Pennant Foods Co.

National Labor Relations Board - Board Decisions

Jun 27, 2006

347 N.L.R.B. 460 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 41
460
Pennant Foods Company, a wholly owned subsidiary
of CS Bakery Holdings, Inc., a wholly owned
subsidiary of Chef Solution Holdings, LLC and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America, AFL–CIO. Cases 34–CA–11195, 34–
CA–11196, 34–CA–11209, and 34–CA–11251
June 27, 2006
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
On January 19, 2006, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief. The Gen-
eral Counsel and the Charging Party also filed cross-
exceptions and supporting briefs to which the Respon-
dent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 6:
“6. Since on or about June 7, 2005, the Respondent
has violated Section 8(a)(3) and (1) by failing and refus-
ing to reinstate Toporovsky and Borukhovich to their
former positions of employment.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pennant Foods Company, a
Wholly Owned Subsidiary of CS Bakery Holdings, Inc.,
a Wholly Owned Subsidiary of Chef Solution Holdings,
LLC, North Haven, Connecticut, its officers, agents, suc-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(1) by threatening unfair labor practice strikers with
permanent replacement if they refused to abandon the strike.
2 We shall modify the judge’s conclusions of law to conform to his
findings.
cessors, and assigns, shall take the action set forth in
the Order.
Margaret Lareau, Esq., for the General Counsel.
Gary Glaser, Esq. and Paul Galligan, Esq. (Seyfarth Shaw,
LLP), for the Respondents.
Thomas Meiklejohn, Esq. (Livingston, Adler, Pulda, Meik-
lejohn & Kelly), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 1, 2, and 3, 2005,1 in Hart-
ford, Connecticut. The consolidated complaint herein, which
issued on August 31, was based upon unfair labor practice
charges and an amended charge filed on May 24 and 26,
June 10, August 17 and 19, by International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America, AFL–CIO (the Union). The complaint alleges
that Pennant Foods Company, a wholly owned subsidiary of
CS Bakery Holdings, Inc., a wholly owned subsidiary of
Chef Solution Holdings, LLC2 (the Respondent), issued writ-
ten warnings to employee Jack Toporovsky on May 9 and
12, and removed his access to his laptop computer and all
telephones from the maintenance department, in violation of
Section 8(a)(1) and (3) of the Act. The complaint further
alleges that from on about May 24 to about June 6,
Toporovsky, Gregory Borukhovich, Karl Straba, and Harry
Patel ceased work concertedly and engaged in an unfair labor
practice strike, and that the Respondent threatened them with
permanent replacement if they refused to abandon the strike,
and has refused to reinstate Toporovsky and Borukhovich to
their former positions of employment, despite their uncondi-
tional offer to return to work, in further violation of Section
8(a)(1) and (3) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
A. Background
For a number of years, the Union has been attempting to
organize the Respondent’s production employees at its facil-
ity in North Haven, Connecticut (the facility). There was a
Board-conducted election and some settlement agreements,
but the Union has never been certified by the Board, or rec-

1 Unless indicated otherwise, all dates referred to herein relate to
the year 2005.
2 The Respondent’s name, as amended at the hearing.
PENNANT FOODS CO. 461
ognized by the Respondent, as the collective-bargaining repre-
sentative of these employees. This case involves the Respon-
dent’s maintenance employees only, at the time, approximately
nine in number. The three maintenance employees most active
in the Union’s organizing were Toporovsky, Borukhovich, and
Straba. On May 9, the Respondent issued a written warning to
Toporovsky and subsequently removed a computer from his
work station as well as the telephones from the maintenance
department. Counsel for the General Counsel alleges that the
Respondent engaged in this conduct because of Toporovsky’s
Union and other protected concerted activities. The Respon-
dent defends that Toporovsky was given this warning because
he used the company computer during working hours for per-
sonal use. Toporovsky was given another written warning on
May 12, allegedly for inadequately inspecting a metal detector
prior to requesting a service call for the detector. Beginning on
May 24, Toporovsky, Borukhovich, Straba, and Patel engaged
in a strike at the facility that ended on about June 6, when they
made unconditional offers to return to work. Counsel for the
General Counsel and counsel for the Charging Party allege that
this was an unfair labor practice strike; counsel for the Respon-
dent defends that it was an economic strike. It is further alleged
that upon their offer to return, the Respondent refused to rein-
state Toporovsky and Borukhovich to their former positions of
employment by putting them on the second shift rather than the
first shift where they had previously been employed, and made
other changes to Toporovsky’s terms of employment. No af-
firmative remedy is requested for Patel, who is satisfied with
his poststrike shift and schedule, or for Straba, who resigned at
the conclusion of the strike.
Respondent defends generally that it hired Jim Richards on
May 2 as its new maintenance manager to correct the ineffi-
cient operation of the maintenance department at the facility,
and that it was Richards’ attempt to correct past habits in the
department, and to operate the department in an efficient man-
ner, rather than any union or concerted activities, that resulted
in the events of May 9 through 12.
Richards testified that during his interviews for employment
with the Respondent, and prior to May 2, he was told of the
lack of efficiency and accountability in the maintenance de-
partment, the down time of the equipment and problems with
documentation of time, but without any specific mechanics
being named. He was also asked:
Q. Were you given any information or told anything
during the pre-hire process leading up to your starting on
May 2 of ‘05 about any union organizing efforts in the
past?
A. That there was an ongoing corporate campaign.
Q. That’s what you were told?
A. Yeah.
Q. Any . . . [.]
A. Whatever that means.
Q. Anything else besides that?
A. No.
Q. Were you given any details about that?
A. No.
Q. Did you know what union, if any, was involved
in that?
A. No.
Q. Were you given the names of any specific indi-
viduals at the plant that had been involved in that proc-
ess?
A. No. Absolutely not.
On cross-examination, Richards testified that it was while he
was interviewed by Price at the facility, the “corporate cam-
paign” was mentioned:
Q. And what did he tell you the corporate campaign
consisted of?
A. That was it.
Q. No. What did he . . . do you know what a corpo-
rate campaign is?
A. No, I don’t.
Q. Did you ask him what it was?
A. No, I didn’t.
Q. He just said that there was a corporate campaign
involving the union. He didn’t explain anything at all?
A. Correct.
During his first few days of employment at the facility,
Richards observed that when an electrical issue came up on
the plant floor, the mechanics stopped what they were doing
and waited for Toporovsky to come to fix the problem. He
also noticed that Toporovsky spent too much time at his
work station, rather than on the plant floor, and that when
Toporovsky was not on the plant floor repairing a machine,
he was at his desk with his laptop computer. When Richards
approached him, Toporovsky closed the computer and said
that he was working on a timesheet or a spread sheet, and
Richards told him to go down to the plant floor. Shortly after
his employment at the facility began, Richards met with
Toporovsky and told him that he wanted to build a team at
the facility, that there should be no difference between elec-
tricians and mechanics, that: “Everybody will do every-
thing.” He told Toporovsky that he was to cover the floor for
8 hours, rather than spending time at his desk.
B. The May 9 Warning
Rosa DeLauro is a Congresswoman from Connecticut.
She wrote a letter to the editor in the May 8 edition of the
New Haven Register entitled: “Companies Continue To Use
Illegal Anti-Union Tactics.” In the letter, she states, inter
alia, that she supports the Employee Free Choice Act and:
It was the situation in one of our businesses in this
area that led me to reaffirm our basic laws and em-
ployee rights.
North Haven-based Chef Solutions was charged
with 29 violations by the National Labor Relations
Board for coercion, threats of deportation, physical as-
sault and death threats against employees trying to or-
ganize.
She concludes by stating that the Employee Free Choice Act
“. . . provides common-sense changes to our labor law that
make sure our traditional employee protections remain real.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD462
Toporovsky testified that on the morning of May 9 he was
approached at the facility by Borukhovich, Straba, and other
mechanics who asked him if he read DeLauro’s letter in the
New Haven Register the prior day. He said that he had not, but
that as he had access to the internet on his office computer, he
would bring up the article later that day, when he had time. He
initially testified that sometime between 12 and 1 that day, he
pulled the article from the internet and forwarded it to Rich-
ards’ printer (in the adjoining office) because he wanted Rich-
ards to read the article. He later testified that this could have
occurred during his breaktime that day, but regardless, it was
on his “personal time.” He testified that when he brought up
the article on his computer, Borukhovich was looking over his
shoulder, although Toporovsky did not mention that in his affi-
davit given to the Board. About 5 or 10 minutes after forward-
ing the article to Richards’ printer, he went to Richards’ office
and asked him if he got the article that he forwarded to him.
Richards said that he did get the article and that Toporovsky
would get a warning for it. Later that day, Toporovsky was
given an employee disciplinary report entitled written warning
for violation of company rules of conduct. The time of incident
is stated as noon. The warning states that Toporovsky was
using his company computer and printing personal items in
Richards’ office. Toporovsky’s comment was that he sent the
article at a time when he was working on the work timesheets.
When Richards gave him the warning, he told him that he was
not allowed to use the computer and printer for personal mat-
ters, and that is why he was given the warning.
Borukhovich testified that when he arrived for work on May
9, Straba asked him if he saw the letter from DeLauro in the
newspaper. He said that he hadn’t seen it, but that they should
talk to Toporovsky about it. When he saw Toporovsky, he told
him about the DeLauro letter and Toporovsky said that he
would find the letter either during his lunch or his break.
Sometime later that day, either during lunch or a break,
Toporovsky showed him the letter on his computer. Boruk-
hovich’s affidavit given to the Board states that on the morning
of May 9 he told Toporovsky of the DeLauro article and
Toporovsky told him that he would locate the article on his
computer at lunchtime. Borukhovich’s affidavit does not men-
tion seeing the article on Toporovsky’s computer. Later in the
day, Toporovsky told him that Richards gave him a warning for
printing the letter from his computer to Richards’ printer.
Borukhovich asked Toporovsky why he sent the letter to Rich-
ards’ printer, and Toporovsky said, “He’s a new manager in the
company. I want to let him know what’s going [on] in the
company.” Straba testified that he told Toporovsky about the
DeLauro article, and Toporovsky told him that he would check
it out later in the day when he had time.
Richards testified that sometime between 10:30 a.m. and
noon on May 9, while he was sitting in his office, his printer
began to print something even though he had not been using it
at the time. He got up to see what was being printed and, as he
walked to the printer, Toporovsky walked into his office.
Richards took the article out of his printer and saw the heading
at the top was New Haven Register, without looking at it fur-
ther: “I didn’t read any of the text.” He asked Toporovsky if he
had printed it off the internet, and Toporovsky said that he had,
and that it was an article about the company and he wanted
to share it with Richards. Richards told him that he didn’t
understand how Toporovsky can use the company’s equip-
ment on the company’s time for personal use: “You know
you can’t do that.” Toporovsky said that the company was
mentioned in the article and he wanted to talk to him about it.
Richards said, “I don’t have time for this. You’re going to
get a write up. You can’t use company equipment on work
time doing personal things.” Toporovsky then walked out of
his office. Richards testified that the only thing he read from
the article was the name New Haven Register; he did not
read any of the text of the article. He was uncertain whether
he tore up the article or returned it to Toporovsky who took
the article with him when he left Richards’ office. The writ-
ten warning3 states the time of occurrence was noon. Rich-
ards testified that was the time he returned to his office and
actually wrote the warning. Toporovsky’s timecard states
that on May 9, he clocked in at 6:53 a.m., punched out for
lunch at 1:39 p.m., returned at 2:03, and left for the day at
3:22. Received in evidence was an e-mail dated February
14, containing Valentines Day wishes from Toporovsky to
many female employees at the facility, including Maria
Giaimo, Respondent’s human resources representative at the
facility. Further, the parties stipulated that pursuant to a
subpoena request from counsel for the General Counsel, the
Respondent could locate no warnings given to employees for
the personal use of telephones, fax machines, computers, or
other equipment for the period January 4 to May 9, 2004.
It is next alleged that on about May 10, the Respondent
removed Toporovsky’s access to his laptop computer and
removed all telephones from the maintenance department, in
violation of Section 8(a)(1) and (3) of the Act. Richards
testified that Toporovsky’s desk is adjacent to his office and
he would often see him using the computer or be on the tele-
phone. When Richards questioned him about the use of the
computer, he responded that he was checking on, or order-
ing, parts. In addition, when he saw the other mechanics on
the telephone on the downstairs desk, when he asked what
they were doing, they responded that they were ordering
parts. On May 9 he saw Borukhovich on the telephone and
asked him whether it was business or personal, and he said
that it was personal. When Richards told him that he should
hang up and call on his break or at lunchtime, on his cell
phone, he asked Richards, “How am I going to call my
wife?” Richards said that he didn’t know, but he would have
to make personal calls on his phone and on his time. At that
time, he decided to take Toporovsky’s laptop and the de-
partment’s telephones, and put them in his office. After
reviewing the timesheets maintained by the Respondent, he

3 The employee disciplinary report used by the Respondent pro-
vides for either a verbal warning, written warning, final warning,
suspension, termination, or other. Richards gave him a written
warning for the May 9 incident. On cross-examination, Richards
testified to a situation where he issued an employee a verbal warning
on May 6, after he had received a warning on January 20, and a final
warning on April 20, and another employee who he gave a verbal
warning on May 5, and another verbal warning on May 6. He testi-
fied that “The progressive discipline is relative to the infraction.”
PENNANT FOODS CO. 463
realized that there was no way that these mechanics were
spending so much time on the telephone on business-related
telephone calls, and that is why he removed the telephones
from the area. He testified further, that on May 11 he saw that
the laptop computer and telephone that he removed from
Toporovsky’s desk were back on Toporovsky’s desk. He asked
Toporovsky if he had taken them back, and he said that he had.
Richards told him that he was going to keep them in his office,
and if Toporovsky needed them, he could come into his office
and use them, but he wanted him to spend more time on the
production floor, rather than at his desk. When asked whether
he took the laptop computer from Toporovsky’s desk because
of the DeLauro article incident of the prior day, he testified:
“Absolutely not . . . It’s because it was no longer needed for his
job.”
Borukhovich testified that he has used the telephone at the
facility to order parts and has also used it for personal calls; for
“a few minutes in the morning” during his breaktime he called
his elderly parents. On an occasion during the period in ques-
tion, although he could not testify whether it occurred before or
after the above-mentioned warning to Toporovsky, while he
was on the shop phone, Richards asked him if it was a business
or a personal call and he said that it was a personal call. Rich-
ards told him no more personal calls on that phone. If he
wanted to make a personal call, he should do it on his cell
phone or the phone in the lunchroom on his break. After that,
whenever he wanted to use the Respondent’s computer or tele-
phone, he had to ask permission of Richards. Prior to that, the
only restriction that he knew of regarding the use of the com-
puter was not to use it for pornography. Previously, he used the
computer during his lunchtime to look for Russian jokes or
items about the city in Russia where he had lived. Straba testi-
fied that prior to May 9, there was a “loose policy” about not
using company telephones for personal calls. After
Toporovsky’s computer was removed from his desk, the tele-
phones became a “big issue.”
Toporovsky testified that on May 10, when he arrived for
work, the computer and telephone were removed from his desk.
In addition, three telephones in the maintenance department
were also removed. He asked Richard Price, the plant director,
why the computer and telephone were taken from him, and
Price told him, “What’s the difference between you and the
production employees? They don’t have telephones.” He testi-
fied that prior to this occasion, he and the other maintenance
employees used the telephones to order parts for the machinery
at the facility, because it was faster than placing an order
through the mail. “Most of the time. 99%,” the employees
used the telephone for business purposes. When they used the
telephone for personal use they had never been criticized for it.
On occasion, he has used his computer for personal purposes,
when he has the time, or on his time.
There was some testimony regarding work rules at the facil-
ity. The Respondent’s work rules are distributed to employees.
Toporovsky acknowledged receiving them when he was hired
in June 2004. Some of the “Minor Violations” listed in the
work rules are: personal telephone calls received during work-
ing hours, except in the case of emergencies or with permis-
sion, handling personal activities during working hours, without
authorization, and unauthorized solicitation or collections on
the premises, except as permitted by the National Labor Re-
lations Act. Toporovsky testified that although he remem-
bers signing something when he began working for the Re-
spondent, he does not remember any rule prohibiting per-
sonal activities on worktime or the use of the company tele-
phones for personal use.
C. The May 12 Metal Detector Warning
On May 12, Toporovsky received another written warning
for an incident that occurred on May 9. The warning states:
On or around 5/9/05 Jack as our electrician was supposed
to trouble shoot metal detector failure. He never tested or
diagnosed other than removing touch screen & smelling
something burnt he came to me to order new touch screen
and had them install. 5/10/05 Lock came out, it was not
touch screen & Jack said he didn’t test, he smelled.
The Respondent employs metal detectors to be certain that
there is no metal in any of their bread products. The bread is
on a conveyor belt that passes through the metal detector
head, which detects any metal in the bread. There is a screen
(or monitor) at the side of the head that is used to program
the metal detector with a keypad. Toporovsky testified that
on May 9 he was told that one of the metal detectors at the
facility was not working. When he went to check it, he saw
that the screen was dark, indicating that the power was not
reaching the detector. When he checked the control box
adjacent to the detector, it showed that the power was there.
He then removed the four screws on the screen and opened it
up and noticed a burning smell. He then put the screws back
on and went to see Richards. He told him that he could not
determine what was wrong with the detector and that he
should contact the Lock Company, which manufactured and
serviced the metal detectors, to come to repair the machine in
question. He did not tell Richards that he checked the power
supply and that it was operating properly. Because Richards
had only been employed at the facility for a week,
Toporovsky gave him the telephone number and the individ-
ual with whom he should speak at the Lock Company. He
testified that he didn’t make any further attempt to repair the
metal detector himself because he does not have a wiring
diagram of the metal detector, they do not have spare parts
for the metal detector, and there are about 18 cables in-
volved. Additionally, the Lock Company has always re-
paired the metal detectors at the facility.
Richards testified that on May 9, after hearing that the
metal detector was not working, he sent Toporovsky to look
at it. Toporovsky returned and told him that he smelled
something burning, and that he should call Lock and have a
serviceman come to the facility to fix it, and that he should
bring a new circuit board with him because he thought that
the problem was a burnt circuit board.4 Toporovsky testified

4 Counsel for the General Counsel, in her brief, argues that Rich-
ards’ testimony in this regard varied from whether Toporovsky told
him to “order” the part or to have the Lock technician “bring” the
part. Because I have credited the testimony of Toporovsky over that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
that he never told Richards about any particular item that
should be ordered. Richards then called Lock, asked to sched-
ule a service call as soon as possible, and to bring a circuit
board because he thought that theirs was burned. After the
service man arrived, Toporovsky told Richards that the service
man was still working on the problem, but that it wasn’t the
circuit board. Richards then became “a little concerned” that
the Respondent would have to pay for the circuit board, and he
asked the technician, who said that since he installed the circuit
board, the Respondent would not be charged for it. Richards
then asked to speak to Toporovsky, “. . . and that’s when I
found out . . . that the trouble shooting boiled down to him
removing head and smelling something burned and putting it
back together and asking me to have service come out.” The
warning he gave Toporovsky states that it was given for “sub-
standard work.” Richards testified that the warning was not
given due to his inability to repair the metal detector:
Substandard work is ordering something and not determining
what the cause is. The reason electrical components are not
returnable is because if you put an electrical component in
and it shorts out again because you haven’t found the problem
it’s non-refundable . . . after talking with him after it was
found that the board was not the issue and finding out that this
ultimately boiled down to this smell test, that’s just not ac-
ceptable for a lead mechanic or the supposed electrician per-
son there who had done all of the work to be able to diagnose
that way and have me order parts. I can’t afford with the
budget to pay for everyone to come out all the time without
any diagnosis of what the problem is.
When asked what he would have expected Toporovsky to do,
Richards testified:
As with any piece of equipment, there’s trouble shoot-
ing that is how you determine what’s wrong. You deter-
mine that there’s power coming from the wall to the plug.
There’s power going through the plug. There’s power get-
ting from the plug through the cord. There’s power get-
ting from the wall plug cord power supply head . . . it’s a
sequence of events. . . [.]
Because of proprietary reasons, they [Lock] don’t give
schematics. The trouble shooting process, again, you fol-
low the sequence of events until you get to where you
think the problem might be. You then, at that point, call
the manufacturer and say I’ve got eighteen wires coming
out that I’ve got power input. I don’t know what my
power output is . . . how do I test the board. They don’t . .
. disclose any proprietary information. They give you a
step by step instruction, test this, test this, you should get
this, you should get that and call me back.
You go through that procedure and you call him back.
At that point, they will either have something else for you
to try to tell you that there’s nothing else that you can do
in the field that you need to send it in.
He testified that after speaking with Toporovsky, he determined

of Richards, it is not necessary to examine the words used that care-
fully.
that he performed no diagnosis on the metal detector.
Walter Army, who is employed by Lock Inspection Sys-
tems as the service and quality manager, testified that Lock
manufactured the metal detectors used at the facility. He
described that metal detector as rectangular shaped with a
conveyor belt going through the opening in the middle. On
the right side is a display, called a pod, with a keyboard con-
taining three buttons. An 18-conductor cable comes out of
the unit into a stainless steel box, which holds the power
supply, which plugs into the wall outlet. He identified the
work order that was generated by Lock after receiving the
service call from the Respondent on May 9. The work order
gives the name of Lock’s technician who did the call, and
states that that the Respondent stated that the problem was
with the unit’s display. The service order also indicates the
spare parts that the technician took with him to the facility.
If the Respondent had ordered a specific part when it made
the initial service call, that part would be listed on a separate
part order. Army could not locate a part order for this call.
The technician went to the facility on May 11 and reported
that the unit had no display, and that some lights on the
power supply were blinking, indicating that there was a prob-
lem with the power supply. On the following day, the tech-
nician returned to the facility and replaced a part, but that did
not correct the problem. The other possible problem, the
oscillator, could not be replaced on site, so it had to be sent
to Lock to be repaired. When the unit was examined at the
Lock facility, it was determined that the oscillator board
inside the head had shorted out and burned. That would
produce a burning odor when it malfunctioned. Army was
asked how Respondent’s employees could check on whether
the electrical current was properly getting through the eight-
een wires to the metal detector:
Q. And would you need anything, any information
to be able to check those wires?
A. Yeah. You need a wiring diagram with the volt-
ages on it.
Q. Is there a wiring diagram in the manual that’s
supplied with this piece of equipment?
A. There’s a wiring diagram, but it doesn’t show
any voltages.
Q. Without that wiring diagram with voltages,
could an on-site electrician or technician be able to
check those 18 items?
A. You could go and check them, but, how would
you know what it’s supposed to be, unless somebody
says, on this pin I should have 15 volts, because if you
had eight volts. . . [.]
Q. That would be meaningless?
A. Well, you wouldn’t know whether that’s correct
or not.
Q. All right. And without that capability, if some-
one were to open this unit and smell a burning smell and
not have the wiring diagram, what would you expect
them to do?
A. If they opened it and smelled the burning, I
would expect them to shut it off immediately.
PENNANT FOODS CO. 465
Q. Okay. And then, would you expect them to service
it on their own, or contact the company, or do something
else?
A. Well, if they didn’t have schematics or drawings or
wiring diagrams, I would expect they’d call our people.
Q. You referred to schematics. Do you supply those
to your customers?
Q. No, we don’t.
The total cost of the service calls for the metal detector was
$1,164, but Lock only charged the Respondent $1000.
D. The May 17 Photocopy Incident
Sometime between May 15 and 17, Toporovsky, Boruk-
hovich, Straba, and Patel prepared a document in English and
Spanish that said:
To Questor-Chef Solutions and Richard Price
Stop harassing us and giving out warnings for no rea-
son! Stop trying to divide the people. We will not stop
speaking up to make this a better and safer place to work.
We are sticking together.
This document was signed by Toporovsky, Borukhovich,
Straba, Patel, and a number of other production and mainte-
nance employees. On about May 17, Toporovsky and Straba
were at the photocopy machine prior to 7 a.m. making copies of
this document. Toporovsky testified that they initially had
difficulty with the copier, but he was able to get it to copy the
document. As they were walking away from the copier, Rich-
ards approached them and asked to see the document, but
Straba refused to show it to him. Toporovsky told Straba to
show it to Richards and after seeing it, Richards brought them
in to see Price. Straba testified that they were having trouble
getting the copier to work, when Richards walked by and tried
to help them with the copier. When Richards arrived,
Toporovsky took the petition out of the copier and gave it to
Straba, who put it in his pocket. Richards asked to see it and
Straba refused to give it to him. Richards said that he had to
show him the document because he was his supervisor and,
when Straba refused, Richards took them to Price’s office, and
Straba gave Price the document. Richards testified that prior to
the start of work on that day, he observed Toporovsky and
Straba at the copying machine, and they appeared to be having
some difficulty getting it to work properly. He offered to help,
but they declined his help. He asked Toporovsky what they
were copying, and Toporovsky took it out of the copier and
gave it to Straba, who stuffed it in his shirt. Richards asked
what it was, and they said it was a personal item. Richards said
that he wanted to see it and Toporovsky told Straba to give it to
him. Richards “. . . glanced at it and said that we need to go
talk to Richard Price. . . [.]” He did not read the document, nor
does he recall what it was. Straba and Toporovsky were not
given a warning for this incident. Richards testified that there
were two differences between this incident and the May 9 inci-
dent with the newspaper article that Toporovsky transmitted to
his printer. The May 17 incident involving Toporovsky and
Straba occurred before the beginning of the shift, so they were
on their own time. Also, because the shift change was ap-
proaching, Richards was too busy to handle it, so he referred
the matter to Price.
Borukhovich testified that about a day before this incident
at the photocopier, he had a conversation with Richards in
his office. Richards asked him if somebody asked him to
throw rocks into somebody’s window, would he do it?
Borukhovich answered that it depended whose window. If it
was his enemy, no problem, he can do it. About a day or two
later, after the photocopier incident, Richards approached
him in the shop and said, “Yesterday you told me that you
wouldn’t throw rocks, and you just threw a rock.” Boruk-
hovich responded, “This rock is not in your window. It was
somebody else.” These conversations are not mentioned in
his affidavit given to the Board, and Richards testified that he
never made such statements.
E. The Strike
Toporovsky, Borukhovich, Straba, and Patel went on
strike beginning May 24, and Toporovsky, Borukhovich, and
Straba made unconditional offers to return on June 6. It is
alleged that the Respondent failed to reinstate Toporovsky
and Borukhovich to their former positions of employment by
returning them to the second shift on June 7, rather than the
first shift where they had previously been employed, and by
making changes to Toporovsky’s terms of employment.
There were three meetings that the employees had with the
Union prior to the commencement of the strike. The first
meeting was on May 12; the second and third meeting were
on about May 20 and 22. The meetings were lead by union
organizer Peggy Shorey, who testified that she received tele-
phone calls from Toporovsky and Borukhovich on May 11
saying that the maintenance employees were angry at what
was happening at the facility and were planning to go on
strike. She said that they should meet at the earliest possible
time to discuss the issues and their rights in more detail, and
they met on the following day. Toporovsky, Straba, Patel,
and one other employee, not Borukhovich, were present.
The employees spoke about the lack of respect that they
received, as well as the fact that all of a sudden they were
receiving warnings that were not deserved. She explained
the difference between an economic strike and an unfair
labor practice strike: the former is solely about working con-
ditions or pay or benefits, while an unfair labor practice
strike refers to the company having violated the employees’
labor rights through unfair labor practices. She encouraged
the employees to give the Union some time to investigate the
issues in order to obtain more information before they began
the strike. She said that she would consult with the Union’s
legal department about the issues, but, in the meantime, they
should continue acting as a group. Toporovsky testified that
from four to six employees, including Borukhovich, were
present at this meeting. The employees said that they needed
the Union to protect them and expressed a fear of losing their
jobs. They also spoke about the warnings that they received
and Shorey said that she would speak to other people in the
Union about the situation, but that she would need more
information from the employees to know whether they might
qualify as unfair labor practice strikers. Straba testified that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
at this meeting the workers spoke about the warnings and har-
assment at work.
The next meeting of employees took place on about May 20.
About eight employees, including Toporovsky, Borukhovich,
and Straba were present. Two other union representatives, Julie
Kushner and Jose Melara, were also present. Shorey testified
that since some employees who were there had not been at the
first meeting, the union representatives explained the difference
between an economic strike and an unfair labor practice strike.
They also told the employees that, based upon what they told
Shorey at the first meeting, the Union believed that the Re-
spondent had committed unfair labor practices. Toporovsky
spoke again about his computer being removed and how that
affected his job and about his May 9 and 12 warnings, and
other employees also spoke about warnings that they had re-
ceived that they felt were retaliatory. The employees also men-
tioned the fact that the telephones were removed from the de-
partment. Toporovsky, Borukhovich, and Straba said that they
wanted to strike, and the union representatives told them that
they believed that because unfair labor practices had been
committed, it would be an unfair labor practice strike. The
employees said that they felt that other employees might also
be interested in striking, so they agreed to meet again on May
22. Shorey said that she would begin to prepare the picket
signs for the strike. Toporovsky testified that at this meeting
the main issue that the employees discussed was removing the
warnings from their files, and he was one of the employees who
spoke about that. He also complained about the fact that his
laptop computer was taken away from him. Shorey said that
she felt that if they went on strike it would be an unfair labor
practice strike: “Unfair labor practice strike doesn’t demand
any economical demand. We didn’t ask for raise our hourly
rate or sick days or whatever. We ask for fair treatment.”
Shorey told them that the picket signs would mirror their re-
quests and ask for the warnings to be removed from their files
and that they should receive fair treatment. Borukhovich testi-
fied that at all the meetings Toporovsky spoke about how the
Respondent was treating the employees, and the unfair warn-
ings.
About seven or eight employees attended the final meeting,
which took place on May 22. Kushner and Melara were also
present, along with Shorey. Because some employees who
attended had not been at the prior meetings, they again dis-
cussed the difference between an economic strike and an unfair
labor practice strike, stating that they believed that unfair labor
practices had been committed, giving Toporovsky’s May 9
warning and the removal of the phones and the computer as an
example. In the discussions at the three meetings, there was
much talk about the unfair warnings that they had been given
and the employees decided that they would begin the strike by
giving a warning to Price, challenging his actions at the facility.
Shorey prepared the warning to Price later that day, e-mailed it
to Toporovsky that evening, and gave a copy to the employees
when they met the following morning.
Early in the morning of May 24, Toporovsky, Borukhovich,
and Straba met with Shorey, who gave them the “warning” that
they were to give to Price. The warning, signed by them,
states:
WRITTEN WARNING:
We have requested many times that Questor/Chef Solu-
tions stop the harassment and unfair treatment of all the
employees. We will not stop speaking up to make this a
better and safer place to work. Stop trying to divide the
people, we are sticking together. We are writing you up for
your continued unfair treatment of all of us.
Toporovsky, Borukhovich, and Straba were waiting for Price
when he arrived for work that morning. Toporovsky told
Price that they had a written warning to give him for harass-
ing them, but Price refused to accept it. Toporovsky told
Price that he would give the warning to his secretary, which
he did a few minutes later. Toporovsky, Borukhovich, and
Straba then began picketing on the public sidewalk adjoining
the facility. They were later joined by Patel, who worked on
the third shift. The picket signs that they, and other employ-
ees, carried stated, inter alia, in English and Spanish: “ULP
STRIKE,” “PROTECT IMMIGRANT WORKERS,”
“REMOVE THE UNFAIR WARNINGS,” “NO MORE
UNFAIR WARNINGS,” and “ON STRIKE.” Sometime
later that day, the three, together with Shorey went to the
Board’s office in Hartford and filed charges with the Board.
Toporovsky, Borukhovich, Straba, and Patel were given
identical letters by the Respondent; Patel on May 25, and the
other three on May 24. The letters state:
Chef Solutions recognizes your right to engage in a strike
or other protected concerted activity. However, please un-
derstand that the law also provides the Company with the
right to continue its operations. This right includes the
Company’s right to hire permanent replacements for those
who engage in an economic strike, in order to be able to
continue its operations in support of its customers. Consis-
tent with this, please be advised [emphasis supplied] that if
you do not report for work, as scheduled, for the first shift
tomorrow, Wednesday, May 25, 2005, then the Company
may exercise its right to hire permanent replacements to fill
your position. If a permanent replace [sic] is hired for your
position, however, you will be placed on a preferential hir-
ing list for reinstatement once your position becomes va-
cant.
The parties stipulated that on June 6 the Respondent received
the following letter signed by Toporovsky, Borukhovich, and
Straba: “We are returning to our former positions of em-
ployment without conditions. We are not giving up any of
our rights. We will continue to fight against unfair treatment
and abusive working conditions.” Price called Toporovsky
and Borukhovich separately to his office, and told each that
the only position that he could offer them was the second-
shift mechanic, effective the following day, and both
Toporovsky and Borukhovich accepted these positions.
Although it is agreed that Toporovsky and Borukhovich
were returned to the Respondent’s employ on June 7, and
that no affirmative remedy is requested regarding Straba and
Patel, it is alleged that the Respondent failed to reinstate
Toporovsky and Borukhovich to their former positions of
employment, in violation of Section 8(a)(1) and (3) of the
PENNANT FOODS CO. 467
Act. Admittedly, they were reinstated on the second shift,
rather than the first shift where they had been employed prior to
May 24. Toporovsky testified to other changes in his terms of
employment as well. None of these alleged changes were ob-
vious and Toporovsky’s testimony on this subject is not par-
ticularly clear. For example, he testified that after he returned,
Richards told him to empty the contents from his desk and
move everything to the locker room. In addition, prior to the
strike, he wore a blue uniform like Richards. After he returned,
he wore a mechanics uniform of dark blue pants and a blue
shirt. Further, he testified about changes regarding his respon-
sibilities with the yeast system at the facility, which had been “.
. . constantly under my daily routine check list.” On about July
7 or 8, he observed a contractor working on the CO2 system of
the machine, and introduced himself. At that moment, Rich-
ards came by and said, “Do whatever you have to do, don’t stay
here.” In addition, he was not allowed to use his computer to
set up, and calibrate, the metal detector, as he had prior to the
strike. Prior to the strike he had a role in repairing the mixers,
which he usually did with his computer; after the strike he was
not asked to perform this work. In about July, he was told to
perform caulking work on the foundation, work which he had
not previously performed for the Respondent. Borukhovich
testified that when they returned, they initially met with
Giamio, who told them to wait and that she would locate Price,
who met separately with each of them. When Borukhovich met
with him, Price told him that they were engaged in an economic
strike, and Borukhovich told him, “No, it was an unfair labor
practice strike.” Price told him that the only opening that he
had was on the second shift, and Borukhovich said that he
would take it.
Richards testified:
Some of the issues that were part of Jack’s routine no longer
needed that labor time . . . we’d addressed the cause . . . and
effect, and resolved the issue. Some of them needed a little
tweaking right after he came back and we continued to tweak
. . . [.] So when Jack came back, the CO2 system was work-
ing great, colder than it’s ever been. The flour system had
been re-engineered and working better than it had ever been.
The yeast system no longer had any issues. The mixers that
were requiring a $3,500 a piece part replacement for the
touchscreen that required the laptop no longer needed to be
done.
With these exceptions, his job after the strike was the same as
when they first met in early May. He testified further that after
the strike he asked Toporovsky to grease a machine and caulk
some cracks in the building because an inspection report
showed that it needed to be done.
IV. ANALYSIS
I found Richards to be a less-than credible witness. The rea-
son for this finding is that I found certain of his testimony to be
illogical and not believable. He testified that when he was
interviewed by the Respondent, he was told that the Union had
an “ongoing corporate campaign” with the Respondent, but that
he was not told what union was involved, was not given any
details of the campaign, nor did he ask for any details, and
didn’t even know what it meant. He testified further, that on
May 9, when Toporovsky printed the article on his printer,
he never read the article other than seeing that it was from
the New Haven Register, even though Toporovsky told him
that it was about the company. Finally, on about May 17,
when he observed Toporovsky and Straba at the photocopy
machine attempting to copy the petition to Price, after de-
manding to see the document, he testified that he only
glanced at it, did not read it, and cannot recall what it was. I
find this testimony illogical and unreasonable because Rich-
ards knew that he was being hired to straighten out what was,
allegedly, an inefficient department. It seems incredulous to
me that in these three situations, Richards, or somebody in
that situation, would show a lack of interest in the facts un-
derlying the Union’s corporate campaign, the contents of the
letter on May 9, and the petition on May 17. It sounds like,
“Hear No Evil, See No Evil, Speak No Evil.” It therefore
appears to me that he has tailored his testimony to make it
appear that he had no knowledge of the union campaign at
the facility, or of Toporovsky, Borukhovich, or Straba’s par-
ticipation in it. An additional reason for discrediting Rich-
ards relates to his testimony about the metal detector warn-
ing. In that regard, he testified that Toporovsky told him to
order a new control board, yet Lock’s record show no such
order.
The May 9 incident is fairly straightforward, and generally
undenied. When his fellow employees told him of the De-
Lauro article in the May 8 newspaper, Toporovsky went onto
his company-owned computer, located the article on the
newspaper’s website, and forwarded it to Richards’ printer.
There are, however, credibility issues in two areas: was
Borukhovich with Toporovsky at his computer when
Toporovsky was looking at the DeLauro article, and was
Toporovsky on working time when he located the article and
sent it to Richards’ printer. I do not believe that either of
these findings is necessary to a finding of whether the May 9
warning violated the Act, but I would find that Borukhovich
was not with him when he located the article. There are two
reasons for this finding. First, neither Toporovsky nor
Borukhovich’s affidavit refer to Borukhovich’s presence at
the time and, more importantly, with a new stricter supervi-
sor at the facility, I find it unlikely that Borukhovich would
be with Toporovsky at his desk, rather than being on the
floor, where Borukhovich knew Richards would want him to
be. Because there is no solid evidence one way or the other
as to whether Toporovsky located and forwarded the article
to Richards on working or nonworking time, other than
Richards’ testimony that the incident occurred about 10:30,
which could have been a mid-morning break, I would credit
Toporovsky and find that it occurred during his breaktime.
However, even if he forwarded the article to Richards’
printer on working time, that would not negate the protected
nature of his actions.
Toporovsky was given a written warning by Richards on
May 9 after he forwarded DeLauro’s article to his printer.
Richards testified, and the warning states, that he gave
Toporovsky this warning for using the company printer and
printing personal items in Richard’s office. Counsel for the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
General Counsel alleges that Toporovsky’s actions on that day
constituted protected concerted activities, and union activities,
and that the warning therefore violated Section 8(a)(1)(3) of the
Act. Based upon all the evidence, I find that Toporovsky was
given this warning due to the contents of the May 9 article for-
warded to Richards, rather than the fact that Toporovsky used
the company computer to send it to Richards’ printer.
Toporovsky had been employed by the Respondent for 14
months and had previously received only one warning for wear-
ing a watch in a work area. No other employee has received a
warning for a similar transgression in, at least, the prior 16
months, and Toporovsky e-mailed Valentines Day greetings to
female employees, including Giaimo, 3 months earlier, without
a problem. In addition, there appears to be disparate treatment
in that two other employees with more immediate warnings
were only given verbal warnings, while Toporovsky got a writ-
ten warning. These facts, together with the fact that I did not
find Richards to be a credible witness, convinces me that
Toporovsky was given the May 9 warning not simply because
he used the company computer, but because of the contents of
the DeLauro article. The issue therefore is whether this trans-
mittal constituted protected concerted activities.
This is not the usual situation where employees were warned
or were otherwise penalized for talking among themselves
about a union or otherwise improving their working conditions.
In this situation, after other employees told him of the DeLauro
article, which referred to the country’s labor laws, and her alle-
gation that the Respondent had been violating these laws,
Toporovsky forwarded this article to Richard’s printer. In
Eastex, Inc. v. NLRB, 437 U.S. 556, at 565–568, the Supreme
Court stated:
We also find no warrant for petitioner’s view that employees
lose their protection under the “mutual aid or protection”
clause when they seek to improve terms and conditions of
employment or otherwise improve their lot as employees
through channels outside the immediate employee-employer
relationship. . . [.] Thus, it has been held that the “mutual aid
or protection” clause protects employees from retaliation by
their employers when they seek to improve working condi-
tions through resort to administrative and judicial forums, and
that employees’ appeals to legislators to protect their interests
as employees are within the scope of this clause.
In Meyers Industries, 281 NLRB 882, 885 (1986), after a court
remand, the Board decided to adhere to the definition of con-
certed activities set forth in Meyers Industries (Meyers I), 268
NLRB 493 (1984), stating that that definition was “. . . expan-
sive enough to include individual activity that is connected to
collective activity, which lies at the core of Section 7.” The
Board, at 885, stated further: “to find an employee’s activity to
be ‘concerted,’ we shall require that it be engaged in with or on
the authority of other employees, and not solely by and on be-
half of the employee himself.” The Board further stated, at
886: “When the record evidence demonstrates group activities,
whether ‘specifically authorized’ in a formal agency sense, or
otherwise, we shall find the conduct to be concerted.” Even
though I have found that Toporovsky was alone in his office
when he forwarded the DeLauro letter to Richards’ printer, his
actions were concerted for a number of reasons. Other em-
ployees had previously notified him of the article and the
article referred to the Respondent and its labor relations pol-
icy toward its employees. As Administrative Law Judge
James Rose stated in Compuware Corp., 320 NLRB 101,
103 (1995): “The fact that an employee may act alone during
some phase of concerted presentation of employee griev-
ances does not mean he is thereby outside the protection of
the Act.”
Two other cases warrant note here. In Blue Circle Cement
Co., 311 NLRB 623 (1993), an employee was discharged for
using her employer’s photocopying machine to copy a publi-
cation that criticized her employer’s plan to burn hazardous
waste as a fuel at its facility. Even though only the discrimi-
natee was observed using the photocopy machine, the Board
found that her actions constituted concerted activities, and
her discharge violated Section 8(a)(1) of the Act, stating:
“the actions in question were a logical outgrowth of the mul-
tiple efforts of Saunders and the Union to oppose the Re-
spondent’s plan to burn hazardous waste.” In St. Joseph’s
Hospital, 337 NLRB 94 (2001), a nurse was given a warning
for programming on her computer the screen saver: “Look
for the U.” The Board found that the hospital routinely al-
lowed other nurses to display a wide variety of personal,
nonwork-related screen savers, and that by issuing a warning
in this situation, the Board found that the employer violated
Section 8(a)(1) and (3) of the Act. The Board also stated that
in this situation, it was unnecessary to rely on an analysis
under Wright Line, 251 NLRB 1083 (1980): “Wright Line is
appropriately used in cases ‘turning on employer motiva-
tion.’ A Wright Line analysis is not appropriate where the
conduct for which the employer claims to have disciplined
the employee was protected activity.”
I therefore find that the evidence establishes that the writ-
ten warning that Toporovsky received on May 9 was due to
the protected concerted and union activities of forwarding
the DeLauro article to Richards’ printer, and therefore vio-
lated Section 8(a)(1) and (3) of the Act. On that day or the
following day, Richards took Toporovsky’s computer from
his desk and put it in his office. Because of the nexus be-
tween the above violation and the removal of the computer
from Toporovsky’s desk, I find that it violates Section
8(a)(1) and (3) of the Act. Richards also removed the tele-
phones from the maintenance department at this time as well.
The only certain situation that Richards could testify to in-
volving the personal use of the telephones was the situation
on May 9 when Borukhovich admitted that he was using the
telephone on a personal call. On other occasions, when he
saw Toporovsky and other mechanics on the telephone and
questioned them about it, they claimed that they were order-
ing parts or were involved in some other business related
conversation, which he didn’t believe. As Richards had been
employed by the Respondent for only 1 week, and as he
removed the computer and telephones on the same day as, or
the day after, the DeLauro article situation, I find that it was
that situation, rather than the alleged improper use of com-
pany phones, that prompted Richards to remove the phones
from the department, and find that this violated Section
PENNANT FOODS CO. 469
8(a)(1) and (3) of the Act.
The next allegation involves the May 12 warning given to
Toporovsky, which I believe is the most glaring violation
herein. The incident occurred on May 9, the same day as the
DeLauro article incident. The credible testimony provides no
support for Richards’ decision to issue a warning to
Toporovsky for the metal detector repairs. Richards testified to
two principal reasons for giving Toporovsky the warning. One
reason was that Toporovsky told him to have the service person
bring a new circuit board with him and he was concerned that
the Respondent would have to pay for the circuit board. How-
ever, I credit Toporovsky’s testimony that he never told Rich-
ards to order any specific part. Additionally, Army, who was a
totally disinterested and credible witness, testified that Respon-
dent’s records do not reveal any separate part order for a circuit
board. And finally, Lock’s technician told Richards that since
he installed the circuit board (which was not the problem) the
Respondent would not have to pay for it. This argument there-
fore appears to be totally illusory. Richards’ other stated reason
for the warning is that Toporovsky performed substandard
work by not performing enough tests prior to calling the service
employee from Lock. Although I am not knowledgeable about
electronics, it appears to me that Toporovsky did all that he
could do in order to properly analyze the situation. More im-
portantly, Army feels the same way. Army was asked:
Q. . . . if someone were to open this unit and smell a
burning smell and not have the wiring diagram, what
would you expect them to do?
A. If they opened it and smelled the burning, I would
expect them to shut it off immediately.
Q. And then, would you expect them to service it on
their own, or contact the company, or do something else?
A. Well, if they didn’t have schematics [which Lock
does not supply to its customers] or drawings or wiring
diagrams, I would expect that they would call our people.
That is precisely what Toporovsky did. I therefore find that
this warning was unwarranted and was pretextual in retaliation
for his union and protected concerted activities, in violation of
Section 8(a)(1) and (3) of the Act.
Toporovsky, Borukhovich, Straba, and Patel began a strike
and picketing at the facility on May 24. Toporovsky, Boruk-
hovich and Straba made an unconditional offer to return on
June 6, and Toporovsky and Borukhovich returned to the sec-
ond shift on the following day. No affirmative remedy is re-
quested for Straba and Patel. Counsel for the General Counsel
alleges that they were engaged in an unfair labor practice strike;
Respondent defends that it was an economic strike. I have
found that the Respondent violated Section 8(a)(1) and (3) of
the Act by giving written warnings to Toporovsky on May 9
and May 12, and by removing the computer from his desk and
by removing the telephones from the department on about May
9. The Board uses numerous phrases to determine whether a
strike is an economic strike or an unfair labor practice strike.
All look to the “subjective reactions” and the “state of mind of
the strikers” in going on strike. C-Line Express, 292 NLRB
638, 639 (1989), and the effect of the unfair labor practices on
the actions of the strikers. If it had “anything to do with” caus-
ing the strike it will be considered an unfair labor practice
strike, Child Development Council of Northeastern Pennsyl-
vania, 316 NLRB 1145 fn. 5 (1995). Was it a “contributing
cause” of the strike? R & H Coal Co., 309 NLRB 28 (1992),
or one of the causes of the strike, Boydston Electric, Inc., 331
NLRB 450 (2000)? In making this determination, the Board
does not calculate the relative severity of the unfair labor
practices. In Teamsters Local 515 v. NLRB, 906 F.2d 719,
723 (D.C. Cir. 1990), the court stated: “The employer’s un-
fair labor practice need not be the sole or even the major
cause or aggravating factor of the strike; it need only be a
contributing factor. . . [.] The dispositive question is whether
the employees in deciding to go on strike, were motivated in
part by the unfair labor practices committed by their em-
ployer, not whether without that motivation, the employees
might have struck for some other reason.”
No matter which of these tests is applied, it is clear that
the strike that lasted from May 24 through June 6 was an
unfair labor practice strike. The first union meeting occurred
on the day that Toporovsky received his second written
warning from Richards. The warnings were extensively
discussed at the union meetings and appear on the picket
signs employed by the strikers. In addition, the symbolic
gesture of giving Price a written warning to commence the
strike illustrates the importance of that issue for the strikers.
I therefore find that the strike engaged in by Toporovsky,
Borukhovich, Straba, Patel, and, at times, others was an un-
fair labor practice strike.
It is further alleged that the letter that Respondent gave to
the strikers on May 24 and 25 threatens them with permanent
replacement if they refused to abandon the strike, in violation
of Section 8(a)(1) of the Act. The first three sentences of this
letter provides a correct interpretation of Board law, conclud-
ing by saying that the company can hire permanent replace-
ments for those employees engaged in an economic strike.
However, the rest of the letter, by assuming, incorrectly, that
the employees were engaged in an economic strike, threatens
the employees with permanent replacement if they do not
report for work the following morning. In Eagle Comtron-
ics, Inc., 263 NLRB 515, 516 (1982), involving economic
strikers, the Board stated:
[A]n employer may address the subject of striker replace-
ment without fully detailing the protections enumerated in
Laidlaw,5 so long as it does not threaten that, as a result of a
strike, employees will be deprived of their rights in a man-
ner inconsistent with those detailed in Laidlaw. . . [.] As
long as an employer’s statement on job status after a strike
are consistent with the law, they cannot be characterized as
restraining or coercing employees in the exercise of their
rights under the Act.
In the instant matter, Toporovsky, Borukhovich, Straba,
Patel, and others were engaged in an unfair labor practice
strike. As the letter threatens them with possibly being per-
manently replaced it was an unlawful threat in violation of
Section 8(a)(1) of the Act. Trading Port, Inc., 219 NLRB

5 Laidlaw Corp., 171 NLRB 1366 (1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
298 (1975); Cagles, Inc., 234 NLRB 1148 (1978); Sygma Net-
work Corp., 317 NLRB 411 (1995); Grinnel Fire Systems, 328
NLRB 585 (1999).
Finally, it is alleged that since about June 7, after
Toporovsky and Borukhovich made unconditional offers to
return to work, the Respondent failed and refused to reinstate
them to their former positions of employment by placing them
on the second shift and by making changes to Toporovsky’s
working conditions, in violation of Section 8(a)(1) and (3) of
the Act. The law is clear that once unfair labor practice strikers
make unconditional offers to return to work, they must be re-
turned to their former positions of employment, unless they no
longer exist, even if permanent replacements must be dis-
charged in order to do so. Harlowe Servo Controls, Inc., 250
NLRB 958, 1070 (1980); Super Glass Corp., 314 NLRB 596,
598 (1994). As the Respondent reinstated them to the second
shift, rather than the first shift where they had previously been
employed, it violated Section 8(a)(1) and (3) of the Act. Be-
cause of this finding, I need not decide whether it made any
further changes to Toporovsky’s terms of employment.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By issuing written warnings to Jack Toporovsky on May
9 and 12, 2005, and by removing the laptop computer from his
office and the telephones from the maintenance department on
about May 10, 2005, the Respondent violated Section 8(a)(1)
and (3) of the Act.
4. The strike engaged in by Toporovsky, Gregory Boruk-
hovich, Karl Straba, Henry Patel, and other employees from
May 24, 2005 to June 6, 2005 was an unfair labor practice
strike.
5. The Respondent violated Section 8(a)(1) of the Act by
threatening the unfair labor practice strikers with permanent
replacement if they refused to abandon the strike.
6. Since on or about June 7, 2005, the Respondent has failed
and refused to reinstate Toporovsky and Borukhovich to their
former positions of employment.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirmative
action set forth below to effectuate the policies of the Act.
Having found that the Respondent unlawfully gave Toporovsky
two written warnings, I shall recommend that it be ordered to
rescind these warnings, expunge them from his record, and
notify him in writing that this has been done. I shall also rec-
ommend that the Respondent be ordered to return
Toporovsky’s computer to his desk, and the telephones to the
maintenance department. Finally, I shall recommend that
Toporovsky and Borukhovich be offered immediate reinstate-
ment to the first shift position that they held prior to May 24,
2005. No affirmative remedy is required for Straba and Patel
and, because I have recommended that Toporovsky and
Borukhovich be reinstated to their former first-shift position,
no affirmative remedy is needed to remedy the threat con-
tained in the May 24, 2005 letter. Counsel for the General
Counsel, in her brief, requests “special remedies,” including
access to the bulletin boards at the facility, the names and
addresses of current employees, and the requirement that a
representative of the Respondent read the notice to assem-
bled employees. As the history that counsel for the General
Counsel depends or relates to settled cases, I find that this
request is not justified herein.
On these findings of fact, conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Pennant Foods Company, a wholly
owned subsidiary of CS Bakery Holdings, Inc., a wholly
owned subsidiary of Chef Solution Holdings, LLC, North
Haven, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing warnings to employees, or otherwise discrimi-
nating against its employees, due to their union, or other
protected concerted activities.
(b) Threatening unfair labor practice strikers with perma-
nent replacement if they fail to return to work at a specific
time.
(c) Failing and refusing to reinstate unfair labor practice
strikers to their former positions of employment.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Toporovsky, in writing, that the warnings is-
sued to him on May 9 and May 12, 2005 have been with-
drawn, and that evidence of these warnings will be expunged
from its files.
(b) Replace the laptop computer that was taken from
Toporovsky’s desk and the telephones that were removed
from the maintenance department.
(c) Reinstate Toporovsky and Borukhovich to the first-
shift positions on which they had been employed prior to
May 24, 2005.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful warnings
given to Toporovsky, and within 3 days thereafter notify
him, in writing, that this has been done and that the warnings
will not be used against him in any way.
(e) Within 14 days after service by the Region, post at its
facility in North Haven, Connecticut, copies of the attached

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
PENNANT FOODS CO. 471
notice marked “Appendix.”7 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 al-
tered, 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 May 9, 2005.
(f) 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.
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.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 ac-
tivities.
WE WILL NOT issue warnings to, or otherwise discriminate
against our employees, due to their union, or other protected
concerted activities.
WE WILL NOT threaten unfair labor practice strikers with
permanent replacement.
WE WILL NOT fail or refuse to reinstate unfair labor practice
strikers to their former positions of employment.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the written warnings dated May 9 and 12,
2005 given to Jack Toporovsky and we will notify him, in
writing, that this has been done and that all evidence of these
warnings have been removed from our records.
WE WILL reinstate Toporovsky and Gregory Borukhovich
to their positions of employment prior to May 24, 2005.
PENNANT FOODS CO., A WHOLLY OWNED
SUBSIDIARY OF CS BAKERY HOLDINGS, INC., A
WHOLLY OWNED SUBSIDIARY OF CHEF SOLUTION
HOLDINGS, LLC