. Counsel for General Counsel stated at the hearing that Questor was the
only partner in Chef Solutions LLC, the parent company of Pennant Foods’ parent, CS Bakery
Holdings, Inc.5 She cited a leaflet distributed to employees during the January pre-election
campaign which identified Questor as a major shareholder of the company and referred to
support received from Questor in the Respondent’s efforts to remain competitive. The
Respondent, in its answers to the complaints, at the hearing, and in its brief has objected to
General Counsel’s inclusion of Questor in the definition of the Respondent. According to the
Respondent’s counsel, no evidence has been offered by General Counsel or the Charging Party
that would justify naming Questor a respondent.
The General Counsel’s position in this case differs from the position it took in the unfair
labor practice proceeding before another administrative law judge in November 2005. In that
case, the General Counsel stipulated that Questor was merely a shareholder of the Respondent
and amended the complaint to delete reference to Questor. Pennant Foods Co., 347 NLRB No.
41, ALJD fn. 1 (June 27, 2006). In the instant case, General Counsel has offered no evidence
that would link Questor, or any supervisor or agent of that entity, with the unfair labor practices
alleged to have been committed. More specifically, there is no evidence in this record that would
warrant a piercing of the corporate veil to impose liability for any of the alleged unfair labor
practices on any individual shareholder or limited liability partner. See White Oak Coal Co., 318
NLRB 732 (1995). Cf. A. J. Mechanical, 345 NLRB No. 22 (August 26, 2006), reversed in
pertinent part 481 F.3d 804 (D.C. Cir. 2007)
I find, based on the limited evidence in the record, that “Questor”, at most, was a
shareholder or owner of the Respondent’s parent company at the time the unfair labor practices

4 While admitting the commerce facts and conclusions, the Respondent continued to deny in
its answer that a Questor Company was properly included in the name of the Respondent.
5 The record reveals that CS Bakery Holdings and Chef Solutions are headquartered in
Schaumberg, IL and that management officials from that corporate headquarters participated in
the pre-election campaign in January.
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were allegedly committed.6 As such, it was not properly named a Respondent because there is
no evidence that Questor and the Respondent failed to maintain separate identities and that
adherence to the corporate structure in this case would “sanction a fraud, promote injustice, or
lead to evasion of the Respondent’s legal obligations.” White Oak Coal Co., supra. Nor is there
any evidence that would establish a single employer, alter ego, or joint employer relationship
between Questor and the Respondent. Accordingly, I have amended the caption to delete
Questor from the definition of the Respondent.
2. History Preceding the Re-Run Election
The Respondent manufactures frozen rolls and other bakery goods at the North Haven
facility involved in this proceeding. Subway Sandwich Shops is the Respondent’s main
customer. The Union has been engaged in a determined effort to represent a unit of the
Respondent’s production and maintenance employees in North Haven since September 2001.
At the time of the hearing in this case, there were approximately 143 employees in the unit. The
alleged discriminatee, Lee Mabry, has been involved in the Union’s organizing campaign from
the beginning. As part of its effort to organize the Respondent’s employees, the Union
embarked on a “corporate campaign” aimed at bringing public pressure on the Respondent to
recognize the Union. This campaign included visits by bargaining unit members and union
representatives to the corporate offices of the Respondent’s parent and shareholders, such as
Questor. In addition, the Union enlisted politicians to hold hearings to “investigate” the
Respondent’s treatment of its employees. There is no dispute that Mabry was prominent in this
campaign and, as the parties stipulated, was the “face” of the Union in the media.
As noted above, the Union filed a petition seeking to represent the Respondent’s
employees on October 22, 2001. An election was held on November 29, 2001, which the Union
lost by a vote of 99-63. The Union filed timely objections to the election as well as a number of
unfair labor practice charges. The charges were resolved through an informal settlement
agreement containing a non-admissions clause, approved by the Board’s regional director over
the Union’s objections, on December 12, 2003. It appears that the Union’s election objections
were resolved by a stipulation for a new election, which had been held in abeyance until the
Union filed a request to proceed in late December 2005. Within a year of the approval of the
settlement agreement, the Union filed additional charges which were resolved by execution of a
formal settlement stipulation on February 18, 2005, providing for entry of a Board Order with
enforcement by the Court of Appeals. The settlement stipulation also contained a non-
admissions clause. The Union again objected to the settlement, contending that the remedies
provided by the agreement were insufficient to dissipate the effects of the Respondent’s alleged
unfair labor practices. The Board’s decision approving the formal settlement over the Union’s
objections issued on January 10, 2006, shortly before the election at issue in this proceeding.7
At the hearing, I rejected General Counsel’s proffer of the informal settlement
agreement, the formal settlement stipulation and the order and judgment enforcing the formal
settlement on the grounds that the settlement of unfair labor practice charges where the
Respondent did not admit it had violated the Act was not relevant to determining whether the
Respondent violated the Act as alleged in the instant complaints, or whether the special

6 Evidence offered at the hearing indicates that Chef Solutions may have sold the assets of
Pennant Foods to another entity identified as Fresh Start Bakeries in October 2006, after the
unfair labor practices alleged here. Any question of liability on the part of any current owner to
remedy the violations found here can be resolved at the compliance stage of these proceedings.
7 The Court of Appeals entered its judgment enforcing the Board’s Order on February 8.
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remedies sought by the General Counsel in this case were warranted, or as proof of
objectionable conduct. I adhere to that ruling. See Sheet Metal Workers Local 28 (Astoria
Mechanical), 323 NLRB 204 (1997). However, I have taken administrative notice of the
documents for the purpose of establishing the procedural history leading up to the instant
proceeding. As I advised the parties when making my ruling at the hearing, if the General
Counsel or the Charging Party wished to rely on the conduct alleged in the earlier cases to
support the positions taken here, they would have to offer proof of the conduct and not simply
rely on the existence of the settlement agreements.8
While the formal settlement agreement was pending before the Board, the Union filed
additional unfair labor practice charges against the Respondent which led to issuance of a
consolidated complaint on August 31, 2005. That complaint went to trial before Administrative
Law Judge Joel Biblowitz in November 2005. Judge Biblowitz issued his decision on January
19, the day before the re-run election, finding that the Respondent violated Section 8(a)(1) of
the Act on May 24 and 25, 2005 by threatening unfair labor practice strikers with permanent
replacement if they refused to abandon a strike.9 Judge Biblowitz also found that the
Respondent violated Section 8(a)(1) and (3) of the Act by issuing written warnings to employee
Jack Toporovsky on May 9 and 12, 2005; by removing a laptop computer from the office where
Toporovsky worked and by removing telephones from the maintenance department on May 10,
2005; and by failing and refusing to reinstate Toporovsky and fellow maintenance employee
Gregory Borukhovich to their pre-strike positions since June 7, 2005. On June 27, 2006, the
Board adopted Judge Biblowitz’ decision in its entirety. Pennant Foods Co., 347 NLRB No. 41.
The Respondent’s campaign to convince its employees to vote against union
representation at the January 20 re-run election generated the current round of charges. The
Union again lost the election, by a vote of 84-54, and filed timely objections. The Union also
sought, as a remedy for the charges it filed, a Gissel bargaining order.10 The General Counsel,
while asking for special remedies in light of the history of the case, does not seek such a
remedy. At the hearing, I ruled that the Charging Party was precluded from seeking a bargaining
order because of the General Counsel’s conscious decision to refrain from seeking such a
remedy. See ATS Acquisition Corp., 321 NLRB 712, fn. 3 (1996).
B. Section 8(a)(1) Allegations
1. Case No. 34-CA-11504
The sole allegation in this complaint is that the Respondent, through Fred Macey, its
Operations Manager at the time,11 violated Section 8(a)(1) of the Act in December 2005 or
January 2006 by threatening employees with retaliation if they talked about the Union and
engaged in union activity, and prohibited employees from talking about the Union and engaging
in union activities. This allegation is based upon an incident involving Macey and former
employee Gustavo Caporal, who was the General Counsel’s sole witness in support of this
allegation. Caporal was terminated by the Respondent on May 4 for allegedly making false

8 The Charging Party did offer evidence with respect to two of the settled unfair labor
practices as part of its objections case.
9 Judge Biblowitz found that a strike engaged in from May 24 to June 6, 2005 by several of
the Respondent’s maintenance employees to protest discriminatory warnings issued to one of
them was an unfair labor practice strike.
10 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
11 Macey became Plant Director in July 2006 after Price left the company.
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entries in company records regarding the temperature of frozen dough being loaded onto trucks
for shipment. Caporal, in his testimony, disputed the Respondent’s claims against him,
suggesting that he may have been set up to be terminated. However, the allegations in this
charge relating to his discharge were dismissed by the regional office and not appealed by the
Union.
As to the specific allegation at issue, Caporal testified that, a few weeks before the
January 20 election, after he and other employees began campaigning for the Union, Macey
approached him as he was walking through the production area on his way back to the
warehouse after a break. Macey put his arm around Caporal and said, “Gustavo, you know me”,
to which Caporal responded affirmatively. Macey then said he did not want to get into an
argument with Caporal, he was just doing his job, but that he just wanted to tell Caporal that he
didn’t want Caporal talking with the people in production about the Union.12 Macey told Caporal
that he could do this on his breaks or during lunch. Caporal said, “okay”, and the conversation
ended. According to Caporal, Macy did not speak to him again about this. Caporal testified that
this conversation occurred in English. While acknowledging that he sometimes has difficulty
communicating in English, he understands the language fairly well.13 On cross-examination,
Caporal admitted that he did not mention this conversation to anyone for almost six months, and
reported it only after he was fired.
Macey did not deny having a conversation with Caporal before the election about his
being on the production floor. Macey testified that he spoke to Caporal in response to
complaints he had received from the mixer operator and a supervisor that Caporal was
interfering with production. According to Macey, he merely took Caporal aside and told him that
he works in the shipping department and should remain there, that there was no reason for him
to be talking to employees on the production floor. Macey testified that he told Caporal that he
could go to the cafeteria and talk to employees on his breaks. Macey denied mentioning the
Union in this conversation, asserting that the complaints he received did not indicate what
Caporal was talking about to the employees, only that he was disturbing them while they were
working.
The General Counsel argues that Macey’s statements to Caporal were an implied threat
of retaliation for talking about the Union and amounted to the promulgation of a discriminatory
“no-talking” rule. See, e.g., Flamingo Hotel-Laughlin, 324 NLRB 72, 110 (1997), enf. denied in
part on other grounds, 148 f.3d 1166 (D.C. Cir. 1998). This argument depends entirely on the
credibility of Caporal. Although I do not believe Caporal fabricated his testimony, I am reluctant
to credit his testimony regarding this conversation. As noted previously, Caporal is not fluent in
English and there is a real possibility that he misunderstood Macey’s admonition. I also note the
absence of evidence that other employees were prohibited from “talking” about the Union, and
the absence of evidence that the Respondent customarily allowed employees from other
departments to come onto the production floor and engage production employees in non work-
related conversation while they were working. Caporal’s testimony without any supporting
evidence is thus not sufficiently reliable to support the allegation in the complaint. Moreover,
although I did not find Macey a credible witness on other matters, his testimony regarding the

12 The transcript, at page 190, ln 12-14, erroneously shows the word “position” in place of
“production”. Based on General Counsel’s unopposed motion, I shall correct the transcript
accordingly.
13 I observed that Caporal generally was able to testify in English although a few times he
did not understand the questions he was asked and needed to use the services of the
interpreter.
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conversation with Caporal had the ring of truth. I find it more probable than not that, as Macey
testified, he simply reminded Caporal that he needed to remain in his work area unless he was
on break and that he should not disturb other employees who were working.
Based on the above, I have determined that the General Counsel has failed to meet his
burden of proof on this allegation. Because this is the only unfair labor practice allegation in
Case No. 34-CA-11504, I shall recommend that the complaint in that case be dismissed in its
entirety.
2. Allegations Involving Supervisor Rodriguez
The consolidated complaint in Case Nos. 34-CA-11385 and 34-CA-11417 alleges, at
paragraphs 7 and 8, that the Respondent, through its admitted supervisor, Jennifer Rodriguez,
violated Section 8(a)(1) of the Act by interrogating employees and threatening them with loss of
employment and closure of the facility if they selected the Union to represent them.14
Respondent has denied these allegations. The General Counsel’s sole witness in support of
these allegations was former employee Ricardo Rodriguez, who testified to two encounters with
supervisor Rodriguez in the weeks preceding the January election.15
Ricardo Rodriguez was employed by the Respondent from October 31, 2005 until he
voluntarily quit in April or May, a few months after the election. He was a quality control
inspector on the second shift. Jennifer Rodriguez was his immediate supervisor. Ricardo
Rodriguez testified that supervisor Rodriguez called him into her office on January 10 at about 4
or 5 pm. No one else was present.16 According to Ricardo Rodriguez, after initially talking about
work-related issues, Supervisor Rodriguez asked him what he knew about the Union. Ricardo
Rodriguez told her that some people had spoken to him about it and that he had a relative who
was in a union. The supervisor then asked if he knew that there was a union trying to get into
the factory. She mentioned that there was an election coming up and told Ricardo Rodriguez
that she wanted him to vote “no”.
Ricardo Rodriguez testified that Supervisor Rodriguez also told him, in this conversation,
that if the Union got into the company, the employees could lose their medical benefits and that
company’s “open-door policy” could end. She told him that the Union would decide what the
medical benefits would be. Ricardo Rodriguez also recalled that his supervisor told him the
Union could end up causing the factory to close and she gave as an example a company in
nearby Meriden, Connecticut that made car parts and was closing. Ricardo Rodriguez asked
Supervisor Rodriguez if it was the same union that was trying to get into the Respondent’s
facility and she said it was. According to Ricardo Rodriguez, Supervisor Rodriguez did not
explain how the Union could cause the factory to close. Ricardo Rodriguez told his supervisor
that he had worked at the factory that was closing for about a week and left because he heard
rumors that it was closing. He told her he did not know why the factory was closing. On cross-
examination, Ricardo Rodriguez conceded that Jennifer Rodriguez did not say directly that the
Respondent was going to close if the Union came into the factory. He also recalled that, at the
end of the meeting, Jennifer Rodriguez asked him to think about it and said that she would like

14 Counsel for the General Counsel, in her post-hearing brief, withdrew the allegation that
Respondent threatened loss of employment.
15 Ricardo and Jennifer Rodriguez are not related.
16 This conversation was in Spanish. Although Ricardo Rodriguez speaks and understands
English well, he testified to this conversation in Spanish with the court interpreter translating into
English.
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him to vote “no”.
Ricardo Rodriguez testified to one other conversation with Jennifer Rodriguez that
occurred about a week before the election. This conversation, also in Spanish, took place in her
office with no one else present. Again, after initially discussing a work issue, she asked him how
things were going on the floor. When Ricardo Rodriguez asked her what she meant, Jennifer
Rodriguez replied, “you know, the Union.” Ricardo Rodriguez told her that things were good,
that some people had talked to him about it saying good things about the Union while others
said bad things about it. Ricardo Rodriguez told her he had made up his mind because he did
not want to lose benefits. Jennifer Rodriguez told him, “when you vote, make sure you put a big
X where it says no.”
Jennifer Rodriguez testified for the Respondent. She has been employed by the
Respondent for more than ten years and had been the supervisor of sanitation and quality
control for about 3½ years at the time of the hearing. She testified that she “did not, at any time
talk to Ricardo Rodriguez about the Union”. She repeated this answer, as if by rote, in response
to each leading question from counsel as to whether she made the statements attributed to her
by Ricardo Rodriguez. According to Jennifer Rodriguez, she only spoke to Ricardo Rodriguez
about production. Jennifer Rodriguez acknowledged that she speaks Spanish when talking to
the Respondent’s Spanish-speaking employees.17 Jennifer Rodriguez also testified that, in early
January, after learning of the re-run election, she attended a meeting with Price and the
Respondent’s lawyers at which the supervisors and managers were instructed about how to
conduct themselves lawfully during the campaign. She recalled being told not to have meetings
with employees about the Union. The supervisors were also told that they could answer
employees’ questions if they knew the answer. Otherwise, the supervisor was to refer the
employee to Human Resources.
As between these two witnesses, I found Ricardo Rodriguez to be the more credible
witness. Jennifer Rodriguez’ rote denials were not persuasive. In addition, her testimony on
another matter, the preparation and distribution of the disputed job descriptions, was
deliberately misleading. For example, at first she testified that Maria Giaimo gave her the new
job descriptions. Later, when the Respondent’s counsel pointed out that Ms Giaimo did not work
there when the job descriptions were supposed to have been created, she changed her
testimony. At another point in her testimony, Jennifer Rodriguez testified that she didn’t
remember if Operations Manager Macey read from his power point presentation line by line, yet
she was certain he didn’t deviate from it. I also noted her evasiveness when answering
questions on cross-examination. In total, it appeared that she formulated her answers to
advance whatever position the Respondent was taking on an issue. In contrast, Ricardo
Rodriguez appeared to be candid with his answers, attempting as best he could to recall events
and conversations. Although the Respondent attempted to show that he was biased against the
Respondent because he had complained about Jennifer Rodriguez’ supervision in his
resignation letter, I did not detect any bias in his testimony. Moreover, contrary to the
Respondent’s argument, Ricardo Rodriguez did refer to the unfair labor practice allegation in his
resignation letter, when he complained that the Respondent had violated his rights in the
election by telling him to vote “no”. Although he did not name his supervisor as guilty of this
affront, it is clear from his testimony that, on two occasions, she told him to vote “no”.
Having credited Ricardo Rodriguez, I find, based on his testimony, that the Respondent

17 Unlike Ricardo Rodriguez, Jennifer Rodriguez testified almost entirely through the
interpreter.
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violated Section 8(a)(1) when his supervisor called him into her office on two occasions and
interrogated him about the Union. Ricardo Rodriguez was not an open and notorious union
supporter when Jennifer Rodriguez first asked him, on January 10, what he knew about the
Union. Nor had he exhibited any pro-union sympathies when she called him in again, a week
before the election, and asked him how things were going with the Union on the shop floor.
Jennifer Rodriguez’ questioning of her subordinate was not part of an isolated and spontaneous
conversation but appears to have been deliberately calculated to ascertain Ricardo Rodriguez’
union sympathies. The questioning was all the more coercive because it was coupled with an
admonition to vote “no” and occurred in the context of an implied threat of plant closure if the
Union prevailed in the upcoming election. Accordingly, under the totality of circumstances,
including the Respondent’s history of unfair labor practices, I conclude that Jennifer Rodriguez’
interrogation of Ricardo Rodriguez violated the Act as alleged in the complaint. Medcare
Associates, 330 NLRB 935, 939-940 (2000); Sunnyvale Medical Center, 277 NLRB 1217
(1985). Cf. Heartshare Human Services of New York, 339 NLRB 842, 843-844 (2003).
As intimated above, I have also found, based on Ricardo Rodriguez’ credited testimony,
that Respondent unlawfully threatened employees with plant closure when Jennifer Rodriguez
told him, without explanation, that the Union could end up causing the Respondent to close the
facility.18 Although her statement did not directly threaten that the Respondent would close the
plant if the Union won the election, she clearly implied that would be the result. This prediction
was not based on any objective facts but rather appeared to be based solely on the Union’s
history at another nearby facility. Without any further explanation, an employee could
reasonably believe that the Respondent would rather close the plant than deal with this Union.
The Board and the courts have historically found such statements unlawful NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969); Homer D. Bronson Co., 349 NLRB No. 50, slip op., at pp. 2-3
(Mar. 16, 2007); Daikichi Sushi, 335 NLRB 622, 623-624 (2001). Accordingly, I find that the
Respondent has violated the Act as alleged in the complaint.
3. Alleged Threat by Price
The consolidated complaint in Case Nos. 34-CA-11385 and 34-CA-11417 alleges, at
paragraph 9, that the Respondent, through Plant Director Price, threatened employees with loss
of employment if they selected the Union as their representative. The evidence offered at the
hearing indicates that this threat is alleged to have occurred during an employee communication
meeting Price held with employees in early January, shortly after the re-run election was
announced. The main witness for the General Counsel in support of this allegation is Gregory
Borukhovich, one of the unfair labor practice strikers found to have been unlawfully denied
reinstatement in the earlier unfair labor practice proceeding before Judge Biblowitz.
Borukhovich testified that he attended a meeting in the lunch room with about 20-30
other employees, in early January, at which Price informed employees of a wage increase and
improvements in benefits.19 Price also talked about the Respondent’s accomplishments in the
past year. During the question and answer portion of the meeting, after Price mentioned a letter
he sent to the employees about the recent holidays, Borukhovich spoke up, saying, “what
holiday, I had one day off.” Price then mentioned the upcoming election and told the employees

18 The complaint does not allege that Jennifer Rodriguez’ statement that employees could
lose their medical benefits was unlawful.
19 The General Counsel does not allege that the wage and benefit increases announced at
this meeting were unlawful. It appears that they were part of an established practice at the
facility.
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that he wanted to work with them and that, if they wanted to work with him, to vote “no”. At that
point, Borukhovich asked, “if I vote ‘yes’, will you fire me?” According to Borukhovich, Price did
not answer this question. Instead, he became annoyed and told Borukhovich, “this is my
meeting. I am paying for this meeting.” Borukhovich admits he also got angry but claimed he
could not recall what he said. He acknowledged that he and Price argued back and forth to the
point he stopped paying attention to what was said. The only thing he remembered clearly was
the above-quoted question he asked Price, which initiated the argument, and the fact that Price
did not answer the question. On cross-examination, Borukhovich denied that Price said the
election would be by secret ballot. However, he acknowledged that Price did say at one point
that “no one will know how you voted.”
The General Counsel called two other witnesses to “corroborate” Borukhovich’s
testimony. Jack Toporovsky, the other unfair labor practice striker who was found to have been
unlawfully denied reinstatement in the prior case, testified that he was at this meeting and
recalled there being an exchange between Borukhovich and Price, but he did not recall what
was said. In his pre-trial affidavit, Toporovsky had stated that he did not recall being present at
any meeting at which Borukhovich spoke up about whether he would be fired if he voted for the
Union. Luther Harris, who had been employed by the Respondent for 17 years when he testified
at the hearing, recalled entering the meeting when it was already in progress. He did recall
Borukhovich speaking up at the meeting after Price mentioned the upcoming election. When
Price told the employees they had a right to vote for the Union but asked them to vote “no”,
Borukhovich asked, “if I vote yes, will you fire me?” Price did not answer. According to Harris,
Borukhovich then said, “I’m going to vote for the Union, you fire me.” Price still did not answer
this question. Instead, Price said, “this is my meeting and I’m not going to talk about the Union
at this time.” Price then changed the subject and went on with the meeting.20
Price testified for the Respondent regarding this allegation. Price recalled holding an
employee communication meeting in January at which Borukhovich got up and started to make
a statement during the question and answer portion of the meeting. Price admitted cutting him
off by saying, “this is my meeting. If you have a question, ask it, but don’t make statements.”
According to Price, Borukhovich started to make his statement again and Price again cut him
off. Finally, Borukhovich sat down and the meeting continued. Despite being able to recall the
interruption and his response, Price surprisingly could not recall what Borukhovich said before
he cut him off. Despite this lack of memory, Price was able to deny that Borukhovich said, “if I
vote yes, you fire me” or words to that effect. The Respondent called no other witnesses who
were at this meeting. Jennifer Rodriguez, who was identified by other witnesses as being at this
meeting, was not asked any questions about it.
There is very little dispute regarding the facts of this allegation. All witnesses who
testified recalled Borukhovich speaking up at the meeting and Price cutting him off by saying
“this is my meeting” or words to that effect. Although Price claimed he could not recall what
Borukhovich said, I find his lack of recall not credible. Borukhovich’s testimony that he asked
Price if he would be fired for voting yes is corroborated by Harris, a long-term employee of the
Respondent whom I found to be very credible. There is no dispute that, whatever Borukhovich
said, Price did not respond to it directly. The issue remains, however, whether Price’s silence, in
the face of such a statement, amounts to ratification or adoption of the statement and a threat of
job loss for voting for the Union.

20 The Respondent’s counsel chose not to cross-examine Harris.
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The General Counsel and the Charging Party argue that Price’s failure to expressly
disavow the suggestion in Borukhovich’s question that a vote in favor of the Union would lead to
his termination amounts to agreement with the statement. According to the General Counsel,
Price’s silence reinforced the message that, if employees wanted to work with him to improve
the company, they would vote “no”. The only case cited by the General Counsel in support of
this argument is Homer D. Bronson Co., supra, where the Board relied on an exchange
between an employee and the president of the company to establish that the Employer’s
statements at a meeting threatened plant closure. In that case, however, the Employer’s
president did not remain silent when the employee asked if he was saying that the company
would move or close if the Union came in. There, the president responded, “it could happen.”
This is a far cry from the situation here. As admitted by Borukhovich, not only did Price not
respond to the question, but he reminded the employees that “no one will know how you voted.”
In addition, Price interrupted Borukhovich, cutting off his question, by stating that it was Price’s
meeting, attempting to get the meeting back on track. Under all the circumstances, I can not find
that Price’s silence amounted to an unlawful threat, express or implied, that a vote for the Union
would result in loss of employment. Accordingly, I shall recommend that this allegation be
dismissed.
4. Alleged Threats During the Respondent’s
Pre-Election Campaign Meetings
There is no dispute that, as part of its campaign to convince the employees to vote
against the Union, the Respondent held four series of meetings in the weeks before the
election, each one on a different topic conducted by a different member of management. All of
the meetings followed the same format with the designated speaker using a power point
presentation prepared with assistance of counsel. At each meeting, there was an interpreter to
translate the statements made by the management representative from English to Spanish. The
meetings were held in a conference room with groups of 15-20 employees. The meetings lasted
from 25-40 minutes. According to Brian Glancey, the Respondent’s Senior Director of Human
Resources at the time, the speakers were instructed to read from the power point verbatim, not
to deviate from the scripted presentation, and not to allow for questions.21
The consolidated complaint in Case Nos. 34-CA-11385 and 34-CA-11417 alleges that
statements made by Glancey at his series of meetings unlawfully conveyed to employees that
their selection of the Union would be futile. The consolidated complaint further alleges that
Macey, the Respondent’s operations manager at the time, threatened employees with loss of
benefits at his series of meetings. Although Price and Tom Maruri, the Respondent’s Vice
President of Operations, conducted the other two series of meetings, there are no allegations in
the complaint regarding anything said at these meetings.
(a) Macey’s alleged threat
Macey conducted the first series of meetings, sometime during the second week of
January. The General Counsel relies on the testimony of 3 witnesses to establish the violation,
i.e. Ricardo Rodriguez, Toporovsky and Mixer operator Dave Armstead, a 21-year employee of
the Respondent. All three claim that, despite whatever instructions he had, Macey deviated from
the power point presentation and spoke extemporaneously during the meeting. Ricardo
Rodriguez and Toporovsky attended the same meeting, at approximately 4 or 5 pm on January

21 Glancey left the Respondent’s employ in September. He was not an employee when he
testified at the hearing.
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11. Both recalled that supervisor Jennifer Rodriguez was at their meeting. Toporovsky recalled
the meeting lasting about 40 to 45 minutes. Although Rodriguez testified that the meeting was
long and tiring, he did not give a length of time it lasted. Armstead, who works on first shift,
attended a different meeting. He recalled that the meeting he attended lasted about an hour.
Ricardo Rodriguez testified that, during the meeting he attended, Macey said, “if you
don’t want to lose your medical benefits, you will vote ‘no’” and “your 401 (k) will be gone” and “if
you don’t want to lose your 401(k), you will vote ‘no’”. According to Rodriguez, Macey did not
explain why their benefits would be “gone.” Rodriguez conceded that Macey said a lot of other
things in the meeting that he could not remember. According to Ricardo Rodriguez, the most
significant thing he remembered from the meeting was Macey’s use of the command, “you will
vote no” after almost every statement he made. On cross-examination, Rodriguez testified that
Macey described the Respondent’s current health insurance benefits as good and asked the
employees why they would want to lose that. Macey went on to say that, with a Union, that
might happen and the employees would have to take whatever the Union wanted. Also on
cross-examination, Ricardo Rodriguez was asked to review a document purporting to be the
power point presentation used by Macey. Although Rodriguez testified that he did not recall
seeing all of the pages in the document, he acknowledged that at least part of the proffered
exhibit was shown during the meeting.
Toporovsky’s recollection of the meeting differed slightly from that of Ricardo Rodriguez.
He testified that the theme of Macey’s meeting appeared to be to tell people to vote “no” by
pointing out the Union’s weak spots. He recalled Macey talking about union-represented
employees at General Motors losing their jobs and about other unionized employers in the area
shutting down. He then testified that Macey said that the Respondent’s employees could lose
their health insurance and 401(k) because the Union would come in with their own health and
pension benefits. He did not recall Macey saying that these benefits would be subject to
bargaining. According to Toporovsky, that was said at another meeting. Like Ricardo Rodriguez,
Toporovsky distinctly remembered Macey repeatedly saying “vote no.” Also, as with Ricardo
Rodriguez, Toporovsky did not recognize the document proffered by the Respondent as the
complete power point presentation Macey used. He did recall that Macey’s statement about
losing medical and 401(k) benefits was not on any power point slide but rather was said when
Macey elaborated on a statement in one of the slides.
Armstead testified that Macey told the employees at his meeting that their Blue
Cross/Blue Shield insurance would be gone if the Union came in because the Union would want
the employees to see a union doctor. Armstead recalled that Macey said that everything would
be subject to bargaining, that everything would be wiped clean, that the employees would have
to start from the beginning, and they could lose. He recalled further that Macey said the
employees either could or would lose their 401(k) benefits, although he was not certain about
this. Armstead also testified that Macey told employees that with a union, there would be shop
stewards and they would no longer be able to go directly to him with a problem. If an employee
had a problem, they would have to talk to the steward and, if the shop steward didn’t like you,
he might not bring the problem to Macey. As did Ricardo Rodriguez and Toporovsky, Armstead
clearly recalled Macey repeatedly telling the employees to “vote no.” According to Armstead, he
spoke up at one point, saying, “we could also vote “yes”, to which Macey responded that it was
his meeting, don’t disrespect him. When Armstead tried again to point out that employees could
vote “yes”, Macey told him if he disrupted the meeting again, he would be asked to leave. On
cross-examination, Armstead conceded that he could not recall everything that Macey said
which deviated from what was on the power point slides and admitted that he did not pay close
attention to what Macey was saying because he had already made up his mind. However, he
re-affirmed his testimony on direct, stating that he had a clear recollection of the statements
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Macey made regarding the loss of benefits.
Macey, when called as a witness by the Respondent, specifically denied making the
statements attributed to him by the General Counsel’s witnesses.22 He testified that he merely
read the slides in the power point and made no additional comments. Although some of the
power point slides had words and phrases, such as “vote no”, printed in bold type, Macey
denied emphasizing these statements when he read the slides. He also claimed, somewhat
disingenuously, that the purpose of his presentation was not to urge the employees to vote no,
despite the appearance of this admonition in the slides. According to Macey, he began the
meeting by telling the employees he was there to provide them with information and that he
would not be taking questions. He told the employees that, if they had questions, they could ask
them at another time. He did corroborate Armstead’s testimony regarding Armstead’s
interruption and his response and recalled that Borukhovich had also interrupted another
meeting by making the same statement he made during Price’s employee communication
meeting about a week earlier. According to Macey, each of his meetings lasted 30 meetings.
The only witness the Respondent called to “corroborate” Macey’s denial was Jennifer
Rodriguez.23 Jennifer Rodriguez denied that Ricardo Rodriguez and Toporovsky were at the
meeting she attended. She specifically denied that Macey made the alleged threats attributed to
him by these witnesses and denied further that he deviated from the scripted power point
presentation. However, she admitted that she could not recall whether he read the script “line-
by-line.” Jennifer Rodriguez also exhibited poor recall regarding other details of the meeting,
including who else was at the meeting she attended.
In addition to the testimony of Macey and Jennifer Rodriguez, the Respondent proffered
the scripted power point presentation as part of its defense to this unfair labor practice
allegation. As to be expected, nothing on the face of the document amounts to an unfair labor
practice under current Board law. Instead, the power point slides contain information about the
election, urge employees to vote “no”, posit the loss of 30,000 jobs at GM as the reason the
Union is seeking to represent the Respondent’s employees, discusses the role of shop stewards
(called “Union pushers”) and the “control” they and the Union would exercise over employees
work and lives if the Union were successful, refers to unions’ history of “embezzlement, theft…,
etc.” and, at the end, asks the employees if they are willing to “risk it.” None of the power point
slides in evidence mention the potential loss of medical or 401(k) benefits. The only reference to
these benefits is on the following slide, which appears toward the end of the presentation:
How does a Union Make its
Money
• Through dues, fines and assessments.
• By attempting to control your health insurance premiums.
• By attempting to control your incentives, bonuses, etc…
• By attempting to control your 401k monies.
Thus, whether the Respondent committed this alleged unfair labor practice turns initially on
whether the testimony of the General Counsel’s witnesses, that Macey did not limit himself to

22 These denials were elicited by leading questions from the Respondent’s counsel.
23 Macey testified that Jennifer Rodriguez attended at least one of his meetings in its entirety
and that she may have been present for parts of other meetings. In all, Macey held 9 meetings,
three on each shift, with about 15 employees at each meeting.
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the scripted presentation, is credible.
Having carefully considered the matter, I am unable to credit Macey’s testimony that he
merely read the script and did not say anything beyond what was on the slides. I note that
Jennifer Rodriguez, whom I have already found not to be a credible witness, did not effectively
corroborate this testimony. Although she claimed that Macey did not deviate from the script, she
admitted not being able to recall if he read it “line-by-line.” Moreover, if Macey had simply read
what was on the slides, the meeting could not have lasted the thirty minutes he claims, and
certainly not 40 minutes to an hour, as the General Counsel’s witnesses recalled. In fact, it
takes about five minutes to read through the Exhibit purporting to be the power point
presentation, if one reads it at a pace one would expect to be used in a meeting of this nature.
Even allowing for time for the interpreter to translate what Macey was saying, the process could
not have consumed 30 minutes, unless Macey elaborated on the points raised in the
presentation.24 Finally, I note the natural human tendency to extemporize from a prepared script
in situations where an individual is speaking on a matter of significance and is trying to make a
point, or sell an idea.
Having found that Macey did not limit himself to the script, at least at the two meetings
attended by the General Counsel’s witnesses, I must determine whether he made the
statements attributed to him by these witnesses and whether such statements amount to a
threat of loss of benefits in violation of the Act. Because I have discredited Macey’s claim that
he limited his statements at the meeting to what was in the script, I find his denial of the alleged
threat unpersuasive. I do not corroborate any of Jennifer Rodriguez’ testimony about this
meeting. As with her testimony regarding the conversation with Ricardo Rodriguez and her
testimony regarding the purported job descriptions, I find that she was simply saying what was
expected of her and was not candid in her testimony.25 At the same time, the testimony of the
General Counsel’s witnesses was not free from doubt. I note, in particular, the lack of context to
the statements they recalled from the meeting. Although all recalled the meeting lasting a
considerable amount of time, they recalled very little of what was said. In addition, on cross-
examination, counsel for Respondent was able to undermine some of their direct testimony by
getting the witnesses to acknowledge either that they were not paying attention, or that they had
confused several meetings, or that their memory was not clear. At the same time, I am struck by
the fact that all three recalled very similar statements by Macey, which they adhered to during
somewhat lengthy cross-examination.
After careful consideration, I have decided to credit the General Counsel’s witnesses
and find that, at the two meetings conducted by Macey that they attended, he elaborated on the
points raised in the power point by telling employees that, if they selected the Union, they could
lose their current health and 401(k) benefits because the Union would want to have their own
such benefits. This statement was most likely made in connection with the point made in the
slide that unions make their money through such fringe benefit funds and to emphasize the
theme of Macey’s meeting, i.e. that employees would “lose control” if they were represented by
a union. Whether such statements violate the Act turns on whether the message conveyed to

24 Because the Respondent insists that questions were not allowed, the additional time can
not be explained by employee participation.
25 Even if I were to credit Jennifer Rodriguez, her testimony would not be inconsistent with
that of General Counsel’s witnesses because she insisted she was not at the meeting attended
by Ricardo Rodriguez and Toporovsky and, because she did not work on the same shift as
Armstead, she was most likely not at that meeting either. In any event, she did not claim to be at
the meeting he attended.
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employees is that their wages and benefits are threatened, not because of the uncertainties of
collective bargaining, but simply because the employees selected a union to be their bargaining
representative. Federated Logistics and Operations, 340 NLRB 255 (2003), enfd. 400 F.3d 920
(D.C. 2005) and cases cited therein. There is little or no discussion of the give-and-take of
collective bargaining in the Respondent’s scripted power point presentation.26 On the contrary,
a review of Macey’s presentation reveals that the message to be conveyed was that employees’
“loss of control” to the Union, and everything that went along with that, would happen upon the
Union’s selection as the employees’ bargaining representative. The potential loss of benefits
was a given, if the employees voted for the Union, just as the loss of direct access to
management would be once the “Union pushers” became shop stewards. Under these
circumstances, Macey’s statements at the meetings attended by General Counsel’s witnesses
amounted to an unlawful threat of loss of benefits, and I so find.
(b) Glancey’s Alleged Statement of Futility
Glancey conducted the third series of meetings, within a week of the election.27 At the
hearing, the General Counsel offered the testimony of three witnesses, i.e. Toporovsky,
Borukhovich and Jeanelle Samuels, 28 to establish that Glancey made unlawful statements
suggesting the futility of union representation. In her brief, Counsel for the General Counsel
argues that the “totality of the evidence”, including the power point presentation itself considered
in the context of the testimony of employee witnesses and statements made by management
representatives at other meetings, conveyed the message that a vote for the Union would be
futile.
Toporovsky and Borukhovich attended the same meeting, on second shift. Samuels,
who worked third shift, attended a different meeting.29 As with the testimony regarding Macey’s
meeting, these three witnesses recalled that Glancey deviated from the script of the power point
presentation, elaborating on the points made on the slides being shown. The witnesses had
difficulty identifying the document offered by the Respondent as the power point used by
Glancey, recalling some slides but not others. This is understandable because an individual is
more likely to remember something they heard at a meeting than what was written on a slide
projected on a screen. All three witnesses agree that Glancey identified himself as the man who
would represent the Respondent at any negotiations with the Union and that he told the
employees he had a lot of experience dealing with unions. Toporovsky recalled Glancey telling
the employees he was “very good at it.” Each also remembers Glancey saying essentially that
employees could lose what they currently had as a result of negotiations. None recalled him
saying that employees could gain anything from bargaining. Nor did any of them recall
specifically that Glancey “explained” the process of collective bargaining, despite what appears
in the purported script of the power point.
Samuels, who testified in more detail about her meeting, recalled that Glancey also told
employees that the Respondent once had four plants that were unionized and now had two.
Glancey did not identify the plants and did not say that they had closed because of the unions.

26 The collective bargaining process was the theme of Glancey’s meeting, to be discussed.
27 Glancey testified that he conducted three meetings per shift, for a total of nine, with
between 8 and 13 employees at each meeting.
28 At the time of her testimony, Samuels had been employed by the Respondent for more
than 19 years. She was also an alleged discriminatee in one of the settled cases.
29 Samuels did not stay for the entire meeting. She left after about 20-30 minutes when
Glancey would not let her ask questions.
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Samuels also recalled that Glancey spoke about the possibility of strikes and their impact on
employees, saying that the Respondent would use managers and temporary employees to work
if they went on strike and that the employees might not get their jobs back when they returned.
Samuels did not remember Glancey using the phrase “economic strike”. At one point, Glancey
told the employees at the meeting Samuels attended that he had seen strikes last 7 years or
longer. Borukhovich also recalled Glancey speaking about strikes although he did not recall as
much detail as Samuels. What Borukhovich did recall with certainty is Glancey telling the
employees throughout the meeting to “vote no”.
Glancey denied, in response to leading questions from counsel, that he made the
statements attributed to him by General Counsel’s witnesses that would suggest the futility of
bargaining. According to Glancey, he strictly followed the instructions to “stick to the script,”
making no extemporaneous comments, and to prohibit the employees from asking questions or
making comments. Unlike the other speakers, however, he participated in the preparation of the
power point presentation he used at the meetings, including deciding which words and phrases
to put in bold type. He acknowledged that he probably emphasized the passages in bold when
reading the script. Glancey testified that each presentation, with the translation, lasted 25 to 30
minutes.
All parties appear to rely on the power point presentation to prove their point. The
Respondent argues that all of the statements contained in the scripted presentation are lawful
statements regarding the collective bargaining process and are protected under Section 8(c) of
the Act. The General Counsel and the Charging Party, on the other hand, argue that the
“message” contained in the presentation, as evidenced by what Glancey chose to highlight, was
that employees would gain nothing from bargaining. The General Counsel emphasizes the
following portions of the presentation, with the bold type shown here in the original, as
hammering home the message of futility:
What Happens if the Union Wins?
Simply Stated
The Union Wins the Right to Bargain!
Nothing More
What Obligation Would the Company Have?
Simply Stated
The Obligation to
Bargain in Good Faith
What Does Bargaining in Good Faith Mean?
Nothing More
Than
To Sit Down With the Union
&
Talk in Good Faith!
It Does Not Have to Agree To Anything
That It Believes Is Not in
Best Interest of the Company
Bargaining Is A Two-Way Street
• Nothing is Automatic, No matter What The Union Told You.
• Bargaining Is A “Give & Take” Process
• There Is No Guarantee That You Will Maintain What You Presently Have.
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• You Could Lose What You Have Now!
• The Company Does Not Have To Agree To Anything!
We Will Not Agree To Anything
If It Is Not In The Best Interest of The Company’s Financial Future!
The next slide in the presentation states that the Union does not choose what to
negotiate, that everything gets negotiated and “you may actually end up with less!” The next
few slides talk about the Union’s desire for a union security clause and dues check-off,
suggesting what the Union might be willing to trade for these provisions, i.e. wage increases,
Blue Cross/Blue Shield coverage, sick days, holidays and vacations. Or, the presentation
suggests, the Union might ask the employees to pay more for their benefits as a trade off. The
employees are then told that, despite what the Union may have told them, “the company does
not have to give something up in negotiation for nothing. Negotiations Does Not Work that
way! In negotiations employees could clearly end up losing!”
The next section of the presentation deals with impasse, using a proposal on wages to
illustrate the topic. In the example, the Union proposes an increase from $12 to $14 per hour
while the Employer proposes a decrease to $10 per hour. The slide then states, “once the
parties have negotiated in good faith and have truly reached impasse…the law allows the
employer to implement its proposal and pay employees the $10 per hour it proposed!”
(emphasis in original). The General Counsel relies upon the use of the word “once” rather than
“if” as conveying the message that impasse is inevitable. The next slide tells employees there
are three possibilities in negotiations, including that they could end up with more or the same as
they currently had, “but have to pay union dues, fines and assessments.” The section on
negotiations ends with the statement that “management never loses its right to manage it’s
people and operation (sic).”
The next section in the presentation deals with strikes. The first slide in this section asks
the question: “What can the Union do if the company says no in negotiations?” The answer
provided is that the Union has the power to call the employees out on strike. On the next slide,
the Respondent reassures employees that “a strike is not inevitable” and states that the
Respondent will do everything it can to avoid one. The presentation then counterbalances the
Union’s right to strike with the Respondent’s right to continue operations and informs the
employees that Respondent has already developed a strike plan, which includes, inter alia,
operating with temporary and permanent replacements. On the next slide, Respondent answers
the question, how long could a strike last, by citing “several years” as one possibility. The
presentation then discusses the hiring of permanent replacements and the rights of striking
employees. Finally, the employees are told that the Union will continue to earn money during a
strike, only the employees will be without income. The power point ends by telling the
employees that they can minimize the possibility of “all this happening to you….by voting no.”
In her brief, Counsel for the General Counsel also relies upon statements made by Price
during his power point presentation and by Maruri in his final speech to the employees before
the election as “illuminating and reinforcing” Glancey’s message of futility. Specifically, General
Counsel cites the following slide from Price’s presentation, which was the second of the four
pre-election speeches:
What Is the Union Not Going To Do?
They Will Not Be Able To Tell Us How To Run Our Operation!
They Will Not Be Able To Tell Us What We Are Going To Pay In Wages &
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Benefits!
They Will Not Be Able To Tell Us What Vacations You Are Going To Have!
They Will Not Be Able To Tell Us How Many Sick Days We Can Have!
They Will Not Be Able To Tell Us How The Facility Is Going To Be Managed!
We Would Negotiate In good Faith but We Will Not Agree To Anything That Is Not
In The Best Interest Of The Company
She also cites the following passage near the end of Maruri’s speech:
What do you think Subway is going to think if the union is voted in and we are
unable to deliver our product to them on time, because of strikes called by the
union, or other union disruptions. Then remember that none of Subway’s other
suppliers (General Mills and Rich Products) who provide them with bread, is faced
with the same potential union disruptions.
As noted above, the complaint does not allege that anything said by either Price or Maruri
violated the Act. Nevertheless, General Counsel wants me to consider these portions of their
presentations as context to Glancey’s statements.
The General Counsel and the Charging Party argue that the power point presentation, in
the context of other statements and conduct during the campaign, conveyed the message that
the outcome of negotiations was pre-ordained and that employees would gain nothing by
selecting the Union as their bargaining representative. I disagree. Nothing in Glancey’s scripted
power point presentation is like the unlawful statements of futility found in the cases cited by
General Counsel and the Charging Party. In Smithfield Foods, Inc., supra, the president of the
company expressly told employees that no matter what the Union offered in negotiations, the
employees would continue to receive the same wages and benefits as employees at the
company’s other plants. This statement was reinforced by a video in which the company’s
human resources manger told employees that the Union could not get the employees anything,
that the only thing employees can get is what the company is willing to give. As found by the
Board, these statements conveyed the message that the Employer had complete control over
negotiations, which is inconsistent with good faith bargaining. In Federated Logistics, supra, the
employer made statements that bargaining would start at zero and that the Union would have to
go on strike and that any strike would be unsuccessful, leading employees to believe that any
loss of benefits would not be the result of the give and take of bargaining but would be a
punitive response by their employer to the employees’ selection of the Union as their
representative. See also Flamingo Hilton-Laughlin, 324 NLRB supra at 119, enf. denied in
pertinent part 148 F.3rd supra at 1174 (D.C. Cir. 1998)(The company’s new president told
employees that he foresaw negotiations as lasting for years); Kenworth Trucks of Philadelphia,
Inc., 229 NLRB 815, 877 (1977) (Company president told employees that no matter how the
election turned out, it was his company and he’d run it as he pleased).
As the Supreme Court said, in Gissel, supra,
An Employer is free to communicate to his employees any of his general views
about unionism or any of his specific views about a particular union, so long as the
communications do not contain a “threat of reprisal or promise of benefit”. He may
even make a prediction as to perceived effects he believes unionization will have on
his company. In such a case, the prediction must be carefully phrased on the basis
of objective fact to convey an employer’s belief as to demonstrably probable
consequences beyond his control or to convey a management decision already
made to close the plant in case of unionization.
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395 U.S, supra, at 618. Although the Court there was addressing an unlawful threat of plant
closure, the same test has been applied to similar campaign statements by employers regarding
the possible effects of unionization. See UARCO, Inc., 286 NLRB 55, 58 (1987). Recently, the
Board reiterated, in an objections case, that absent threats or promises, an employer may
explain the advantages and disadvantages of collective bargaining in order to convince its
employees that they would be better off without a union. Medieval Knights, LLC, 350 NLRB No.
17 (June 29, 2007).30 See also, Park ‘N Fly, Inc., 349 NLRB No. 16, slip op. at p. 2 (January 31,
2007).
Applying the above test to the statements at issue here, I find that Glancey’s power point
presentation, either considered as a whole, or in any specific part cited, never crossed the line
beyond what is protected by Section 8(c) of the Act. While it is true that Glancey emphasized
the possible negative outcomes of collective bargaining, at no time did he indicate that these
were a pre-ordained conclusion. On the contrary, he stated at several points that whatever
resulted from unionization would be the product of “good faith negotiations” and he expressly
stated the Respondent’s commitment to bargain in good faith. Moreover, none of the statements
attributed to him by General Counsel’s three witnesses, allegedly made when he deviated from
the script, amounted to a statement of futility. None of these witnesses recalled Glancey making
statements that would indicate that the Respondent would have control over the negotiations,
that a strike was inevitable, or that bargaining would start from “scratch” or “zero” or similar
comments. Even Samuels’ testimony that Glancey said he had seen strikes last “seven years”
was not a statement that the Respondent would intentionally prolong negotiations to deny
employees the benefits of collective bargaining. Finally, I attach no weight to the statements
contained in the presentations given by Price or Maruri that are cited by the General Counsel.
As noted, General Counsel has not alleged these statements are unlawful. That being the case,
if Glancey’s presentation itself contained no unlawful statements of futility, then I fail to see how
a lawful statement by another management representative at a different time could convert his
speech to a violation of the Act.
Accordingly, based on the above, I find that the General Counsel has not established
that Respondent, through Glancey, made statements that selection of the Union would be futile,
as alleged in the complaint, and I shall recommend that this allegation of the complaint be
dismissed.
C. Section 8(a)(3) Allegations
Regarding Lee Mabry
The consolidated complaint in Case Nos. 34-CA-11385 and 34-CA-11417 alleges that
Respondent discriminatorily denied Lee Mabry reinstatement following a workers’ compensation
leave of absence, and discriminatorily devised and applied a workers compensation program
light duty policy and a machine operator job description in order to deny Mabry reinstatement.
The Respondent has denied these allegations and offered testimony and evidence at the
hearing purporting to show that the two policies at issue were adopted more than a year before
Mabry requested reinstatement. Respondent further offered evidence that the decision not to
reinstate him was based upon conflicting reports from doctors who had treated Mabry and the
Respondent’s good faith belief that he was not fit to perform the duties of his job. In this

30 Because the standard for determining whether conduct is objectionable is lower than that
for finding a violation of the Act, it follows that if the statement would not be objectionable, it
could not be a unfair labor practice.
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connection, the Respondent has asserted that the Board lacks jurisdiction to determine whether
Mabry was physically able to return to work, as that issue is properly before the Connecticut
Worker’s Compensation Commission.
As noted at the beginning of this decision, it is undisputed that Mabry was perhaps the
leading Union advocate at the Respondent’s facility from the beginning of the campaign in 2001.
As stipulated by the parties, he was “the face of the Union” in the media and was quoted
extensively in newspaper articles, and other media. Mabry’s quotations in these media reports
often appeared in the context of inflammatory allegations against the Respondent. It is clear
from the evidence that this particular campaign has received a great deal of local media
coverage, particularly surrounding the first election and the unfair labor practices and objections
to that election.31 Knowledge of Mabry’s union activity and support can hardly be denied by the
Respondent. The Respondent’s animus toward the Union is demonstrated by the unfair labor
practices found above as well as those found by Judge Biblowitz and adopted by the Board at
347 NLRB No. 41. The General Counsel also proffered evidence, to be discussed, of particular
animus toward Mabry. The issue to be determined here is whether that animus motivated the
Respondent to deny reinstatement to Mabry and if so, whether the Respondent has proved that
it would have denied reinstatement to Mabry even if there were no union activity. See Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982) approved in NLRB v. Transportation Management Corporation, 462 U.S. 393 (1983).
Mabry had been employed by the Respondent since July 8, 1991. He started as a
machine operator and was promoted to mixer operator, the position he was working when he
was injured on July 20, 1998 when a partial pallet of sugar fell off a forklift onto his head. He
suffered a severe cervical spine and neck injury. After being out of work for about a month,
Mabry returned to work operating a labeling machine. This job, located in the office area,
involved very little physical exertion. After a week or two performing this light duty job, Mabry
attempted to return to his old job. He was unable to perform the mixer’s job because of the
amount of lifting required. He returned to his doctor who gave him a note dated August 17,
1998, restricting him to lifting no more than 30 pounds and no overhead lifting. After submitting
this note to the Respondent, he was assigned to the machine operator position, working on one
of the mixer lines. There was much conflicting testimony about the physical requirements of this
job, which I will discuss infra. It is sufficient at this point to note that Mabry was able to perform
the machine operator job, with his doctor’s restrictions, from August 1998 until September 10,
2001, when he went out of work to have surgery on his cervical spine.
It was while Mabry was recovering from surgery that the Union organizing drive began.
Although he was out of work, he was active in the campaign and served as one of the Union’s
observers at the November 29, 2001 election. Mabry returned to work in April 2002, in the same
machine operator position he held before his surgery. He continued to work in that position until
pain forced him to go out on leave again in February 2003. Mabry was out of work this second
time until August 2003. During his absence, Price was hired as Plant Director of the North
Haven facility. When Mabry returned to work this time, he was restricted to lifting no more than
30 pounds with no over the shoulder lifting. Mabry returned to the same machine operator
position he held before. Mabry testified that he was able to perform all the duties of this job
without significant modification or accommodation. Price testified that he informed Mabry’s
supervisors of his medical restrictions and instructed them to make accommodations. None of

31 These are the cases that were settled over the objection of the Union. It appears that,
following the settlement, and in the period immediately preceding the January 2006 election, the
media coverage had significantly diminished.
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these supervisors testified at the hearing. Price also testified that he was aware that Mabry was
unable to perform all parts of the job because he received complaints from machine operators
that they were being required to pick up the slack for Mabry. Price was able to identify only one
employee who complained, Lou Criscuolo. The General Counsel called Criscuolo on rebuttal.
Criscuolo, who has worked for the Respondent in excess of 16 years, was still employed by the
Respondent when he testified. Criscuolo confirmed that he worked on the same line with Mabry
in 2003 but he denied ever complaining to Price about having to carry the load for Mabry. In
fact, Criscuolo denied that he had to perform Mabry’s duties for him.
In October 2003, while still working as a machine operator, Mabry testified in Hartford,
Connecticut at a state legislative hearing regarding the Union’s attempts to organize the
Respondent’s employees and the Respondent’s response. Price also attended this hearing
along with other management officials from North Haven and the Respondent’s corporate
offices. There is no dispute that, shortly after this, Mabry and Price had a conversation in Price’s
office. According to Mabry, Price called him to the office and told him that lies had been told
about the Respondent at the hearing and that this was hurting the company. Price told Mabry
that changes had been made at the plant and that employees were no longer subject to the
abuses Mabry had complained about. Mabry agreed with Price that changes had been made
but he told Price that more needed to be done and the employees needed a union. Price and
Mabry then debated whether the Union’s corporate campaign was having any impact and
whether the employees would be hurt by it. At the end of the discussion, according to Mabry,
Price said that they were never going to agree on these issues and that he was going to fight
Mabry to the end. Mabry responded that he was prepared to fight. Price testified that Mabry
came to see him on his own after the legislative hearing. According to Price, Mabry said he
wanted to make sure there were no hard feelings. Price admits telling Mabry that some of the
things said at the hearing were lies, in particular the accusations that discrimination and
mistreatment of employees was continuing. Price testified that the meeting ended with him and
Mabry agreeing to disagree. He denied that he told Mabry he would fight him to the end. Price
testified that, at some point during this meeting, Mabry said he was only in it for himself, that he
wanted more money and if the Union could get him more money, he didn’t give a damn about
anybody else. I note that such a comment seems inconsistent with Mabry’s activities on behalf
of the Union and his fellow employees since 2001 and somewhat out of character. This
fabrication on Price’s part leads me to discredit his version of the conversation.
Not long after this meeting, on November 17, 2003, Mabry was forced to go out on
worker’s compensation again due to radiating pain and numbness in his arms and fingers. An
independent medical examination ordered by the Workers Compensation Commissioner
presiding over his case found that his surgery had not been entirely successful and that two of
his vertebrae failed to fuse properly. He had a second cervical spine operation on September 1,
2004. While out of work recovering from the second surgery, Mabry continued his involvement
with the Union, walking the picket line with the maintenance employees during their unfair labor
practice strike in May and June 2005 and attending the unfair labor practice hearing before
Judge Biblowitz in November 2005.32 After this hearing, Mabry and others distributed a leaflet
outside the plant informing employees of the case. The leaflet was headlined: “What is Richard
Price afraid of?”33 On December 2, 2005, Price posted in the plant a memorandum to the
employees responding to the Union’s leaflet. In this memo, Price referred to Mabry and other
union supporters who were at the hearing as “our typical few employees who make it a point to

32 Mabry did not testify in that proceeding.
33 The headline apparently referred to Price’s failure to appear and testify at the unfair labor
practice hearing.
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participate in all these events.” Around the same time, during the first half of December 2005,
Mabry began circulating a petition for employees to sign, addressed to the NLRB and
Congresswoman Rosa DeLauro, demanding a Union election “now”. Mabry testified that he
solicited employees to sign the petition in the Respondent’s parking lot and at nearby fast food
restaurants frequented by the Respondent’s employees. The petition was faxed to the NLRB’s
Regional Office and to DeLauro on December 22, 2005, the day after Mabry first attempted to
return to work.
On December 21, 2005, Mabry went to the Respondent’s facility with a note from Dr.
Frank Lee of the Connecticut Spine and Pain Center, who had been providing pain
management treatment to Mabry following his surgery in 2004. Dr. Lee’s note, dated December
20, 2005, listed Mabry’s “present restrictions” as: “no restrictive neck movement. Avoid pushing
and pulling. No lifting for more than 10 lbs.” Mabry found Price in the conference room with
several managers. According to Mabry, Price and Personnel Manager Maria Giaimo came out
of the room into the hallway where Mabry was standing. Mabry handed Price an envelope
containing Dr. Lee’s note saying, “this is my return to work.” Price opened the envelope, read
Dr. Lee’s note and said, “we don’t have anything for you in light duty.” Price told Mabry he would
get a letter notifying him of this fact. Price then escorted Mabry out of the building. The next day,
Mabry received a letter from Price, dated December 21, 2005, which referenced Dr. Lee’s
restrictions and then cited an Independent Medical Evaluation (IME) dated October 24, 200534
as containing the following restrictions:
1. Capable of light duty work.
2. No repetitive use of the neck.
3. No repetitive lifting.
4. No working overhead.
5. No lifting over 20 pounds.
In the letter, Price then stated that the IME report indicated that “maximum medical
improvement may have been reached depending on the results of a bone SPEC scan.” Price
ends his letter by reminding Mabry of their conversation earlier that day in which he told Mabry
that the Respondent did “not have any positions that can accommodate these restrictions.
Please advise us if your work restrictions are modified in the future.”
Mabry testified that, after receiving Price’s letter, he went back to see Dr. Lee because
he wanted Lee to release him to work without restrictions. According to Mabry, he told Dr. Lee
that he had done the job before and knew he could do it. He asked Dr. Lee to release him from
the restrictions in his note. Dr. Lee told Mabry that he was waiting for a job description from the
Respondent. When Mabry contacted Dr. Lee a few days later, he said he had received the job
description and appeared reluctant to talk about it. Dr. Lee let Mabry see the job description that
had been faxed to him by the Respondent, but he refused to give Mabry a copy. On December
27, 2005, Mabry attended a hearing before the worker’s compensation commissioner over the
suspension of his benefits. As a result of this hearing, Mabry went back to see the surgeon who
performed the September 2004 operation, Dr. Alan Waitze. Dr. Waitze ordered a “functional
capacity evaluation” to determine what kinds of work activity he could perform. This evaluation
was done on January 4, 2006.35 Dr. Waitze also referred Mabry to a new doctor for pain

34 This IME was performed by Dr. William Druckemiller at the request of the Respondent’s
compensation carrier.
35 The functional capacity evaluation showed that Mabry was capable, inter alia, of lifting 50
pounds frequently and occasionally more than 50 pounds. He was described as functioning
Continued
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management, Dr. Kloth, because Mabry no longer had confidence in Dr. Lee.
On April 4, Dr. Kloth gave Mabry a release to return to work on April 10 with no
restrictions. On April 10, Mabry went to the Respondent’s facility with this release. He met with
Price and Giaimo in the office area of the plant. According to Mabry, Price told him that the
matter needed to be evaluated and that Mabry would be notified of the results of the evaluation.
Nothing more was said and Mabry left the facility. A few days later, Mabry received a letter from
Giaimo requesting that he sign a release so that the Respondent could obtain his medical
records and talk to his four most recent physicians. In her letter, Giaimo explained that the
Respondent was unfamiliar with Dr. Kloth, that it appeared he had not treated Mabry before,
and his release without restrictions was different from reports of other doctors who had imposed
restrictions on Mabry’s work activities. Giaimo expressed concern for Mabry’s well-being and a
reluctance to return him to work where he might re-injure himself. She informed Mabry that after
conferring with his doctors and evaluating the situation, the Respondent would determine
whether he could return to work.36 On May 18, after communicating with his worker’s
compensation attorney and the attorney communicating with the Respondent’s labor counsel,
Mabry signed the release, as modified by his attorney.
Mabry heard nothing further from the Respondent regarding his request to return to work
until October 14, shortly before the hearing in this case opened. On that date, he received a
Federal Express package containing a letter from Macey, who had succeeded Price as Plant
Director in July. Macey informed Mabry that Dr. Kloth had submitted an accommodation
assessment form at the Respondent’s request which indicated that Mabry could not lift more
than 20 pounds and could not push or pull more than 50 pounds.37 Macey stated in the letter
that the Respondent did not have any positions that could accommodate these restrictions.
Macey went on to state that, based on his interpretation of the medical reports from Dr.
Druckemiller and Dr. Waitze in 2005 as indicating Mabry was at “maximum medical
improvement” with a “permanent partial disability”, he was not eligible for the Respondent’s light
duty program. Macey did not explain or elaborate regarding the decision-making process after
he took over from Price in July 2006. He merely testified that he based his decision not to return
Mabry to work on Dr. Kloth’s responses on the assessment form and the Respondent’s light
duty policy.
Price testified regarding his response to Mabry’s December 21, 2005 request to return to
work. According to Price, when he and Giaimo met with Mabry, he asked who was Dr. Lee
because he was not familiar with him as one of Mabry’s doctors. Price claims he also asked
Mabry if he had explained to Dr. Lee the demands of his job and Mabry responded that he had.
Price testified he then asked Mabry if it was okay for Price to speak to Dr. Lee to clarify the
restrictions in his note and, again, Mabry responded affirmatively. Price claims he wrote the
December 21 letter to Mabry after this meeting and before speaking to Dr. Lee because he
thought there were discrepancies in Dr. Lee’s note. On cross-examination, Price claimed that,
after Mabry left the facility, he asked Giaimo to retrieve Mabry’s compensation file. It was while
reviewing the file that he came across Dr. Druckemiller’s IME with the apparently inconsistent
work restrictions. As previously noted, Giaimo did not testify to corroborate Price’s version of
_________________________
within the heavy physical demand level. There is no evidence that the Respondent ever saw this
report.
36 Giaimo did not testify at the hearing.
37 As General Counsel points out in her brief, Macey’s characterization of Dr. Kloth’s
restrictions was not completely accurate. Dr. Kloth wrote on the assessment form that Mabry’s
capacity for pushing and pulling would be increased “if on wheels.”
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events. In addition, in the December 21 letter, Price confirmed that he told Mabry there was no
work for him before undertaking any investigation, including the review of Mabry’s file. I also
note, as pointed out by counsel for the General Counsel and the Charging Party, that Price’s
manner of answering questions about his response to Mabry’s request, by using the plural “we”
and the conditional tense, “would have” did not instill confidence that his answers were a truthful
recounting of events. It appeared more along the lines of a studied attempt to conceal what
really happened. It is also noteworthy that Price consulted with the Respondent’s corporate
offices and labor counsel in response to Mabry’s request. This was a departure from the way in
which a return to work by employees on worker’s compensation is customarily handled.
According to Price, such matters are usually handled by the Human Resources department in
consultation with the Respondent’s compensation insurer.
Price admitted contacting Dr. Lee after Mabry submitted his release to return to work,
which is also not his customary response to a request to return to work. According to Price, he
asked Dr. Lee if Mabry had disclosed to him the physical demands of his job. When Dr. Lee said
he had not, Price faxed a copy of the machine operator job description to him. This is the job
description that General Counsel alleges was concocted to deprive Mabry of reinstatement.
Price testified further that at the time Mabry made his request to return to work, the Respondent
was operating under a workers compensation light duty policy that had been adopted in 2004.
Under this program, light duty is only temporary, limited to 60 days, and not available to
employees who have a permanent disability preventing them from returning to full duty. Price
testified that he interpreted the reports in Mabry’s file as indicating his restrictions were
permanent. General Counsel has also alleged that this light duty program was discriminatorily
adopted and applied to Mabry to deny his return to work.
Price testified that he created the light duty policy, which he relied on as a basis for
denying reinstatement to Mabry, in early 2004. According to Price, there was no policy in place
when he arrived at the plant. At that time, the Respondent’s practice was to reinstate anyone
who returned to work with a doctor’s note after an injury, whether or not the injury was work-
related, without limit to how long the employee could remain in a light duty assignment. Price
testified that this created problems for other employees who had to pick up the slack for the
injured employee. Price plagiarized the new policy from one that had been in place at Pillsbury,
one of his previous employers. The new policy, which purports to have an effective date of
February 2004, provides in pertinent part:
Chef Solutions in North Haven, Connecticut recognizes the value of permitting
employees returning from illness or injury to temporarily work on a light duty basis.
Light duty placement may include a reduction of work hours, limiting or altering
duties in the employee’s existing position, or temporarily reassigning the employee
to another position, which he or she is qualified and capable to perform under a
qualified physician’s restrictions.
Under this policy, “temporary” has been defined as not to exceed more than sixty
(60) days for non-recurring illness and/or injury. This “light duty” policy does not
recognize “permanent” light duty work, but will make accommodations under the
ADA.
In cases where an employee has had an on-the-job injury/illness, the employee’s
supervisor in conjunction with the Human Resource department shall fully consider
and attempt a light duty placement of the injured/ill employee for no more than sixty
(60) days. If within sixty (60) days after their return to work on light duty the injured/ill
employee is unable to perform the full scope of the duties of their regular full-time
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position because of ongoing medical restrictions, the individual will be released from
light duty and placed on full-time workers compensation. These individuals will not
be allowed to return to work to full-duty until they are fully released without
restrictions by a qualified medical provider.
The policy also treats non work-related injuries differently.
Price testified further that this new policy “would have been communicated” to
employees at an employee communication meeting and “would have been posted” on a bulletin
board immediately after the meeting. Such postings usually remain on the board for about a
week. After that, the policy would be kept in the Human Resources department with all the other
company personnel policies. According to Price, he “probably would have communicated” this at
a meeting in late January 2004, shortly before the policy was to go into effect. Price didn’t
believe copies of the policy were distributed to the employees. The only witness to corroborate
Price regarding the dissemination of the light duty policy was Supervisor Jennifer Rodriguez.
She testified that she attended a meeting at which Price presented the policy to the employees.
She also claimed to have seen it posted on the bulletin board. She could not recall any details of
this meeting beyond her “corroboration” of Price’s testimony about the policy. Jennifer
Rodriguez also admitted that she did not keep a copy of the policy in her office, even though
under the policy she would have had a role in placing employees in a light duty assignment. She
also admitted that she had not seen the policy since it was allegedly adopted in early 2004 until
she testified at the hearing. Significantly, neither Giaimo, the local Human Resources manager
whom Price claimed was involved in the adoption and maintenance of the policy, nor Glancey,
who was the corporate Human Resources official with whom Price would have consulted before
adopting such a policy, testified about this policy. None of the employee witnesses who testified
for the General Counsel had ever seen this policy.38
Price conceded that, after allegedly adopting the light duty policy in early 2004, he had
not reviewed it or otherwise taken any steps to ensure it was being followed until Mabry’s return
to work became an issue in December 2005. According to Price, the Human Resources
department normally handles these matters. Records from employees’ personnel files that
General Counsel obtained by subpoena and placed in evidence show that the 60-day limit had
not been strictly followed since the policy allegedly went into effect. The General Counsel in her
brief cites 12 employees who remained in light duty assignments in excess of 60 days, including
several who had multiple light duty assignments during this period. Significantly, the
Respondent called no one from the Human Resources department to testify about the policy or
its application to Mabry and other employees.
Having considered the evidence in the record regarding the “light duty policy”, I conclude
in agreement with the General Counsel and the Charging Party that there is no credible
evidence to establish that this policy was in fact adopted in 2004 and applied at any time before
Mabry sought to return to work. In particular, I draw an adverse inference from the
Respondent’s failure to call Giaimo to testify about this matter, which was admittedly within her
jurisdiction, and the failure to ask any questions of Glancey, the corporate Human Resources
official who would be in a position to corroborate the existence of such a policy. I also note the

38 Respondent argues that there would have been no reason for these employees to be
aware of the policy since none of them had suffered a work-related injury after the policy was
adopted. However, Respondent’s own witnesses claim that all employees were made aware of
the policy through the meeting and posting. Under these circumstances, it is significant that no
employee ever heard of it.
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total lack of any objective evidence that would corroborate Price’s testimony regarding the
adoption and implementation of this policy. See Daikichi Sushi, 325 NLRB supra at 622 and
cases cited there. Finally, the frequent exceptions to the 60-day limit on light duty assignments
documented in the Respondent’s own business records shows either that no such policy existed
or that it was not routinely enforced. Either way, it is clear that Mabry’s request to return to work
was treated differently than that of other employees.
Price also relied upon a job description for the machine operator position that Mabry
previously held as a basis to deny him reinstatement. As noted above, he faxed this job
description to Dr. Lee in an attempt to show that Mabry could not perform the duties of this job
under Dr. Lee’s restrictions. As with the light duty policy, Price claimed that he created this job
description with others in late 2003-early 2004. The impetus for this action was a wage increase
that Price sought to give the employees. In order to justify a change in the wage scale, Price
had to create job descriptions justifying more money by showing differentiation in job skills and
greater accountability. Price testified that he completed this task in time for the 2005 wage
increase, which was implemented at the beginning of that year.
Price testified that the job descriptions which existed when he came to the plant were
very general and contained no ergonomic details, such as lifting requirements. He began the
task of re-defining the jobs at the North Haven plant by soliciting other plants within the
company to send him their job descriptions. Price identified an October 2004 e-mail he received
from the engineering manager at a facility in Thorofare, New Jersey as being part of this
process. Although Price claimed to have gotten information from other plants that he used in
compiling the job descriptions, he did not save any of this information. Nor was the Respondent
able to produce the more general job descriptions that Price claimed existed when he arrived at
the North Haven facility.
Price testified further that, as part of the process, he monitored the jobs in the plant with
Macey, “probably” also reviewed equipment manuals, and consulted with supervisors on the
job, like Jennifer Rodriguez.39 He then used a template he got from the Respondent’s corporate
office and drafted a number of job descriptions, including the one for the machine operator
position that he identified. Although Price claimed that he did not need corporate approval to
change the job descriptions, he needed these job descriptions to obtain approval for the
changes in the wage scale that he wanted to implement. Consequently, Price had to make a
report to Glancey and Janie Mirkin, another official in the corporate Human Resources
department to explain the justification for the new wage scale. Although Price claims he used a
handout in making this report, he testified that he did not include the new job descriptions in the
handout. He merely described, orally, the differences in the jobs that warranted different pay.40
When Price obtained approval for the wage adjustments, he met with the employees to
communicate the news to them. Price “didn’t think” he disseminated the new job descriptions to
the employees at the same time. According to Price, when the job descriptions were done, he
merely gave them to the Human Resources department where they were maintained. No other
witnesses were called to testify regarding the maintenance and application of these job
descriptions. In addition, none of the employee witnesses had seen the particular job description
at issue before. Rodriguez herself testified that she was never given a copy of any of the new
job descriptions, despite here position as a supervisor. Even Macey, the Operations Manager at
the time Price allegedly re-defined the job descriptions, testified that he did not see the job
description until the summer 2005.

39 Neither Macey nor Jennifer Rodriguez corroborated this testimony.
40 Glancey was not asked any questions about this process.
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The machine operator job description that Respondent relies upon includes, in the
“general description” section, the following requirements:
The position requires a minimum weight lifting of 50 pounds. Pushing and pulling of
250 pound racks and/or flour receptacles. There is continuous movement, i.e.
bending, twisting, climbing and lifting.
This format differs from that of other job descriptions that were created at the same time. Unlike
the machine operator position, the specific requirements of the job are not listed in the “general
description” section. In addition, the other job descriptions do not contain the same degree of
specificity as to physical requirements. For example, although the Respondent’s witnesses
described the heavy physical demands of the scaler position, the job description for that position
in evidence is devoid of these physical aspects of the job. Similarly, although Macey testified
that the packer has to lift scrap buckets, its job description contains no weight requirement. The
testimony of Macey and Price suggests that the mixer position is physically taxing, with frequent
heavy lifting, bending and climbing, yet these physical aspects of the job are not in the job
description.
Most significant with respect to the credibility of Price’s testimony regarding the disputed
job description is the evidence from Respondent’s own records showing that, not long before
Mabry’s request to return to work, the Respondent faxed a different machine operator job
description to the Respondent’s worker’s compensation insurance carrier in a case involving a
different employee. On November 9, 2005, Zelina Rosa, who was identified as a Human
Resources Assistant working in Giaimo’s office with responsibility for handling communications
with the carrier, faxed a job description which contained none of the weight requirements and
repetitive movement requirements that appear in the job description that Price faxed to Dr. Lee
and that the Respondent relies upon in this case. In addition, in August 2005, Rosa faxed a
completed “Job Requirement” form to the insurance carrier itemizing the job duties of machine
operator Juan Serrano. The information Rosa provided on this form is inconsistent with the
machine operator job description that Price claims he created in 2004. In the form faxed by
Rosa, the machine operator position requires occasional lifting of 11-25 pounds and occasional
pushing and pulling, squatting, climbing and reaching above the shoulder with no carrying and
simple grasping.
As previously noted, Respondent offered the testimony of Price and Macey to describe
the physical requirements of the job that Mabry held before his injury. In almost every respect,
they contradicted the testimony of Mabry and David Armstead, the mixer who is familiar with the
job because of the close proximity of his work location at the head of the production line. In
addition, the machine operator and mixer frequently work together to ensure the line is running
smoothly. As between the Respondent’s witnesses and the General Counsel’s witnesses, I
found Armstead’s and Mabry’s description of the job more realistic and credible. Their
description is also consistent with the company documents cited above that the Respondent’s
Human Resources department used in its dealings with the compensation carrier, which is the
most objective evidence regarding the requirements of the machine operator position.
As described by Armstead and Mabry, the machine operator job essentially involves
cleaning and maintaining the machine which takes the dough mixed by the mixer operator and
forms it into rolls to be frozen and shipped to the Respondent’s customers. The work involves
lifting buckets of scrap which, when properly filled, weigh less than 35 pounds, and pushing a
wheeled rack of scrap buckets to the mixer to rework the scrap into a batch of dough. The
machine operator is also required to regularly clean out trays of excess flour or dough; adjust,
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clean and change the plates that form the dough balls into cylinders; and periodically clean
other parts of the machine. The machine operator is also required to fill a wheeled barrel with
flour from the flour silo. Although obviously some lifting is required, it is nowhere near the
minimum of 50 pounds that Price described in the job description he faxed to Dr. Lee. Price’s
attempt to explain his use of the phrase, “minimum weight lifting of 50 pounds” defied belief and
came down to the rare occasion when a machine operator might have to lift 50 pound bags of
flour to help the mixer operator, who has the ultimate responsibility for adding flour to the mix.
This patent exaggeration was evident throughout Price’s testimony and was continued during
Macey’s testimony.
As the General Counsel argues, the testimony of the Respondent’s witnesses was
tailored to rely upon the exceptions to the normal routine of a machine operator to make it
appear that the physical demands of the job were beyond Mabry’s capabilities. Perhaps most
telling was the testimony of Rene Caporal, Gustavo’s brother who has worked at the North
Haven plant for about 15 years. He has been a machine operator for the last 3-4 years,
performing the job at issue in this proceeding. Significantly, Caporal suffered a major injury on
the job in 1999 in which his right hand was severed. Although doctors were able to re-attach his
hand, he continues to have only 60-70% use of his dominant right hand. Nevertheless, he is
able to do the very job the Respondent denied Mabry, albeit with some help from his co-
workers. I found Rene Caporal’s description of the duties of the job far more credible than
anything said by Price or Macey. I conclude based on the credible and objective evidence in the
record that Respondent fabricated a new job description with enhanced physical requirements,
which did not reflect the true demands of the job, in order to prevent Mabry from returning to
work.
The above recitation of facts shows that, in at least two respects, the Respondent
treated Mabry’s request to return to work differently than that of other employees. Specifically,
the Respondent applied the previously ignored 60-day limit on light duty assignments and
fabricated a more physically demanding job description to deny him reinstatement. The General
Counsel offered other examples, culled from the Respondent’s business records, showing other
employees with work-related injuries were reinstated upon a medical release notwithstanding
restrictions that were similar to or greater than those prescribed by Mabry’s doctors.41 These
records show that even employees with a “permanent partial disability rating” or who had
reached “maximum medical improvement”, factors cited by the Respondent’s witnesses as fatal
to Mabry’s efforts to return to work, were permitted to return either to a light duty assignment or
to their previous jobs with accommodations.42 In addition to the documentary evidence,
testimony from several of the General Counsel’s witnesses revealed evidence of disparate
treatment. For example, Ricardo Rodriguez testified that Moses Robertson, an employee from
the packing department, worked with him in the quality control department after an injury on the
job in December 2005, around the same time that Mabry sought to return to work. Ricardo
Rodriguez testified without contradiction that his supervisor, Jennifer Rodriguez told him that
Robertson was to work “light duty”, just doing paperwork in the office. Robertson continued to
perform light duty for a couple months.
Under the Board’s Wright Line test, applicable to Section 8(a)(3) allegations like the one
at issue here, the General Counsel must first show by a preponderance of the evidence that

41 See, e.g., the worker’s comp. records of machine operators Victoria Palma, Juan
Sanchez, Hugo Xoxoyotl, Julian Serrano and Cristano Rodriguez.
42 See, e.g., the worker’s comp. records of Juan Sanchez and the testimony of Rene
Caporal.
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protected activity was a motivating factor in the Respondent’s decision to deny Mabry’s request
to return to work. If the General Counsel meets this burden, then the Respondent must show it
would have made the same decision even in the absence of protected activity. 251 NLRB supra
at 1089. Accord: United Rentals, Inc., 350 NLRB No. 76 (August 24, 2007). The Board has said
that it is not enough for the Respondent simply to present a legitimate reason for its action.
Rather, the Respondent must persuade, by a preponderance of the evidence, that it in fact
acted upon that reason. Wright Line, supra. As noted at the beginning of this section of the
decision, the elements of General Counsel’s prima facie case are amply supported by the
record here. Mabry’s role in the Union’s campaign is undisputed, knowledge of his activity is
admitted and general anti-union animus has been demonstrated here and in the prior case by
unfair labor practice findings. I also note there is credible evidence of particularized animus
toward Mabry in Price’s statement to Mabry in October 2003 that he would find him to the end
over the Union. Finally, the evidence described above showing that Mabry’s request to return to
work was treated differently than that of other employees is sufficient to persuade me that
Mabry’s union activities were a motivating factor in the Respondent’s decision to deny him
reinstatement.43
Having already discredited the testimony of Price regarding the light duty policy and
machine operator job description, it is apparent that Respondent’s asserted reasons for denying
Mabry’s request were a pretext. As noted, there was no consistently applied light duty policy
that would have prevented Mabry’s return to work and the job description was doctored to
exaggerate the physical demands of the machine operator position to make it impossible for any
doctor to release Mabry to this job. The Respondent argues that it had no choice but to deny
Mabry’s request in December 2005 and again in April because of the conflicting evidence from
Mabry’s doctors. While this argument at first blush has some appeal, it is clear that it is not the
true reason the Respondent refused to return Mabry to work. Thus Price told Mabry he had no
work for him on December 21 before he even reviewed Mabry’s compensation file and before
even being aware that there were conflicting reports. Moreover, Price told Mabry there was no
light duty work even though at the same time the Respondent had provided another employee,
Moses Robertson, with light duty. Even assuming the Respondent had some legitimate concern
about Mabry’s ability to perform the machine operator job, this concern should have been
resolved by the time the Respondent received Dr. Waitze’s report in October, showing that
Mabry was capable of performing the job as it had been described in the job description and job
requirement form utilized by the Respondent’s Human Resources department.
Having found that the Respondent’s asserted reason is a pretext and was not actually
relied upon to deny Mabry’s request to return to work, it follows that the Respondent has not
met its burden of persuasion under Wright Line, supra. United Rentals, Inc., supra, and cases
cited there. Accordingly, I find that Respondent’s refusal to allow Mabry to return to work, since
December 21, 2005, violated Section 8(a)(3) and (1) of the Act. In addition, I find that the
Respondent’s reliance upon a light duty policy that either did not exist or was routinely ignored
and its fabrication of a false job description to prevent Mabry’s return to work independently
violated Section 8(a)(3) and (1) of the Act because they were a pretext for discrimination.
Finally, I reject the Respondent’s argument that the Board lacks jurisdiction to decide
this issue because of a state statute that provides that the Connecticut Worker’s Compensation
Commissioner has the authority to determine an employee’s work capabilities. Whatever

43 In fact, as the Charging Party points out, there is no evidence in the record that the
Respondent has ever denied an employee’s request to return to work upon being released to
return by his doctor, regardless of the restrictions.
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authority is conferred by the state statute would not deprive the Board of carrying out its function
of determining whether this Employer had discriminated against an employee in violation of the
Act. The Connecticut Worker’s Compensation statute and the National Labor Relations Act
address different issues which are not in conflict. Nothing in this decision would interfere with
the Commissioner determining in a proceeding before it whether Mabry is entitled to
compensation for a work-related injury.44
III. Petitioner’s Objections to the Election
At the re-run election in Case No. 34-RC-1925 that was held on January 20, the Union
lost by a vote of 84-54 with one nondeterminative challenged ballot. On January 26, the Union
timely filed Objections to Conduct Affecting the Results of the Election. On May 22, the Acting
Regional Director issued a Report on Objections in which he directed that Petitioner’s
Objections 1, 2, 3, 4, 6, 8, 13, 14, 15 and 16, and the additional unalleged objectionable conduct
alleged in paragraph 11 of the consolidated complaint in Case Nos. 34-CA-11385 and 34-CA-
11417, be consolidated for hearing with that complaint. The Board, in an unpublished Order
dated August 23, after considering the Employer’s exceptions to the Report, affirmed the Acting
Regional Director’s determination to send these objections to hearing. Based upon the Board’s
Order, the following Objections are thus before me for determination45:
1. The Employer discriminated against Lee Mabry, a well-known, open, leading
Union supporter, for the purpose of discouraging employees from supporting the
Union, by refusing to permit him to return to work.
2. The Employer issued a letter to employees, telling them that “we insist” that the
employees vote against the Union.
3. The Employer threatened employees with the loss of benefits if the Union won
the election.
4. The Employer interrogated employees about their Union activities and
sympathies.
5. [withdrawn]
6. The Employer threatened to close the plant if the Union won the election.
7. [withdrawn]
8. The Employer threatened employees with termination if they supported the
Union.
9. [withdrawn]
10. [withdrawn]
11. [withdrawn]
12. [withdrawn]
13. The Employer prohibited employees who supported the Union from distributing
Union literature on Company premises.

44 The Respondent has not proffered, nor relied upon, any finding or decision of the
Worker’s Compensation Commissioner that would establish that Mabry was incapable of
performing either his machine operator position or any light duty position the Respondent had.
45 At the beginning of the hearing, I ruled that the critical period for considering objections in
this case, consistent with existing Board law, runs from the date of the last election, November
29, 2001 to the date of the re-run election, January 20. See Double D Construction, 339 NLRB
303 (2003); Star Kist Caribe, 325 NLRB 304 (1998); Times Wire & Cable Co., 280 NLRB 19, 20
(1986); Singer Co., 161 NLRB 956 (1966). The Respondent had sought to limit the critical
period to the time between the agreement to schedule a re-run election, in December 2005 and
the election date.
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14. The Employer threatened to deny employees raises if they selected the Union
as their collective bargaining representative.
15. The Employer issued warnings to employees because of their Union activity.
16. The Employer failed to reinstate unfair labor practice strikers to their former
positions of employment.
I have already found above that Respondent, through Jennifer Rodriguez, interrogated
employee Ricardo Rodriguez regarding his union activities and support on two occasions
between January 10 and the date of the election, and threatened him with plant closure on
January 10. Based on these findings, I shall recommend that Objections 4 and 6 be sustained.
I have also found above that Respondent, through Macey, threatened employees with loss of
benefits during at least two meetings he conducted in the second week of January. Based on
this finding, I shall recommend that Objection 3 be sustained. I shall further recommend that
Objection 1 be sustained based on my finding that the Respondent discriminated against Mabry
by denying him permission to return to work since December 21, 2005. Having found that Price
did not threaten Borukhovich with termination at the employee communication meeting in early
January, I shall recommend that Objection 8 be overruled. Based on my recommendation that
paragraph 11 of the complaint, alleging that Glancey made unlawful statements of futility during
his meeting, be dismissed, I shall recommend that this unalleged objection be overruled.
Objections 15 and 16, as determined by the Acting Regional Director, are identical to
conduct already found unlawful by the Board at 347 NLRB No. 41. Those allegations relate to
the Respondent’s treatment of maintenance department employees Toporovsky and
Borukhovich in late May and early June 2005, more than seven months before the election.
While somewhat remote in time, these unfair labor practices had not been remedied when
employees voted on January 20. Indeed, Administrative Law Judge Biblowitz’ decision finding
the unfair labor practices, had just issued on January 19. Under these circumstances, I shall
recommend that Objections 15 and 16 be sustained.
Objections 13 and 14, as determined by the Acting Regional Director, are identical to
allegations contained in the consolidated complaint that issued in Case Nos. 34-CA-10981 and
34-CA-11029 on January 5, 2005, more than a year before the election. This is the complaint
that was resolved by a formal settlement agreement with a non-admissions clause on March 17,
2005. Because the settlement agreement is not proof of the conduct alleged, the Charging Party
offered evidence to prove these objections here. I find it unnecessary to determine whether the
conduct occurred as alleged in the objections because these events are too remote in time to
have affected the results of the January 20 election. The evidence offered in support of
Objection 13 indicates that the alleged prohibition of employees’ distribution of Union literature
on company premises occurred on September 28, 2004. The evidence offered in support of
Objection 14 was a notice posted on November 10, 2004 announcing that “all non-union
employees in good standing” would receive a raise effective January 2, 2005. Conduct
occurring more than a year before the election could not have affected the results. Accordingly I
shall recommend that Objections 13 and 14 be overruled.
The sole remaining objection (Objection 2) relates to a letter in Spanish that was sent to
all Spanish-speaking employees on January 6, two weeks before the election. There is no
dispute that this letter, signed by Plant Director Price, was sent to at least half the employees in
the Unit whose primary language is Spanish. The following sentence appears in the letter:
La ley dice ques usted tiene el derecho de no apoyar la union y nosotros insistimos
a usted que no lo hago.
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(emphasis added). The English version of this letter, sent to employees at the same time,
translates this sentence as follows:
The law says that you have the right not to support the union and we urge you not
to.
The Charging Party called Dr. Lillian Uribe, Professor of Spanish and Chairman of the
Modern Languages Department at Central Connecticut State University, as an expert witness.
Dr. Uribe is also a native of Uruguay and Spanish is her primary language. Dr. Uribe testified
that “insistimos” literally means “we insist” and that this is an emphatic statement in Spanish. Dr.
Uribe testified that there is no literal translation for the word “urge” that appears in the English
version of the letter. While acknowledging that “insistimos” could be used as a translation for
this phrase, she testified that there are other phrases in Spanish that carry a less forceful tone.
Dr. Uribe testified that, were she to translate “we urge”, she would use the verb “pedir”, i.e. to
ask, with an adverb to make it stronger.
The Board applies an objective standard to determine whether conduct warrants setting
aside an election. It is not necessary to show that the conduct was intentional or actually had an
affect on the election. The inquiry is whether the conduct has a tendency to interfere with
employees’ free choice. Lake Mary Health & Rehabilitation, 345 NLRB No. 37, slip op. at p. 2
(August 27, 2005) and cases cited there. As with alleged violations of Section 8(a)(1), the Board
considers such statements from the point of view of the employee and how an objective
employee receiving this letter would understand the statement. See NLRB v. Gissel Packing
Co., 395 U.S. supra, at 442.
I find that the Spanish version of the letter, with its use of language that conveys the
message that the Employer is insisting that employees not support the Union, is objectionable.
The Board has held that “an instruction, admonition, or warning to an employee, express or
implied, not to get involved in activities protected by the Act interferes with, restrains, and
coerces employees in the exercise of their rights under the Act.” Management Consulting, Inc.
(MANCON), 349 NLRB No. 27, slip op., at p. 1 (January 31, 2007) and cases cited there. If such
statements would be found unlawful under Section 8(a)(1), as was the case there, then a fortiori
they meet the test for objectionable conduct. Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
Accord: IRIS U.S.A., Inc., 336 NLRB 1013 (2001). Accordingly, I shall sustain Petitioner’s
Objection 2.
Having sustained those objections which parallel the unfair labor practice findings here
and in the prior Board decision, it necessarily follows that the election should be set aside.
NYES Corp., 343 NLRB 791, fn. 2 (2004); IRIS U.S.A., Inc., supra; Dal-Tex Optical Co., supra.
Although several of the unfair labor practice affected only one or a small group of employees,
the threat by Macey was made at two employee meetings attended by at least 30 unit
employees. In addition, the letter containing the objectionable statement insisting that
employees not support the Union was sent to at least half the unit who spoke Spanish. I find
that this Objection alone would suffice to warrant a new election. Accordingly, I shall
recommend that the January 20, 2006 election be set aside and a new election conducted after
the Respondent has remedied the unfair labor practices found here.
Conclusions of Law
1. By interrogating employees about their union activities, and by threatening employees
with plant closure and the loss of benefits if they selected the Union as their collective
bargaining representative, the Respondent has engaged in unfair labor practices affecting
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commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By denying, since December 10, 2005, Lee Mabry’s request to return to work
following a worker’s compensation leave of absence, and by relying upon a light duty policy that
did not exist or was unenforced and a job description that was exaggerated to deny him
reinstatement, the Respondent has discriminated against its employees with regard to their
terms and conditions of employment based upon their union membership and activities and has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
3. Respondent has not engaged in any other unfair labor practice as alleged in the
complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondent having discriminatorily denied Mabry’s return
to work since December 10, 2005, it must offer him reinstatement to his job as a machine
operator or to a light duty assignment consistent with any medical restrictions imposed by a
physician, and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Because I have found that
the Respondent discriminatorily modified the machine operator job description to prevent
Mabry’s return to work, it should be ordered to rescind the job description that was faxed to Dr.
Lee as described above. With respect to the light duty policy that I have found did not exist or
was not applied, Respondent should rescind the policy until such time as it has remedied the
discriminatory refusal to reinstate Mabry.
In addition to the traditional remedies for the Section 8(a)(1) and (3) violations found
here, the General Counsel has requested additional remedies to cure the effects of the
Respondent’s unlawful conduct. Specifically, the General Counsel seeks an order requiring that
the Respondent:
1. Direct its Plant Manager, Production Manager, or Corporate Vice President for
Human Resources to read the notice to employees during working time, with an
interpreter, if necessary, and with a Board agent present during the reading.
2. Supply the Union with unit employees’ names and addresses, updated every six
months;
3. Allow the Union reasonable access to bulletin boards and to all places where
notices to employees are customarily posted.
4. Provide the Union with notice of, and equal time and facilities for the Union to
respond to, any employer address to employees about union representation.
The General Counsel further requests that provisions (2), (3) and (4) remain in effect for
two years from the date of notice posting, or until the Union is certified as the employees’
bargaining representative following a free and fair election, whichever occurs first.
In support of this request, the General Counsel cites the Respondent’s history of
unfair labor practices, as evidenced by the Board’s decision in Pennant Foods Co., 347
NLRB No. 41, supra, and the serious nature of the unfair labor practices found here. The
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General Counsel argues further that special remedies are necessary here because the
Respondent has committed these unfair labor practices after previously having entered into
two settlement agreements, including one formal settlement agreement that provided for
special remedies similar to those requested here. Although I previously rejected the
settlement agreements as evidence when proffered at the hearing, I have considered them
as part of the history of the case.46 In addition, I permitted testimony from witnesses
regarding the reading of the notices which was part of the prior settlement. The General
Counsel argues that, while these agreements are not proof of prior unfair labor practices,
they “set the remedial bar” for future violations. The failure to impose similar remedies here,
when the Respondent has engaged in unfair labor practices following execution of such a
settlement agreement would be a step backward in ensuring that employees’ Section 7
rights are vindicated.
The unfair labor practices found in this case, if viewed in isolation, would probably
not warrant the special remedies sought by the General Counsel. The two acts of
interrogation and the threat of plant closure were directed at one employee and there is no
evidence of widespread dissemination of these unfair labor practices. The only unfair labor
practice directed at a group of employees was Macey’s threat of loss of benefits which has
been proven to be made at two meetings with at least 30 employees present. Thus, unlike
some of the cases cited by the General Counsel, the threats of plant closure and other
adverse consequences of unionization were not made at meetings of the whole unit or in
literature distributed to all employees. While the discriminatory treatment of Mabry, the “face
of the Union”, could be expected to have a chilling effect on other employees, a
reinstatement and make-whole remedy would normally be sufficient to remove the chill.
That being said, the unfair labor practices found here can not be considered in a vacuum.
The Respondent has a documented history of violating the Act, with unfair labor
practices having been found after a hearing and affirmed by the Board. These unfair labor
practices occurred within a year of the unfair labor practices found here. In addition, the
Respondent’s proven unfair labor practices all occurred after it had entered into a formal
settlement stipulation which required the Respondent to read the Notice to employees and
afford access to the Union similar to that requested here. Clearly, the prior remedies, even
though voluntarily adopted, were not sufficient to prevent the Respondent from violating the
Act. Under these circumstances, something more is required than the traditional notice
posting to ensure that the Board’s processes are not for naught.47
Accordingly, I find that the special remedies sought by the General Counsel are
appropriate for the unfair labor practices found here and shall recommend that the
Respondent read the notice and provide the Union access to its employees as requested
by the General Counsel. See Homer D. Bronson Co., 349 NLRB supra, slip op., p. 4 and
cases cited there. With respect to the special access provisions of the order, these are
necessary because a third election must now be held due to objectionable conduct which

46 Accordingly, I shall reverse my ruling and receive the proffered exhibits, not as proof of
any unfair labor practice alleged in those cases, but for the limited purpose described here.
47 While the prior settlement agreement, with its non-admission clause, is not proof that the
Respondent committed any unfair labor practices, it is relevant history to consider in
determining whether traditional remedies will be effective. The fact is, whether the Respondent
committed any unfair labor practice, it voluntarily agreed that it would not violate the Act and
even read the notice to employees assuring them it would not. Then, as found here and in the
prior case, it committed unfair labor practices.
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includes the unfair labor practices. These additional measures will help to ensure that
employees can exercise their right to vote in an atmosphere free of unlawful interference.48
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended49
ORDER
The Respondent, Pennant Foods Company, a wholly-owned subsidiary of CS Bakery
Holdings, Inc., a wholly-owned subsidiary of Chef Solutions Holdings, LLC, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union support or union activities.
(b) Threatening employees with the loss of their benefits and plant closure if they select
a union to represent them in collective bargaining.
(c) Denying reinstatement to, and otherwise discriminating against, any employee for
supporting the International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, AFL-CIO (the Union), or any other labor organization.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Lee Mabry full reinstatement
to his former job as a machine operator or to a light duty assignment consistent with any
medical restrictions imposed by a physician, or, if his former job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(b) Make Lee Mabry whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(c) Rescind the Machine Operator job description and the Worker’s Compensation Light

48 In its brief, the Charging Party has requested reconsideration of my ruling denying its
request for a bargaining order. I adhere to my earlier ruling. In addition, even assuming the
Charging Party could demonstrate a card majority in 2001, when it filed the petition, the unfair
labor practices found here and in the prior Board decision, which occurred in 2005 and 2006,
would not be sufficient to warrant such an extraordinary remedy. I also note that the passage of
time since the Union obtained majority support would make enforcement of any bargaining
order unlikely. See Homer D. Bronson Co., supra, slip op., p. 4.
49 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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Duty Policy that was utilized to deny Lee Mabry reinstatement in December 2005.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful denial of reinstatement, and within 3 days thereafter notify Mabry in
writing that this has been done and that the December 2005 and April 2006 denial of
reinstatement will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facility in North Haven,
Connecticut, copies of the attached notice marked “Appendix”50 in both English and Spanish.
Copies of the notice, on forms provided by the Regional Director for Region 34, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since December 21, 2005.
(g) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to
ensure the widest possible attendance, at which the attached notice is to be read to the
employees by the current plant director, production manager or corporate vice president for
Human resources, with translation available for Spanish-speaking employees, and with a Board
agent present during the reading.
(h) Within 14 days from the date of the Board’s Order, supply the Union the full names
and addresses of current unit employees at the North Haven facility, updated every six months,
for a period of two years from the date the Notice is posted, or until the National Labor Relations
Board has issued an appropriate certification following a free and fair election, whichever comes
first.
(i) Provide the Union with notice of, and equal time and facilities to respond to, any
address made by the Respondent to employees on the question of union representation, for a
period of two years from the date the Notice is posted, or until the National Labor Relations
Board has issued an appropriate certification following a free and fair election, whichever comes
first.
(j) Upon reasonable advance notice from the Union, afford the Union and its
representatives reasonable access to the Respondent’s bulletin boards and all places where

50 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.”
JD(ATL)–25–07
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notices to employees are customarily posted at the North Haven facility for a period of two years
from the date the Notice is posted, or until the National Labor Relations Board has issued an
appropriate certification following a free and fair election, whichever comes first.
(k) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
DIRECTION OF SECOND ELECTION
IT IS FURTHER ORDERED that a third election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional Director deems appropriate.
The Regional Director shall direct and supervise the election, subject to the Board’s Rules and
Regulations. Eligible to vote are those employed during the payroll period ending immediately
before the date of the Notice of Third Election, including employees who did not work during the
period because they were ill, on vacation, or temporarily laid off. Also eligible are employees
engaged in an economic strike that began less than 12 months before the date of the election
directed herein and who retained their employee status during the eligibility period and their
replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services
may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or
been discharged for cause since the payroll period, striking employees who have been
discharged for cause since the strike began and who have not been rehired or reinstated before
the date of the election directed herein, and employees engaged in an economic strike that
began more than 12 months before the election date and who have been permanently replaced.
Those eligible shall vote whether they desire to be represented for collective bargaining by
International Union, United Automobile, Aerospace & Agricultural Implement Workers of
America (UAW).
To ensure that all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
directed that an eligibility list containing the full names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director within 7 days from the date of the
Notice of Third Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional
Director shall make the list available to all parties to the election. No extension of time to file the
list shall be granted by the Regional Director except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election whenever proper
objections are filed.
Dated, Washington, D.C., September 17, 2007.
____________________
Michael A. Marcionese
Administrative Law Judge
JD(ATL)-25-07
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT ask you about your activities on behalf of, or support for, the International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO (the
Union) or any other labor organization.
WE WILL NOT threaten you with the loss of benefits or plant closure if you select the Union to
represent you.
WE WILL NOT refuse to allow you to return to work from workers’ compensation leave, or
otherwise discriminate against you, because of your union activities.
WE WILL NOT create or discriminatorily apply job descriptions or a light duty policy in order to
prevent you from returning to work from workers’ compensation leave because of your union
activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s Order, reinstate Lee Mabry to his job as a
machine operator or to a light duty assignment consistent with any medical restrictions imposed
by a physician, without loss of his seniority or any other rights or privileges he previously
enjoyed.
WE WILL make Lee Mabry whole for any loss of earnings and other benefits resulting from our
discriminatory refusal to reinstate him, less any net interim earnings, plus interest.
WE WILL rescind the Machine Operator job description and the Worker’s Compensation Light
Duty Policy that was utilized to deny Lee Mabry reinstatement in December 2005.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to our
unlawful refusal to reinstate Lee Mabry, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the refusal to reinstate will not be used against him in
any way.
JD(ATL)-25-07
WE WILL, within 14 days from the date of the Board’s Order, supply the Union the full names
and addresses of current unit employees at the North Haven facility, updated every six months,
for a period of two years from the date the Notice is posted, or until the National Labor Relations
Board has issued an appropriate certification following a free and fair election, whichever comes
first.
WE WILL give the Union notice of, and equal time and facilities to respond to, any address we
make to you on the question of union representation, for a period of two years from the date the
Notice is posted, or until the National Labor Relations Board has issued an appropriate
certification following a free and fair election, whichever comes first.
WE WILL, upon reasonable advance notice from the Union, afford the Union and its
representatives reasonable access to our bulletin boards and all places where notices to
employees are customarily posted for a period of two years from the date the Notice is posted,
or until the National Labor Relations Board has issued an appropriate certification following a
free and fair election, whichever comes first.
WE WILL hold a meeting or meetings, scheduled to ensure the widest possible attendance, at
which this Notice to Employees will be read to you by our current plant director, production
manager or corporate vice president for human resources, with translation available for
Spanish-speaking employees.
PENNANT FOODS CO.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
280 Trumbull Street, 21st Floor
Hartford, Connecticut 06103-3503
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.