Schwan's Home Service, Inc. a wholly owned subsidiary of the Schwan Food Company

National Labor Relations Board - Administrative Judge Opinions

Jun 6, 2012

27-CA-066674 (N.L.R.B. Jun. 6, 2012)

JD(SF)–27–12
Denver, CO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SCHWAN'S HOME SERVICE, INC.
A WHOLLY OWNED SUBSIDIARY OF
THE SCHWAN FOOD COMPANY
and Case No. 27-CA-066674
PATRICK K. WARDELL, an Individual
Todd D. Saveland, Esq, and Renee C. Barker, Esq.,
Denver, Colorado, for the General Counsel
Amy J. Zdravecky, Esq., of Franczek Radelet,
Chicago, Illinois, for the Respondent
DECISION
Statement of the Case
Gerald A. Wacknov, Administrative Law Judge: Pursuant to a notice of hearing in this
matter was held before me in Denver, Colorado on March 27, 2012. The charge in the
captioned matter was filed by Patrick K. Wardell, an Individual, on August 29, 20111 and an
amended charge was filed by Wardell on November 30, 2011. Thereafter, on December 30,
2011 the Regional Director for Region 27 of the National Labor Relations Board (Board) issued
a consolidated complaint and notice of hearing alleging violations by Schwan’s Home Service,
Inc., a Wholly Owned Subsidiary of the Schwan Food Company (Respondent) of Section 8(a)(1)
of the National Labor Relations Act (the Act).2 The Respondent, in its answer to the complaint,
duly filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the Acting General Counsel (the General Counsel) and
counsel for the Respondent. Upon the entire record, and based upon my observation of the
witnesses and consideration of the briefs submitted, I make the following:

1 This filing date appears as amended at the hearing.
2 The consolidated complaint contains an additional case number (Case 27-CA-021969).
On March 26, 2011, the Regional Director severed that case from complaint and the allegations
pertaining to that case were rescinded.
JD(SF)–27–12
Findings of Fact
I. Jurisdiction
5
The Respondent is a Minnesota corporation with offices and places of business
throughout the United States, including a facility in Loveland, Colorado. The Respondent is
engaged in the production, manufacturing, marketing, distribution, retail and nonretail sale of
frozen food products. In the course and conduct of its business operations the Respondent
annually derives gross revenues in excess of $500,000 and annually receives and purchases at 10
its Loveland, Colorado facility, good materials and services valued in excess of $5000 directly
from points outside the State of Colorado. It is admitted and I find that the Respondent is, and at
all material times has been, an employer within the meaning of Section 2(2), (6) and (7) of the
Act.
15
II. Alleged Unfair Labor Practices
A. Issues
The principal issues in this proceeding are whether the Respondent has promulgated 20
and maintained rules and policies in various documents that restrict employee Section 7 rights
in violation of Section 8(a)(1) of the Act.
B. Background
Facts and Analysis25
The Respondent sells quality frozen food products to residential and business
customers, door to door. It employs about 7000 employees, working out of approximately 400
facilities, called depots or warehouses, located in the contiguous 48 states. Each depot has
about 16 route sales representatives who sell and deliver the products, using refrigerated 30
vehicles furnished by the Respondent. In addition, each depot has from two to four warehouse
employees who receive products from suppliers and load up the route sales representatives’
trucks each day.
The complaint alleges that certain employee handbook policies, and other company 35
rules, contracts, and suspension and termination notices contain facially unlawful provisions that
would reasonably tend to chill employees’ Section 7 rights to engage in concerted protected
activity and/or union activity.
Dave Bock, Respondent’s vice-president and assistant general counsel, is also the 40
Respondent’s ethics officer and corporate affirmative action compliance officer. Bock testified as
follows regarding the daily routine of the route sales representatives:
It’s a long day for what we call our RSRs, route sales representatives. They
come in the morning, anytime between 8:00 and 10:00. There’s usually a group 45
meeting where they get together and they’ll discuss their products. There’s a lot
of comradery. They all meet in one common area in the depot, usually a square
or round table in the middle. They’ll have stools or chairs around this table. They
get their orders ready, any preorders they might have that day. They talk to each
other. Management is present sometime during those meetings. They get in 50
their trucks and they head out. And after a long day, they come back to the same
depot at night, handle their records, their orders, make delivery to the local bank
JD(SF)-27-12
3
and most depots to make their deposits for the day. So there’s—the employees
get together before each day’s shift, and they get together each day after their
shifts.
Bock testified that he has been present during many of these group meetings and has listened 5
to the employees’ discussions about wages, hours and working conditions, including complaints
about supervisors. Such discussions are routine, and are not discouraged. All route sales
representatives in a given geographic area are paid the same base salary, with commissions
based on all sales and with additional guarantees for showing up to work and meeting time
targets. 10
According to Bock, the earnings of each route sales representative is
an open book. You walk into a depot. Each employee’s sales goals and actual
day-to-day sales are posted for everyone to see. It’s a very competitive 15
environment, generally, a very friendly competitive environment. Employees are
teasing each other about outdoing each other or about a bad day they might
have had. But the numbers are posted for all to see and are the subject of much
discussion.
20
Such discussions are encouraged; no employee has ever been disciplined for discussing sales
goals or compensation numbers with other employees, and each employee knows, on a daily
basis, how much their coworkers are earning.

At all material times, the Respondent has maintained and issued to all new hires, 25
including warehouse workers and route sales representatives, an employee handbook
consisting of 29 pages, entitled the “Schwan Food Company Employee Handbook.” Four of the
rules contained in the current Employee Handbook are at issue in this matter. 3 The Respondent
has denied that any portions of the rules are unlawful.
30
(Rule 18): Solicitation and Organizational Work
With the exception of the annual United Way drive and other
charitable activities sponsored by the company, all employees are
strictly prohibited from soliciting other employees or being solicited35
by other employees or non-employees for any purpose during
working time in any work area of a plant or other company facilities.
All employees are also strictly prohibited from distributing, receiving
or posting pamphlets, cards, handbills or other written materials
during work time in any work area and any public area of a plant or40
other company facilities. Distribution and solicitation is permitted during
non-work time (such as free time, rest breaks or lunch time) in non-work
areas (break room) of a plant or other company facilities).
(Rule 12): Security of Company Information 45
You are not permitted to reveal information in company records to
unauthorized persons or to deliver or transmit company records to
unauthorized persons. Trade secret information including, but not limited
to, information on devices, inventions, processes and compilations of 50

3 The alleged unlawful provisions of the rules are in bold type.
JD(SF)-27-12
4
information, records, specifications, and information concerning
customers, vendors or employees shall not be disclosed, directly or
indirectly, or used in any way, either during the term of employment or at
any time thereafter, except as required in the course of employment with
Schwan. Employees will abide by Schwan’s policies and practices as 5
established from time to time for the protection of its trade secret information.
Schwan’s business shall not be discussed with anyone who does not work
for Schwan or with anyone who does not have a direct association with the
transaction.
10
(Rule 17): Use of the Company Name
You are not permitted to purchase any material as a charge to the
company without authorized management approval. Any articles, speeches,
records of operation, pictures or other material for publication, in which the 15
company name is mentioned or indicated, must be submitted, through your
supervisor, for approval or disapproval by the Corporate Communications
and Law Departments prior to release. You are not permitted to negotiate or
sign any lease, purchase agreement, bill of sale, contract or other legal
document as a representative of the company, unless authorized to do so by 20
management nor are you permitted to express or imply to any
vendor the intention of the company to purchase, rent or lease any
tangible property, equipment, material, space or services.
(Rule 26): Conflicts of Interests 25
Employees shall avoid activities that could appear to influence their
objective decisions relative to their company responsibilities.
Continued employment with the company is dependent upon
strict avoidance of:30
a. Conflicts of interest or the appearance of such conflicts.
b. Conduct on or off duty which is detrimental to the best interests of the
company or its employees.
c. Employees shall avoid activities that might appear to result in fraud or waste.
d. Employees may not engage in any activity, on or off company premises, or be 35
employed in any capacity at Schwan which creates a actual or perceived conflict
of interest (e.g. an employee may not supervise an immediate family member or
a person with whom they have an intimate relationship; an employee may not
have a financial interest in a supplier or competitor). Please contact your local
Human Resource representative for specifics on how the employment of relatives 40
is handled in your facility.
The General Counsel maintains that Rule 18 is unlawful because it specifically permits
distribution and solicitation during nonwork time in nonwork areas and, accordingly, would be
reasonably understood by employees to prohibit such activity in work areas during employees’ 45
nonwork time; therefore, this restriction constitutes an impermissible infringement on
employees’ solicitation and distribution rights under the Act as set forth in Republic Aviation,
Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945).
In UPS Supply Chain, 357 NLRB No. 106 (2011) the Board stated:50
JD(SF)-27-12
5
We find, contrary to the judge, that the Respondent’s no-solicitation rule violates
Section 8(a)(1). Employers may ban solicitation in working areas during working
time but may not extend such bans to working areas during nonworking time.
See, e.g., Restaurant Corp. of America v. NLRB, 827 F.2d 799, 806 (D.C. Cir.
1987) (“[A]n employer may not generally prohibit union solicitation . . . during 5
nonworking times or in nonworking areas.”) (citing NLRB v. Babcock & Wilcox
Co., 351 U.S. 105, 112–113 (1956); Republic Aviation Corp. v. NLRB, 324 U.S.
793, 797–798 (1945)). In discussing the Respondent’s no-solicitation rule, the
judge focused solely on the restrictions placed on employees’ work time.
However, the Respondent’s rule also prohibits solicitation in work areas, and 10
does so without qualification. Fairly read, an employee would reasonably
understand the rule to ban solicitation in work areas even during nonwork time.
The rule is therefore impermissibly overbroad and violates Section 8(a)(1).
Bock testified that the Respondent has a “very open culture” with regard to employee 15
discussions of wages, hours and working conditions that permits such discussions on working
time in working areas. Further, this policy has been extended to situations in which the
employees, prior to impending union elections at two depots, one in Round Rock, Texas about
18 months ago, and another in Denver during an unspecified time period, were encouraged by
Bock and other corporate representatives to discuss union representation “pro and con” during 20
working time and in working areas, “not only in our presence, but then we left and said continue
your discussion, both sides…in the interest of making a full and fair informed decision.” Bock
testified that in this manner the Respondent’s “solicitation policy” not only has not been used to
preclude union activity but rather has been used to encourage such discussion.4
25
Employees’ discussions of wages and related matters among themselves in a spirit of
competitive comradery seem clearly designed as a company policy to promote sales production;
however, mere “discussions” are not tantamount to either “solicitation” or “distribution,” and
therefore employees would not reasonably interpret this interactive competitiveness as an
invitation to discuss, solicit for, and distribute materials on behalf of unions during work time and 30
in work areas.5 Further, I find that Bock’s anecdotal evidence in this regard-- involving two of
400 depots nationwide, and perhaps fewer than 40 employees-- is insufficient to put all 7000 of
the Respondent’s employees on notice that they may ignore the plain meaning of the language
in Handbook Rule 18 which implicitly, but clearly, prohibits solicitation and distribution in work
areas. Indeed, to the extent other employees at other depots may be aware of the discussions 35
that occurred in Round Rock, Texas and Denver, it appears they would reasonably conclude
that specific permission by management is needed before such union-related discussions
during work time in work areas may take place. Accordingly, I find that by maintaining the rule in
its handbook the Respondent has violated and is violating Section 8(a)(1) of the Act as alleged.
40

4 It appears, therefore, that Bock would equate employees’ merely expressing their pro-
union views during such discussions as “solicitation.” Bock did not testify that employees at
these meetings were also encouraged to engage in “solicitation” of union authorization cards or
“distribution” of union materials.
5 This is particularly true given the Respondent’s handbook policy entitled “Company
Philosophy Towards Labor Unions,” including the following: “The company is opposed to the
unionization of Schwan because the needs of our employees are best served by retaining the
ability to converse one-on-one with management, avoiding third party intervention and
rewarding employees based on each employee’s individual merit…By remaining union free, the
working atmosphere between employees and between employees and management will remain
open and honest.”
JD(SF)-27-12
6
Regarding Handbook Rule 12, Security of Company Information, Handbook Rule 17,
Use of the Company Name, and Handbook Rule 26, Conflicts of Interests, I conclude that an
employee reading these rules would reasonably understand that the rules were designed to
protect and insulate the Respondent from situations which would compromise its financial, trade
secret, brand name and other proprietary interests including the “good will” associated with the 5
Respondent’s brand name and the acquiring and retention of customers which could be
adversely affected by inappropriate employee conduct “on or off duty.” I do not believe the rules,
singly or collectively, even though they prohibit disclosure of information regarding employees
and also prohibit certain employee conduct, would reasonably cause this Respondent’s
employees to refrain from protected activity under the Act. I shall dismiss these allegations of 10
the complaint. See Lafayette Park Hotel, 326 NLRB 824 (1998); Super Kmart, 330 NLRB 263
(1999); Mediaone of Greater Florida, 340 NLRB 277 (2003).
The complaint alleges that certain language contained in Respondent’s
“Employment, Confidentiality, Ownership & Noncompete Agreement” (Agreement) is 15
unlawful. The Agreement is a lengthy, single-spaced, small font, difficult-to-read, two-
page, double-sided, standardized document. All Respondent’s employees are required
to execute the Agreement at the time of hire and again sign the then-current Agreement
when they are promoted or change jobs within the company. Under the heading
“Confidential and Proprietary Information; Ownership and Assignment of Rights,” the 20
following paragraph appears:
Stipulation. Employer and Employee agree that during the course of
Employee’s employment, Employee will have access to Confidential and
Proprietary Information as defined below. Such information has been 25
developed by Employer at great expense over many years of substantial
effort, and were competitors of Employer to obtain such information there
would result a substantial and irreparable adverse effect upon the
business of Employer. Employee agrees that the Employer owns all such
Confidential and Proprietary Information. (Underlining supplied.) 30
Under the heading “Scope” the Agreement goes on to state, “Confidential and
Proprietary information shall include any information pertaining in any way but not
limited to…,” and then sets forth an extensive catalogue of what is considered to be
encompassed within the definition of confidential and proprietary information. Toward 35
the end of this litany of matters, items and concepts that the Respondent deems to be
confidential and proprietary, is included the following: “any information pertaining to the
wages, commissions, performance, or identity of employees of Employer.”
The complaint alleges and the General Counsel maintains that as the Agreement 40
restricts employees from disclosing to “any person not in the employ of the Employer”
any “Confidential or Proprietary” information, and as confidential and proprietary
information includes the above-quoted language pertaining to the “wages, commissions,
performance or identity of employees,” such a restriction precludes employees from
sharing such information with a union and is therefore violative of Section 8(a)(1) of the 45
Act.
I conclude that employees entering into the Agreement, who make the effort to
read through it, would reasonably understand that the Respondent in this portion of the
JD(SF)-27-12
7
Agreement is concerned with, and is attempting to prohibit the route sales
representatives from disclosing, “confidential and proprietary” information to the
Respondent’s “competitors,” and that this is the thrust, import and intent of this section
of the Agreement. The Respondent has legitimate concerns that its route sales
representatives could be more easily recruited away from the Respondent by 5
competitors if competitors became aware of the identity, performance skills, and
earnings of particular route sales representatives. Accordingly, I find that employees
would not reasonably read this rule as prohibiting Section 7 activity. I shall dismiss this
allegation of the complaint. See Mediaone of Greater Florida, supra, at page 279.
10
The complaint alleges that certain language contained in Respondent’s
termination letters is unlawful. The Respondent, in a prehearing document headed
“Joint Stipulation and Joint Exhibits” stipulated that
At times material to this proceeding, the Respondent issued termination 15
letters at various times and to various employees nationwide, which
stated:
In addition, the intent of this letter is to inform you that you
are prohibited by the terms of the employment agreement 20
you signed with Schwan’s from contacting your former
customers and former co-workers.
In support of this stipulation a termination letter dated April 22, 2011 containing the above
language was introduced in evidence by the General Counsel25
However, despite this stipulated language, the Respondent, prior to the hearing
herein engaged in an extensive, random investigation of termination letters, which
demonstrated that not one of the hundreds of termination letters issued over an
extended period of time contained language prohibiting terminated employees from 30
contacting “former co-workers.”6 Rather, all of the termination letters, introduced into
evidence, randomly compiled due to the fact that there were simply too many
terminations to perform an exhaustive survey,7 contained the following language:8
This letter will also serve as a reminder that at the time of hire, you 35
executed an Employment, Confidentiality and Non-compete agreement,
which includes, but is not limited to an agreement that you will not contact
Home Service Customers you previously serviced during your
employment.
40

6 Obviously, the Respondent’s random investigation did not uncover the letter introduced
into evidence by the General Counsel in support of the stipulation.
7 Bock testified that the Respondent’s voluntary and involuntary termination rate at the
current time “is about 60 percent a year right now…so you’re talking about 4,000 plus
terminations.”
8 A few of the letters contained no language whatsoever prohibiting the contacting of either
customers or former co-workers.
JD(SF)-27-12
8
The General Counsel maintains that the language in either termination letter,
whether prohibiting terminated employees from contacting former customers, or from
contacting both former co-workers and customers, is similarly violative of the Act.
I credit the testimony of Bock and find that he personally caused the survey to be 5
conducted by subordinates in a valid and unbiased manner that was not manipulated to
arrive at a preconceived result. Accordingly, I find that the standard form for termination
letters contains the immediately foregoing language, and not the language set forth in
the stipulation. Thus, while the stipulation states that termination letters “at various
times and to various employees nationwide” contained the stipulated language, the 10
evidence shows, and I find, that such letters do not reflect the Respondent’s standard
and customary practice.
Bock testified that the relationship between the route sales representatives and
customers is commonly a very close relationship that could be compromised in the 15
event of termination. The route sales representatives deliver products to customer’s
homes and businesses on a regular basis, sometimes receive gifts from customers for
good service, have the credit card numbers of customers, and often have access to the
customers’ homes when they are away so that frozen food products may be placed in
the customers’ freezers. For obvious reasons the Respondent simply does not want the 20
customers to become enmeshed in termination matters: not only could this cause the
customers to refrain from buying products from the Respondent, but also terminated
employees could attempt to solicit business for competitors of the Respondent.
The termination letters refer to the “employment agreement” or “Employment, 25
Confidentiality and Non-compete” agreement as the underlying document restricting
contact between terminated employees and customers or former co-workers.
Accordingly, the termination letters alone are inherently incomplete, and the termination
letters and Agreement to which the letters refer must be read together.
30
The portion of the Agreement pertaining to contacting customers is as follows:
Employee agrees that during the term of Employee’s employment and for
twelve (12) months after the termination of such employment, Employee
will not…contact or solicit competing business from anyone who had been 35
a customer of Employer in the geographic or job function areas assigned
to Employee.
The portion of the Agreement pertaining to contacting former co-workers is as
follows:40
Employee agrees that during the term of Employee’s employment and for
twelve (12) months after the termination of such employment, Employee
will not induce or attempt to induce any person who is an employee of
Employer to leave the employ of Employer and engage in any business 45
which competes with Employer.
JD(SF)-27-12
9
I find that a reasonable reading of either termination letter together with the
Agreement would cause a terminated employee to understand that the restrictions
regarding contacting either current employees or customers is not designed to curtail
activity protected by Section 7 of the Act, but rather is designed to preclude terminated
employees from enmeshing customers in termination matters and from recruiting either 5
customers or current employees for competitors of the Respondent. Accordingly, the
Respondent has overriding legitimate business considerations for imposing such
restrictions. I shall dismiss this allegation of the complaint.
The complaint alleges that certain language contained in the Respondent’s “Employee 10
Suspension Notice” is unlawful. Insofar as the record evidence shows, the Employee
Suspension Notice is a one-page pre-printed document issued to employees who are being
placed on an unpaid suspension either for disciplinary reasons or pending the outcome of an
internal investigation. The notice contains a space for specifying the reason(s) for the
suspension, and advises the employee of certain requirements and prohibitions to which the 15
employee must adhere during the suspension/investigation.
The parties stipulated that:
At times material to this proceeding, the Respondent issued suspension notices 20
at various times and to various employees nationwide, which stated:
You are prohibited from contacting customers or employees and from
discussing your status with anyone inside or outside the company.
25
In addition, the single suspension notice introduced into evidence in this proceeding, dated
July 27, 2011, contains further prohibitions:
You are prohibited from entering any property owned or leased by The Schwan
Food Company, unless requested by your manager or the investigator.30
You are prohibited from accessing any company information during this
suspension. Not limited to, but including any e-mails or voicemails.
A blanket rule prohibiting employees under investigation for rule or policy infractions 35
from contacting and discussing the matter with other employees during the course of the
investigation is per se unlawful. The Board, in Hundai America Shipping Agency, Inc., 357
NLRB No. 80 (2011), adopted the conclusion of the administrative law judge on this issue, who
stated, at slip op. p 15, as follows:
40
In light of the Phoenix Transit and [Caesar’s] Palace cases,9 it seems obvious
that the Board is attempting to strike a balance between the employees’ Section
7 right to discuss among themselves their terms and conditions of employment,
and the right of an employer, under certain circumstances, to demand
confidentiality. The burden is clearly with an employer to demonstrate that a 45
legitimate and substantial justification exists for a rule that adversely impacts on
employee Section 7 rights.

9 Phoenix Transit Systems, 337 NLRB 510 (2002); Caesar’s Palace, 336 NLRB271 (2001).
JD(SF)-27-12
10
I am of the view that in the matter at hand, the Respondent has failed to meet its
burden. It is undisputed that the Respondent’s managers and human resource
supervisors routinely instruct employees involved in investigations not to talk with
other employees about the substance of those investigations. Such admonitions
are apparently given in every case, without any individual review to determine 5
whether such confidentiality is truly necessary. Under the Board’s balancing test,
it is the Respondent’s responsibility to first determine whether in any given
investigation witnesses need protection, evidence is in danger of being
destroyed, testimony is in danger of being fabricated, and there is a need to
prevent a cover up. Only if the Respondent determines that such a corruption of 10
its investigation would likely occur without confidentiality is the Respondent then
free to prohibit its employees from discussing these matters among themselves.
There is no evidence that the Respondent conducts any such preliminary
analysis. To the contrary, it seems that the Respondent merely routinely orders
its employees not to talk about these matters with each other.15
The Respondent has failed to demonstrate that a legitimate and substantial
justification exists for a rule that adversely impacts on employee Section 7 rights.
It has failed to meet its burden of proof. Accordingly, I conclude that the
Respondent has unlawfully maintained an overly broad and discriminatory oral 20
rule prohibiting employee from discussing matters under investigation and by
implicitly threatening employees with discipline if they violate that rule.
The Respondent maintains that the evidence introduced by the General Counsel does
not show that the Respondent’s prohibition applies in all suspension situations. Thus, the 25
aforementioned stipulation merely concedes that the Respondent issued such suspension
notices “at various times and to various employees nationwide.”
Unlike the similar stipulated language pertaining to the termination notices, supra,
however, regarding which the Respondent initiated an extensive investigation and survey and 30
introduced abundant evidence that the single termination notice placed in evidence by the
General Counsel appeared to be an anomaly or at least not a standard and customary practice,
the Respondent has not demonstrated that the suspension notices, nationwide, as a general
practice, do not contain the aforementioned unlawful language. Nor did Bock so testify.
35
In the instant case it is clear that the Respondent’s pro-forma suspension notices limiting
employees Section 7 right to discuss matters for which they are being investigated, or for which
they are receiving a disciplinary suspension,10 is unlawful. As noted above, an employer may
not impose such restrictions absent a substantial justification for doing so in each given
situation. Hundai America Shipping Agency, Inc., supra. Accordingly, by such conduct, I find 40
the Respondent has violated and is violating Section 8(a)(1) of the Act as alleged.
Conclusions of Law and Recommendations
1. The Respondent is an employer engaged in commerce within the meaning of 45
Section 2(2) (6) and (7) of the Act.

10 It would seem to make no difference whether the investigation is taking place while the
employee remains on the job, whether the suspension is a disciplinary suspension, or whether
the employee is suspended pending investigation. In each of these instances the employee is
entitled to exercise his or her Section 7 rights.
JD(SF)-27-12
11
2. The Respondent has violated Section 8(a)(1) of the Act as found herein.
The Remedy
Having found that the Respondent has violated and is violating Section 8(a)(1) of the 5
Act, I recommend that the Respondent be required to cease and desist from promulgating and
maintaining in effect the employee handbook provision and the standard suspension notice that
preclude and interfere with the Section 7 rights of employees to engage in union and protected
concerted activity. I further recommend that the Respondent be required to cease and desist
from in any other like or related manner interfering with, restraining, or coercing its employees in 10
the exercise of their rights under Section 7 of the Act. Finally, I shall recommend the posting of
an appropriate notice, attached hereto as “Appendix.”
ORDER11
15
The Respondent, Schwan’s Home Service, Inc., a Wholly Owned Subsidiary of The
Schwan Food Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
20
(a) Promulgating and maintaining in effect the employee handbook provision and
the standard suspension notice that preclude and interfere with the Section 7
rights of employees to engage in union and protected concerted activity.
(b) In any like or related manner interfering with, restraining, or coercing 25
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the purposes
of the Act:
30
(a) Modify the employee handbook provision and the standard suspension notice
found to interfere with the rights of employees to engage in union and protected
concerted activities under Section 7 of the Act, and advise its employees,
nationwide, by appropriate means, that the handbook provision and the standard
suspension notice have been revised.35
(b) Within 14 days after service by the Region, post at its facilities nationwide
copies of the attached notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 27, after being duly signed by
Respondent’s representative(s), shall be posted immediately upon receipt 40
thereof, and shall remain posted by Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the

11 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 If this Order is enforced by a judgment of the United States Court of Appeals, the wording
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(SF)-27-12
12
Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. Further, when the handbook provision and standard
suspension notice have been modified, notify its employees nationwide, by
appropriate means, of the new modified handbook and standard suspension
notice provisions.5
(c) Within 21 days after service by the Regional Office, file with the Regional
Director for Region 27 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.10
Dated at Washington, D.C. June 6, 2012
Gerald A. Wacknov
Gerald A. Wacknov15
Administrative Law Judge
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 modify our employee handbook provision that limits your right to engage in the above
activities during nonwork time in work areas of our facilities.
WE WILL modify our standard suspension notice form that limits the right of suspended
employees from engaging in the above activities during periods of disciplinary suspension or
when they are suspended pending investigation.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
SCHWAN'S HOME SERVICE, INC.
A WHOLLY OWNED SUBSIDIARY OF
THE SCHWAN FOOD COMPANY
(Employer)
Dated: _______________ By: ____________________________________________
(Representative) (Title)
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 with any other material. Any questions concerning this notice or
compliance with its provisions may be referred to the Board’s office, 600 17th Street - 7th Floor,
North Tower, Denver, CO 80202-5433, Phone 303/844-3551.