Scott Bros. Dairy

National Labor Relations Board - Board Decisions

Dec 26, 2000

332 N.L.R.B. 1542 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1542
Stan Scott d/b/a Scott Brothers Dairy, a Sole Proprie-
torship and Wholesale and Retail Food Distribu-
tion Teamsters Local 63, affiliated with Interna-
tional Brotherhood of Teamsters, AFL–CIO and
Stephen Edmondston, Party in Interest. Cases
31–CA–23438, 31–CA–23704, and 31–CA–23741
December 26, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On June 7, 1999, Administrative Law Judge Frederick
C. Herzog issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed “exceptions to the General Counsel’s answering
brief.”
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, to
modify the remedy,2 and to adopt the recommended Or-
der, as modified and set forth in full below.3
We agree with the judge, for all the reasons he stated,
that the Respondent’s withdrawal of recognition was
tainted by its serious unremedied unfair labor practices.
The Board has consistently held that certain kinds of
unfair labor practices are likely to cause employee disaf-
fection from their bargaining representative.4 We con-
clude, as did the judge, that the unfair labor practices the
Respondent committed in this case had a tendency to
undermine the unit employees’ support for the Union.
These violations include polling employees concerning
their own and other employees’ union activities, solicit-
ing employees to sign an antiunion petition, threatening
employees that it would not sign another union contract,
impliedly threatening employees with job loss if they
persisted with contract demands and with the futility of
bargaining if they continued to support the Union, and
unilaterally changing employees’ terms and conditions of
employment in the absence of a bargaining impasse.
Thus, in this context, the Respondent could not justify its
withdrawal of recognition and thereby lawfully sever its
bargaining relationship by presenting evidence of em-
ployee dissatisfaction with the Union.

1 Based on our recent decision in Hacienda Resort Hotel & Casino,
331 NLRB No. 89 (2000), the General Counsel has moved to withdraw
the allegation that the Respondent violated Sec. 8(a)(5) of the Act by
discontinuing dues checkoff for the unit employees on expiration of the
parties’ collective-bargaining agreement. We grant the General Coun-
sel’s motion, vacate the judge’s finding that the Respondent further
violated the Act by this conduct, and shall modify the judge’s conclu-
sions of law, Order, and notice accordingly.
2 As the judge found, the Respondent violated Sec. 8(a)(5) by refus-
ing to grant the Union’s representatives access to its premises after
withdrawing recognition from the Union. We modify the judge’s rem-
edy, Order, and notice to include a provision that the Respondent grant
the Union access to its premises as required by the parties’ expired
collective-bargaining agreement.
3 We shall set forth in full a new Order to conform with the require-
ments of Excel Container, 325 NLRB 17 (1997). That Order, as well
as the attached notice, shall reflect the General Counsel’s withdrawal of
the allegation that the Respondent unlawfully ceased making dues
deductions for the unit employees and remitting such funds to the Un-
ion on contract expiration.
4 See, e.g., Master Slack Corp., 271 NLRB 78, 84 (1984).
We further conclude that, even in the absence of any
unfair labor practices, this Respondent had no valid basis
for withdrawing recognition. We agree with the judge
that the Respondent’s asserted belief that some employ-
ees were not current in their dues payments to the Union
does not constitute a basis for the Respondent’s with-
drawal of recognition. Although a decertification peti-
tion had been filed approximately 4 months before the
withdrawal, there is no evidence in the record that it was
supported by a majority.5 Further, it is unclear whether
the Respondent relied on this petition in withdrawing
recognition and, in any event, the Respondent has not
relied on the petition in its brief on exceptions. For these
reasons, the decertification petition, even assuming that it
was not tainted by the Respondent’s unfair labor prac-
tices, is insufficient to establish that the Respondent law-
fully withdrew recognition based on a good-faith doubt
as to the Union’s continuing majority status.6
Our conclusion in this regard is not altered by the Su-
preme Court’s decision in Allentown Mack Sales & Ser-
vice v. NLRB, 522 U.S. 359 (1998). In that case, the
Court held that “doubt” meant “uncertainty,” so that the
test could be phrased in terms of whether the employer
“lacked a genuine, reasonable uncertainty about whether
[the union] enjoyed the continuing support of a majority
of unit employees.” Id. at 367. We find that the Re-
spondent’s asserted basis for its withdrawal of recogni-
tion is insufficient, regardless of whether the test is
phrased in terms of “good faith reasonable doubt” of the
Union’s majority support or “genuine, reasonable uncer-
tainty about whether the Union enjoyed the continuing
support of a majority of unit employees.” See, e.g.,
Scepter Ingot Castings, 331 NLRB No. 153 (2000).7
5 The Regional Director dismissed the petition about 2 months be-
fore the Respondent withdrew recognition based on evidence that the
showing of interest was tainted by virtue of the Respondent’s participa-
tion in obtaining it and by various unfair labor practices that preceded
its filing.
6 Also, as the judge found, there is no evidence demonstrating that
the Union ever lost its majority status among the unit employees, and
the Respondent does not argue to the contrary in its brief on exceptions.
7 Member Hurtgen agrees with his colleagues that the employee dis-
affection from the Union was tainted by the Respondent’s antecedent
unfair labor practices. Member Hurtgen does not reach the issue of
whether, absent such unfair labor practices, the disaffection would have
been sufficient to privilege a withdrawal of recognition. See Allentown
Mack v. NLRB, supra. However, as to that issue, he wishes to make it
clear that he believes that the “uncertainty” test of Allentown Mack is
the appropriate one.
332 NLRB No. 163
SCOTT BROS. DAIRY 1543
We also agree, for the reasons fully set forth in
Caterair International, 322 NLRB 64 (1996), that an
affirmative bargaining order is warranted in this case as a
remedy for the Respondent’s unlawful withdrawal of
recognition from the Union. We adhere to the view, re-
affirmed by the Board in that case, that an affirmative
bargaining order is “the traditional, appropriate remedy
for an 8(a)(5) refusal to bargain with the lawful collec-
tive-bargaining representative of an appropriate unit of
employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In the Vincent case, the court
summarized the court’s law as requiring that an affirma-
tive bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three con-
siderations: (1) the employees’ Section 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.8
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. An affirmative bar-
gaining order, with its attendant bar to raising a question
concerning the Union’s continuing majority status for a
reasonable time, does not unduly prejudice the Section 7
rights of employees who may oppose continued union
representation because the duration of the order is no
longer than is reasonably necessary to remedy the ill ef-
fects of the violation.
Moreover, we note that, in addition to unlawfully
withdrawing recognition, the Respondent also refused to
bargain with the Union by unilaterally implementing a
wage increase and 401(k) plan for the unit employees,
unilaterally changing employees’ health and welfare
benefits, prohibiting the Union’s representatives from
gaining access to its premises as provided in the expired
collective-bargaining agreement, and refusing the Un-
ion’s request for information necessary for and relevant
to the bargaining process. The Respondent also polled
employees concerning their own and other employees’

8 Member Hurtgen agrees with the court’s requirement.
union activities; solicited employees to sign an antiunion
petition; coercively interrogated employees; threatened
employees that it would not sign another collective-
bargaining agreement with the Union; told employees
that it would sell the business before signing another
union contract; and impliedly threatened employees with
job loss if they persisted with contract demands and the
futility of bargaining if they continued to support the
Union. We stress that, as the judge found, the evidence
in this case fails to establish that the Union ever actually
lost its majority status and the Respondent does not con-
tend otherwise. Even if it did, that loss of majority
would not reflect employee free choice under Section 7
of the Act, but the effect of the Respondent’s unfair labor
practices. We find that these additional circumstances
further support giving greater weight to the Section 7
rights that were infringed by the Respondent’s unlawful
withdrawal of recognition.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the Respondent’s unfair labor practices were of
a continuing nature and were thus likely to have a con-
tinuing effect, thereby tainting any employee disaffection
from the Union arising during that period or immediately
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.9
9 See generally Raven Government Services, 331 NLRB No. 84, slip
op. at 1–2 (2000).
Member Hurtgen agrees that, based on the conduct in the instant
case, an affirmative bargaining order is appropriate. More particularly,
the Respondent engaged in significant 8(a)(5) conduct by making uni-
lateral changes in employees’ terms and conditions of employment in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1544
AMENDED CONCLUSION OF LAW
Delete Conclusion of Law 6(f).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Stan Scott d/b/a Scott Broth-
ers Dairy, a Sole Proprietorship, Chino, California, his
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively in
good faith with respect to wages, hours, and other terms
and conditions of employment with Wholesale and Retail
Food Distribution Teamsters Local 63, affiliated with the
International Brotherhood of Teamsters, AFL–CIO, as
the exclusive collective-bargaining representative of em-
ployees in the following appropriate unit, and cease and
desist from making unilateral changes in terms and con-
ditions of employment where no bargaining impasse ex-
ists and which, in any event, are inconsistent with its last
and final offer to the Union.

All milk plant and combination plant employees,
wholesale route drivers, semi-truck drivers and tank
drivers employed by the Respondent at its Chino, Cali-
fornia facility; excluding all other employees, guards,
and supervisors as defined bythe Act.

(b) Refusing to bargain collectively with the Union by
changing bargaining unit employees’ wages, hours, or
other terms and conditions of employment, including
their health and welfare benefits and their pension plans
(including a 401(k) plan), without bargaining with the
Union in good faith to a valid impasse.
(c) Refusing to bargain collectively with the Union by
failing and refusing to provide information that the Un-
ion has requested and that is necessary for the Union to
carry out its duties as the exclusive and duly designated
collective-bargaining representative of the unit employ-
ees.
(d) Refusing to bargain collectively with the Union by
refusing to permit the Union’s authorized representatives
to have access to the Respondent’s premises so that they
may carry out their duties as the duly designated collec-
tive-bargaining representative of the unit employees.
(e) Interrogating employees concerning their union
membership or activities.
(f) Polling employees concerning their own and other
employees’ union activities, leanings, and sympathies
without first giving them requisite assurances that their
answers will not be used against them.

the absence of a bargaining impasse before the ultimate 8(a)(5) viola-
tions that include the withdrawal of recognition. In these circum-
stances, it is appropriate to give the Union a reasonable period in which
to regain the status that it enjoyed before the unlawful conduct.
(g) Soliciting employees to sign antiunion cards or pe-
titions.
(h) Threatening employees that it would not sign an-
other union contract; telling employees that the Respon-
dent would sell the business before signing another union
contract; and impliedly threatening employees with job
loss if the Union persisted with contract demands and
with the futility of bargaining if they continued to sup-
port the Union.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively in
good faith with the Union as the exclusive collective-
bargaining representative of the unit employees with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if an
agreement is reached, embody such understanding in a
signed agreement.
(b) Within 14 days from the date of this Order, make
whole the bargaining unit employees by paying all pen-
sion, health, and welfare contributions as provided in the
collective-bargaining agreement between the Respondent
and the Union that terminated May 30, 1998, which have
not been paid and which would have been paid but for
the Respondent’s unlawful conduct, and continue such
payments until the time set forth in the remedy section of
the decision.
(c) On the Union’s written request, and in the manner
set forth in the remedy section of the decision, rescind
the medical and dental insurance coverage for the unit
employees which the Respondent has unlawfully imple-
mented and immediately re-establish for these employ-
ees, without any lapse in coverage, the medical and den-
tal insurance coverage that the Respondent unlawfully
terminated.
(d) Within 14 days from the date of this Order, pro-
vide the Union with the information that the Union re-
quested on January 26, 1999.
(e) Within 14 days from the date of this Order, grant
the Union’s representatives access to its premises as re-
quired by the parties’ expired collective-bargaining
agreement.
(f) Within 14 days from the date of this Order, make
whole the unit employees for any losses they sustained as
a result of the Respondent’s contributions to health and
welfare funds other than those authorized by employees
as indicated above.
(g) On the Union’s written request, rescind the 401(k)
plan that the Respondent unilaterally implemented in
violation of the Act.
(h) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
SCOTT BROS. DAIRY 1545
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its premises in Chino, California, in English and Spanish,
copies of the attached notice marked “Appendix.”10 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by the Respon-
dent’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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at his own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 27, 1998.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to recognize and bargain collec-
tively in good faith with respect to wages, hours, and
other terms and conditions of employment with Whole-
sale and Retail Food Distribution Teamsters Local 63,

10 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.”
affiliated with the International Brotherhood of Team-
sters, AFL–CIO, as the exclusive collective-bargaining
representative of employees in the following appropriate
unit, and WE WILL NOT make unilateral changes in
terms and conditions of employment where no bargain-
ing impasse exists and which, in any event, are inconsis-
tent with our last and final offer to the Union.

All milk plant and combination plant employees,
wholesale route drivers, semi-truck drivers and tank
drivers employed by us at our Chino, California facil-
ity; excluding all other employees, guards, and supervi-
sors as defined by the Act.

WE WILL NOT refuse to bargain collectively with the
Union by unilaterally changing our bargaining unit em-
ployees’ wages, hours, or other terms and conditions of
employment, including their health and welfare benefits
and their pension plans (including a 401(k) plan), with-
out bargaining with the Union in good faith to a valid
impasse.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to provide information that
the Union has requested and that is necessary for the Un-
ion to carry out its duties as the exclusive and duly des-
ignated collective-bargaining representative of our em-
ployees.
WE WILL NOT refuse to bargain collectively with the
Union by refusing to permit the Union’s authorized rep-
resentatives to have access to our premises so that they
may carry out their duties as the duly designated collec-
tive-bargaining representative of our employees.
WE WILL NOT interrogate our employees concerning
their union membership or activities.
WE WILL NOT poll our employees concerning their
own and other employees’ union activities, leanings, and
sympathies without first giving them requisite assurances
that their answers will not be used against them.
WE WILL NOT solicit our employees to sign anti-
union cards or petitions.
WE WILL NOT threaten our employees that the Com-
pany would not sign another union contract; tell our em-
ployees that the Company would sell the business before
signing another union contract; and impliedly threaten
employees with job loss if the Union persisted with con-
tract demands and with the futility of bargaining if they
continued to support the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain collec-
tively in good faith with the Union as the exclusive col-
lective-bargaining representative of our employees with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1546
agreement is reached, embody such understanding in a
signed agreement.
WE WILL, within 14 days from the date of this Order,
make whole our employees by paying all pension, health,
and welfare contributions as provided in our collective-
bargaining agreement with the Union that terminated on
May 30, 1998, which have not been paid and which
would have been paid but for our unlawful conduct.
WE WILL, on the Union’s written request, rescind the
medical and dental insurance coverage for the unit em-
ployees which the Company has unlawfully implemented
and immediately re-establish for these employees, with-
out any lapse in coverage, the medical and dental insur-
ance coverage that has been unlawfully terminated.
WE WILL, within 14 days from the date of this Order,
provide the Union with the information that the Union
requested on January 26, 1999.
WE WILL, within 14 days from the date of this Order,
grant the Union’s representatives access to our premises
as required by the expired collective-bargaining agree-
ment.
WE WILL, within 14 days from the date of this Order,
make whole our employees for any losses they sustained
as a result of our contributions to health and welfare
funds other than those authorized by employees as indi-
cated above.
WE WILL, on the Union’s request, rescind the 401(k)
plan that the Company has unilaterally and unlawfully
implemented.

STAN SCOTT D/B/A SCOTT BROTHERS
DAIRY

Mori Pam Rubin, Esq., for the General Counsel.
Norman E. Jones (Jones, Jones & Jones), of Newport Beach,
California, for the Respondent.
Jeffrey L. Cutler and Nicholas J. Waddles, Esqs. (Wohlner,
Kaplon, Phillips, Young & Barsh), of Encino, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge.
These cases were heard by me in Los Angeles, California, on
January 19 and May 18, 1999, and are based on charges (sub-
sequently amended) filed by Wholesale and Retail Food Distri-
bution Teamsters Local 63, affiliated with the International
Brotherhood of Teamsters, AFL–CIO (the Union) on June 23,
1998, and January 27 and February 17, 1999, alleging generally
that Stan Scott d/b/a Scott Brothers Dairy, a sole proprietorship
(Respondent) committed certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). On Sep-
tember 29, 1998, and March 25, 1999, the Regional Director
for Region 31 of the National Labor Relations Board (the
Board) issued complaints and notices of hearing, subsequently
consolidated, alleging violations of Section 8(a)(1) and (5) of
the Act. Respondent filed timely answers to the allegations
contained within the complaints, denying all wrongdoing.
All parties appeared at the hearing, and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to file
briefs. Based on the record, and my observation of the de-
meanor of the witnesses, and my consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The complaints allege, and the answers admit, that Respon-
dent is a sole proprietorship, owned by Stan Scott, doing busi-
ness as Scott Brothers Dairy, at its facility located in Chino,
California, engaging in the business of processing, packaging
and distributing dairy products and juices; and that in the
course and conduct of its business operations, it annually pur-
chases and receives in California goods valued in excess of
$50,000 directly from entities outside the State of California.
Accordingly, I find and conclude that Respondent is now,
and at all times material here has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaints allege that the Union is now, and at all times
material here has been, a labor organization within the meaning
of Section 2(5) of the Act. While Respondent’s answers claim
that Respondent has no knowledge of this matter, and, there-
fore, deny it, Respondent ultimately stipulated to the truth of
the allegations in the complaints. Moreover, it is clear and
undenied that Respondent has for many years had a collective-
bargaining relationship with the Union. Additionally, accord-
ing to the credible, undenied testimony of Carlos Barnett, the
Union’s business representative, the Union maintains collec-
tive-bargaining relationships with many employers, with whom
it deals regarding grievances, wages, working conditions, and
benefits of employees. Additionally, employees participate
therein (for example, by serving on committees, and by serving
as stewards).
Accordingly, I find and conclude that the Union is now, and
at all times material here has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Labor Relations History
Based on the allegations in the complaints, as admitted in
Respondent’s answers, I find and conclude that since on or
about 1973 the Union has been the designated collective-
bargaining representative of the unit described below, and ever
since that time, until recently, the Union has been recognized as
the representative by Respondent. This recognition has been
embodied in successive collective-bargaining agreements, the
most recent of which was effective from June 1, 1995, through
May 30, 1998.
The unit appropriate for collective bargaining, as described
in the agreements noted above, is as follows:

Included: All milk plant and combination plant em-
ployees, wholesale route drivers, semi-truck drivers
and tank drivers employed by the Respondent at its
Chino, California facility.
SCOTT BROS. DAIRY 1547
Excluded: All other employees, guards and supervisors
as defined in the Act.

Accordingly, I find and conclude that at all times material
here, unless shown otherwise below, since about 1973 the Un-
ion has been the exclusive duly designated collective-
bargaining representative of the employees in the unit described
above.
As admitted in the answer, Respondent’s agreement with the
Union contained union-security provisions including, inter alia,
union membership after 30 days’ employment, union dues de-
ductions, and employer notification to the union of new hires,
and provisions for employer contributions on behalf of unit
employees to the South Bay Teamsters and Employers Benefit
Trust Fund health plan and to the Western Conference of
Teamsters Pension Trust Fund (the Teamster Trust Funds).
As admitted in the Answer, Respondent and the Union
commenced negotiations for a successor collective-bargaining
agreement on or about May 8, 1998.
As admitted in the answer, on or about July 1, 1998, Re-
spondent implemented and made retroactive to June 1, 1998, a
$1-per-hour increase in unit employee hourly wages.
B. The Issues and Factual Findings
1. The alleged violations of Section 8(a)(1)
a.
The amended complaint in Case 31–CA–23438 alleges that
Respondent, at the facility, between March 27 and 30, 1998,
unlawfully polled employees as to their union sentiments, and
solicited them to sign an antiunion petition, later filed by Re-
spondent in Case 31–RM–1258.
According to the stipulated facts, Respondent, through Vin-
cent Sartain, at the Chino facility, polled unit employees as to
their union sentiments and solicited them to sign an antiunion
petition, which Respondent later filed in support of the petition
in case 31–RM–1258. Thus, I find and conclude that the facts
alleged in paragraph 8 of the amended complaint in Case 31–
CA–23438 are true.
b.
The amended complaint in Case 31–CA–23438 alleges that
Respondent, through an admitted supervisor named Vincent
Sartain, told an employee on or about March 27, 1998, that
Respondent would not sign another union contract, and impli-
edly threatened the employee with job loss if the Union per-
sisted with contract demands.
Employee Kevin McPhetridge credibly, though reluctantly,
testified that on March 27, 1998, his supervisor, Sartain, talked
to him in the driver room and in the office of Peauroi. McPhet-
ridge recounted that Sartain asked him if he’d heard the rumors
concerning upcoming negotiations and the possibility of a
strike. After adverting to McPhetridge’s financial state and his
ability to withstand a strike, Sartain went on to state that Re-
spondent wouldn’t hold it against him if he felt he had to look
elsewhere for a job, that Peauroi wasn’t going to sign another
contract, and that things were going to get complicated at the
Dairy. McPhetridge recalled that he told Sartain that he
couldn’t afford to go through a strike, and that he asked Sartain
what his options were. Sartain responded that he couldn’t offer
him anything, but handed him a paper to read. It is unclear just
what the paper contained, but it is quite clear from McPhet-
ridge’s further testimony that Sartain went on to talk to him
about obtaining benefits other than what the Union had been
able to obtain previously.
McPhetridge’s testimony is not rebutted or challenged by
Respondent. Accordingly, I find and conclude that the facts
alleged in paragraph 9(a) of the amended complaint in Case
31–CA–23438 are true.
c.
The amended complaint in Case 31–CA–23438 alleges that
on or about March 30, 1998, Respondent threatened an em-
ployee that Respondent would sell the Company rather than
sign a union contract.
Employee Jeffrey Shane Robbins credibly testified at trial
that on March 30, 1998, he served Respondent as a delivery
driver, and that at about 4:30 a.m. Supervisor Vincent Sartain
approached him and directed him to go into the office of Su-
pervisor Rene Peauroi. There, Sartain told him that Peauroi
was done with the Union and was going to sell the Company
before he signed another union contract. Robbins also credibly
testified that Sartain gave him a paper and explained that it was
a petition for a vote, but that, though he didn’t have to sign
anything, Peauroi was looking for better benefits and pension
plans than the ones the Union was offering us, that they could
not show us the benefits without taking a vote to let them offer
these benefits to us, and that they had to have at least seven
votes to get this approved. Robbins stated that Sartain went on
to explain that lots of employees had complaints about the
benefits packages and were unhappy with the retirement plan
and that’s why they were trying to get another package. Rob-
bins testified that he told Sartain that he’d been there only a
short time, and didn’t want to cause trouble with other employ-
ees. Robbins testified, however, that Sartain told him that he
had to have an answer that day. Robbins told Sartain that he
would get back to him, though he never did. Sartain wouldn’t
let him keep the paper with the new benefits package explana-
tion, but simply directed Robbins to keep their conversation
quiet.
Robbins’ testimony is not rebutted or challenged by Respon-
dent. Accordingly, I find and conclude that the facts alleged in
paragraph 9(b) of the amended complaint in Case 31–CA–
23438 are true.
d.
The amended complaint in Case 31–CA–23438 alleges that
on or about April 7, 1998, Respondent interrogated an em-
ployee as to whether he had attended a union meeting.
Employee Robbins also credibly testified that on April 7,
1998, Supervisor Rene Peauroi called him into his office and
asked him if he’d attended a union meeting the previous Satur-
day
Robbins’ testimony is not rebutted or challenged by Respon-
dent. Accordingly, I find and conclude that the facts alleged in
paragraph 9(c) of the amended complaint in Case 31–CA–
23438 are true.
e.
The amended complaint in Case 31–CA–23438, at paragraph
10, alleges that on or about September 15, 1998, Respondent
assisted in the holding of an antiunion meeting for unit employ-
ees, and in the solicitation of unit employees’ signatures on an
antiunion petition later filed in support of Case 31–RD–1394.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1548
Roy Emit Athey, a maintenance mechanic for Respondent,
credibly testified that on September 15, 1998, he attended a
meeting at Respondent’s premises, pursuant to a notice he’d
seen posted the preceding day on Respondent’s letterhead.
Approximately 14 employees attended (out of an employee
complement stipulated to consist of approximately 20–22 em-
ployees). The meeting was held during working hours, and no
one told him to clock out during the meeting. He believes that
he was paid for his time in the meeting. The meeting was con-
ducted by an employee named Steve Edmondston, who ex-
plained to them that the purpose of the meeting was to decertify
the Union. Athey credibly testified that he observed four or
five employees sign a paper to decertify the Union during the
course of the meeting.
Respondent stipulated to a list of 10 names who were among
its employee complement and who were paid for working all
during the afternoon during which the meeting was held; from
among those on the list, Athey testified that he, Candelaria, and
Cortez were all at the meeting.
Employee Steve Edmondston testified that it was his idea to
hold a meeting and that Respondent did nothing to put him up
to it. Thus, so he credibly testified, he posted a notice, not on
Respondent’s letterhead, but on plain paper. He testified that
he clocked out for the meeting, and that he told some of those
in attendance to do so. Edmondston confirmed the presence of
employees Roy Athey, Chris Candelaria, Arthur Hernandez,
Jose Cortez, Martin Chevas, Francisco Medel, and Jorge Garcia
at the meeting. However, it is clear that he had no knowledge
as to whether or not they all did clock out to attend the meeting.
Edmondston justified using Respondent’s premises for the
meeting by his recollection that during a previous negotiation
between Respondent and the Union employees had attended the
negotiations and that they’d been held on Respondent’s prem-
ises.
Thus, based on the stipulation of the parties, and the testimo-
nies of Athey and Edmonston it is clear that approximately
seven employees were paid by Respondent for the time during
which they attended a meeting in which they were solicited to
sign an antiunion petition which was to serve as the predicate
for a petition to decertify the Union. Indeed, by all accounts,
approximately four or five employees actually signed the peti-
tion at that time.
Accordingly, I find and conclude that the facts alleged in
paragraph 10 of the amended complaint in Case 31–CA–23438
are true.
2. The alleged violations of Section 8(a)(5) in
Case 31–CA–23438
It is alleged that from and after July 1, 1998, Respondent im-
plemented and made retroactive to June 1, 1998, certain addi-
tional changes in wages and working conditions of the unit,
including inter alia ceasing union dues deductions and notifica-
tion to the Union of new hires, and ceasing all contributions to
the Teamster Trust Funds, replacing them with a health plan
provided by Care America, and a 401(k) retirement plan.
The record contains the stipulation of the parties that in Au-
gust 1998, Respondent implemented its 401(k) plan under
which Respondent makes a $1/hour contribution for each em-
ployee (up to $40/week.) Respondent makes this contribution
to the plan regardless of whether or not the employee directs
any additional money to their plan. In addition, Respondent
gives each employee another $1/hour (up to $40/week) which
the employee can either choose to receive as wages or direct to
the 401(k) plan. Although employees can contribute more to
their 401(k) plan, Respondent does not match such additional
contributions.
Additionally, the record contains an array of documents
bearing dates from and after March 16, 1998, including letters
between the parties and contract proposals. Important among
them is a letter dated June 17, 1998, in which Respondent noted
that the employees had rejected its last and final offer, and that,
as a result, an impasse had been reached and that Respondent
intended to put its last and final offer, a copy of which was
attached, into effect on July 1, 1998, retroactive to June 1,
1998. Further meetings and correspondence between the par-
ties followed, most notably with the Union requesting certain
information from Respondent, and Respondent claiming to
have furnished it.
On September 21, 1998, Steve Edmondson filed a petition to
decertify the Union in Case 21–RD–8516. By letter dated No-
vember 19, 1998, the Regional Director dismissed the petition,
large based on the finding of the investigation that the showing
of interest was tainted by virtue of the Employer participating
in obtaining it, and by various unfair labor practices of the Em-
ployer.
It was stipulated at trial that, pursuant to the collective-
bargaining agreement described above between Respondent
and the Union, Respondent made payments to the South Bay
Teamsters and Employers Benefit Trust Fund (for medical,
hospital, prescription drugs, dental, vision, and death benefits)
and the Western Conference of Teamsters Pension Trust Fund
through the month of May 1998.
It was stipulated that Respondent has not made any payments
to the heath and welfare funds described above for the period
June 1998 through the present.
It was further stipulated between the parties that:

1. With respect to the pension trust fund described
above Respondent made no payments to said fund during
the period June 1998, through present. However, pursuant
to the settlement of District Court litigation, Respondent
has agreed to make payments to said fund for the period
June 1998, through September 1998.
2. Pursuant to Article VI of the collective-bargaining
agreement described above, Respondent deducted monthly
dues and/or initiation fees from the wages of each unit
employee and Respondent remitted said deduction to the
Union.
3. In June 1998, Respondent reimbursed employees for
dues it had deducted from their wages and did not remit
said dues to the Union.
4. At all times since June 1998, Respondent has not
deducted dues and/or initiation fees from the wages of
employees and has stopped remitting said dues to the Un-
ion.

Based on these stipulated facts, I find and conclude that the
allegations made and contained in paragraphs 12 and 13 of the
Amended Complaint in Case 31–CA–23438 are true.
3. The alleged violations of Section 8(a)(5) in
Cases 31–CA–23704 and 31–CA–23741
The consolidated complaint in Cases 31–CA–23704 and 31–
CA–23741 alleges that:

SCOTT BROS. DAIRY 1549
1. Respondent withdrew recognition from the Union
on January 25, 1999.
2. Respondent, notwithstanding the fact that the just
expired collective-bargaining agreement contained a pro-
vision permitting representatives of the Union to be admit-
ted to Respondent’s premises, ceased permitting the Union
access to Respondent’s premises on or about January 25,
1999, in the absence of an impasse and without affording
the Union notice or opportunity to bargain with respect to
such conduct, which is a mandatory subject for collective
bargaining.
3. Respondent has failed and refused to provide re-
quested information to the Union, which information is
necessary for and relevant to the Union’s performance of
its duties as the exclusive collective-bargaining representa-
tive of the employees in the unit, described above.

Each factual allegation in the preceding subparagraphs was
admitted by Respondent.
However, Respondent denies that the actions admitted as to
subparagraph 2 were taken in the absence of an impasse in
bargaining with the Union and without affording the Union an
opportunity to bargain with respect to this conduct. Addition-
ally, Respondent denies that the information referred to in sub-
paragraph 3 was necessary for or relevant to the Union in order
to perform its duties.
C. Discussion and Conclusions1
1. Respondent violated Section 8(a)(1) in each respect alleged
I conclude that the factual findings made in B,1,(a) through
(e), above, necessarily lead to the conclusion that Respondent
has violated Section 8(a)(1) of the Act in each respect alleged
in the amended complaint.

Specifically:

By polling employees concerning their union sympa-
thies or leanings, and by soliciting them to sign an anti-
union petition; and,
By interrogating employees concerning their own or
other employees’ union activities, leanings or sympa-
thies; and,
By telling an employee that Respondent would not sign
another union contract, and impliedly threatening the
employee with job loss if the Union persisted with con-
tract demands; and,
By threatening an employee that Respondent would sell
the company rather than sign a union contract; and, Re-
spondent has interfered with, and restrained and coerced
employees in their free choice of whether or not to sup-
port the Union.

Respondent has interfered with, restrained, and coerced em-
ployees in their free choice of whether or not to support the
Union.

1 There are virtually no factual conflicts in these cases. Moreover,
even where a difference appears, it seems of relatively little importance.
Instead, my recitation of the facts herein is drawn almost entirely from
stipulations of fact, which are set forth in the record, and, in a few
instances, from undisputed testimony. Thus, only in the minor in-
stances where there is a factual conflict between the parties have I set
forth the details of the evidence, and resolved the conflicts.
In circumstances where an employer calls employees into
management offices, the situs of authority at the employer’s
premises, and both polls them and questions them about their
own and others’ union activities, he will normally be found to
have violated the Act, without more. Astro Printing Services,
300 NLRB 1028, 1034 (1990); Yerger Trucking, 307 NLRB
567, 569 (1992).
In this instance where the employer polled the employees
about their support for the Union, Respondent clearly and
bluntly violated Section 8(a)(1). This was especially true in
this case, where such a meeting is unusual; here, Respondent’s
route manager admitted that, not only was such activity “un-
usual,” it was unprecedented. Such activity by an employer is
at least potentially disruptive of the collective-bargaining rela-
tionship between an employer and a union, and also unsettling
to the employees involved. Because of this potential for coer-
cion, the Board has held that before an employer can poll its
employees about their continued support for a union, it must
first have a reasonable doubt, based on objective considera-
tions, that the union continues to enjoy majority support, and
must provide the procedural safeguards long ago provided for
in Strucknes Construction Co., 165 NLRB 1062 (1967), revd.
353 F.2d 852 (D.C. Cir. 1965), including the requirement that a
secret ballot be used to conduct the poll. Here, Respondent has
not been shown to have even attempted, much less met with,
the requirements of Strucknes. The poll must accordingly be,
and hereby is, found to have been illegal. Texas Petrochemicals
Corp., 296 NLRB 1057 (1989), modified 923 F.2d 398 (5th
Cir. 1991), rehearing denied 931 F.2d 892 (5th Cir. 1991). The
Board’s Texas Petrochemicals test was recently approved by
the Supreme Court in Allentown Mack Sales & Services v.
NLRB, 522 U.S. 359 (1998).
That finding is all the more mandated where, at the same
time, as here, the employer informs the employees that union
activities are utterly futile because it will never again sign a
collective-bargaining agreement with their chosen representa-
tive, Baby Watson Cheesecake, 320 NLRB 779, 785 (1996);
and hints darkly about his concern for employees’ ability to
financially weather a strike, it amounts to a threat of reprisal
against employees for having engaged in union activities. Cf.
Antonino’s Restaurants, 246 NLRB 833 (1979), enfd. 648 F.2d
1206 (9th Cir. 1981).
If all that were not enough, the conclusion became inescap-
able when Respondent called an employee into the offices and
bluntly told him that the Employer was “done with” the Union,
and would “sell the company before it would agree to another
union contract.” Such conduct amounts to a bald and blatant
threat of reprisal, and is illegal. C. M. Brier Corp., 310 NLRB
1362 (1993); Caterpillar, Inc., 321 NLRB 1178, 1181 (1996);
and Baby Watson Cheesecake, supra.
Finally, taking into account that the actions just mentioned
took place in the period just preceding the expiration of the last
collective-bargaining agreement between the Employer and the
Union, Respondent placed a capstone on its illegal activity by,
following the beginning of negotiations for a new collective-
bargaining contract, paying employees for their time during
which they were solicited to sign a petition to decertify the
Union. This clear toleration by Respondent of the activities of
antiunion employees, in the context of other unfair labor prac-
tices, coupled with the payment of wages to employees attend-
ing a meeting where an antiunion message was to me deliv-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1550
ered, amount to solicitation, tacit approval, and condonation of
the antiunion employees’ activities, and is illegal. Gartner-
Harf Co., 308 NLRB 531 (1993). For an employer to support
or assist in the initiation, signing, or filing of an employee de-
certification petition interferes with the Section 7 rights of em-
ployees. Placke Toyota, 215 NLRB 395 (1974).
2. Respondent violated Section 8(a)(5) in each respect alleged
in Case 31–CA–23438
The Act requires that parties negotiating a collective-
bargaining agreement bargain in good faith, and that they do so
until either agreement is reached, or until any realistic possibil-
ity of reaching agreement has been exhausted. Assn. of D.C.
Liquor Wholesalers, 292 NLRB 1234 (1989), enfd. 924 F.2d
1078 (D.C. Cir. 1991), citing Taft Broadcasting Co., 163
NLRB 475 (1967), revg. denied 395 F.2d 622 (D.C. Cir. 1968).
At the point of exhaustion, there is said to exist an impasse.
The existence of an impasse is not lightly inferred, and the
burden of proving it rests on the party asserting it. Serramonte
Oldsmobile, 318 NLRB 80 (1995), enfd. 86 F.3d 227 (D.C. Cir.
1996).
If, before entering into a new agreement or reaching impasse
following good-faith negotiations, an employer institutes
changes in wages, hours, and/or terms and conditions of em-
ployment from those contained in an expired collective-
bargaining agreement, the employer violates Section 8(a)(5) of
the Act. Blue Circle Cement Co., 319 NLRB 954 (1995), enfd.
in part and denied in part 106 F.3d 413 (10th Cir. 1997).
Here, on May 20, 1998, Respondent proposed changes in the
collective-bargaining agreement. The parties were still in the
process of going over and understanding the Respondent’s
proposal when, on June 17, 1998, Respondent presented a
letter claiming the existence of an impasse, and notified that
Respondent would put its last and final offer to the Union into
effect on July 1, 1998, retroactive to June 1, 1998.
At the negotiation session of June 29, 1998, the Respondent
made a major change in its earlier stance, and proposed a 3-
year contract. The Union’s representative considered this
change important, and said he’d take it back to the membership.
Further, the parties ended this session with an agreement that
further discussion of union security would be helpful.
In my opinion, not only has the Respondent failed to offer
sufficient evidence to show the existence of an impasse, it has
failed to offer any such evidence, beyond its bare expression of
opinion to that effect. That, of course, is insufficient.
To the contrary, it seems clear that the parties had not yet
had adequate opportunity to fully explore, much less exhaust,
all reasonable opportunities of compromise. As a result, no
impasse existed. D. C. Liquor Wholesalers, supra at 1235. For
example, the parties had not yet even discussed the issues
raised concerning Respondent’s proposals for a 401(k) plan, or
changes in health and welfare benefits. Instead, just to the con-
trary, the parties had, at this time, mutually agreed that the Un-
ion needed further time to examine those proposals before ne-
gotiating them.
Moreover, for reasons explained in the next session, no im-
passe was possible at that time, because at this time there still
existed unremedied unfair labor practices.
To go on, however, by letter of June 23, 1998, the Union re-
quested information concerning a summary of the health plan
presented to the Union on May 27, 1998. That information had
not been received by the June 29, 1998 meeting. By letter
dated July 1, 1998, the Union informed the Respondent that
upon its receipt, the Union would schedule a meeting to discuss
it.
As a result, it is simply not possible to find that an impasse
then existed. During a time when a union has not yet received
information requested by it from an employer, and which is
crucial to its analysis of the employers proposals, it is not pos-
sible for an impasse to exist. Cf. Genstar Stone Products, 317
NLRB 1293 (1995); A.M.F. Bowling, 314 NLRB 969 (1994),
affd. in part and revd. in part 977 F.2d 141 (4th Cir. 1992);2
Palomar Corp., 192 NLRB 592 (1971), supplemented by
Gateway Service Co., 209 NLRB 1166, (1974).
Even in instances where an impasse exists, an employer is
not free to make changes in wages, hours, and working condi-
tions which are not encompassed within its preimpasse pro-
posal to the union. Blue Circle Cement Co., supra. Yet, an
examination of C.C. Exhibit 19 shows the extensive proposals
regarding health and welfare benefits which has not even been
discussed, much less exhausted by the parties as of June 29,
1998.
The differences between the health care proposals of Re-
spondent and those of the Teamsters’ Plan is shown by the
attachments to Joint Exhibit 3. Yet, even according to the tes-
timony of Respondent’s supervisor, Sartain, Respondent’s plan
provided for a higher co-pay (though he claimed that this was
inadvertent by Respondent). Still, regardless of intent, it pro-
vides at least one important instance where Respondent’s plan
as implemented was not equaled by its “pre-impasse” offer.
For these reasons, I find and conclude that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally imple-
menting changes that were not within the contemplation of
Respondent’s final bargaining offer.
The record fully supports a finding that in early May 1998,
employees signed dues-checkoff cards. They did so in re-
sponse to a request by the Union, which, in turn, was in re-
sponse to a request for information from the Respondent.
There is no evidence that any such card was ever revoked by an
employee. Nor do the cards limit, on their face, their applica-
tion or duration to coincide only with the existence of the un-
ion-security requirement. Thus, I do not presume that the
signers of the cards intended that they expire with the collec-
tive-bargaining agreement.
Yet, it is admitted that Respondent ceased remitting dues to
the Union on the contract’s expiration.
The Board has held that most terms and conditions of em-
ployment survive the expiration of the collective-bargaining
agreement. And, it is noted that there is no statutory require-
ment that unrevoked dues-checkoff cards expire with the expi-
ration of the contractual union-security provision which they
enforce. While it is only under the proviso to Section 8(a)(3)
that an employer may enter into and enforce union-security
provisions, there is no statutory tie-in to checkoffs. For exam-
ple, checkoff provisions are frequently agreed to and enforced
in right-to-work States, the very same States where union secu-
rity would be unlawful. The Board has held that the continua-

2 I am aware that several of the cases cited by me in this decision
have been denied enforcement, or have been modified. However, as an
administrative law judge, I am bound to follow announced Board pol-
icy and precedent until such precedent or policy is modified or reversed
by the Board itself or the Supreme Court. Atlanta Hilton & Tower, 278
NLRB 474 (1986).
SCOTT BROS. DAIRY 1551
tion of unrevoked dues checkoff in the absence of a union-
security provision. See Lowell Corrugated Container Corp.,
177 NLRB 169 (1969); West Coast Cintas Corp., 291 NLRB
152 (1988); Sun Harbor Caribe, Inc., 237 NLRB 444 (1978);
Frito Lay, 243 NLRB 137 (1979); Chemical Workers Local
143 (Lederle Laboratories), 188 NLRB 705 (1971). Nor do I
see that Section 302 requires a result that checkoff does not
survive the expiration of the contract. However, in any event,
that decision is not for me to make.
Finally, I do not see that the holding in Bethlehem Steel Co.,
136 NLRB 1500 (1962), militates in favor of so finding. This
is so because, in this case, unlike Bethlehem, the language of
the contract’s provision for checkoff makes provision for its
enforcement during successive collective-bargaining agree-
ments.
Thus, I shall simply apply the Board’s general rule, and hold
that the checkoff provisions here, like contractual provisions
generally, survive the expiration of the contract, and may not be
unilaterally changed by the employer.
Accordingly, I find and conclude that by discontinuing the
dues-checkoff provisions, the Respondent violated Section
8(a)(5)(1) of the Act.
3. Respondent violated Section 8(a)(5) in each respect alleged
in Cases 31–CA–23704 and 31–CA–23741
a. The Withdrawal of Recognition
By letter dated January 20, 1999, the day after the opening of
the hearing in Case 31–CA–23438, Respondent withdrew its
recognition of the Union and informed the Union that it no
longer would have access to Respondent’s premises. The evi-
dence shows that during a pretrial settlement conference, prior
to that hearing, in connection with a discussion about Respon-
dent’s potential liability, Respondent’s representative, Jones,
informed the Union that Respondent was not concerned about
the liability because they were going to incorporate the business
in February 1999. Furthermore, during a mediation session in
early January 1999, Jones told the Union that he was giving
them notice that Respondent was going to incorporate. Again,
Jones said that the corporation would then become another
corporation.
After twice being told that Respondent would incorporate, by
letter dated January 20, 1999, the Union requested information
from Respondent about the incorporation. Then, by letter dated
January 26, 1999, the Union made a request for specific infor-
mation from Respondent. Respondent has not replied to the
information requests and has not provided any of the informa-
tion requested.
Finally, as admitted, Respondent withdrew recognition from
the Union.
A union is irrebuttably presumed to continue to enjoy the
support of a majority of the unit employees while a collective-
bargaining agreement is in effect and after the contract expires,
the union still is presumed to enjoy majority status, but the
presumption is rebuttable. Lee Lumber, 322 NLRB 175, 176
(1996), as supplemented, affd. in part and remanded in part 117
F.3d 1454 (D.C. Cir. 1997). The burden of rebutting the pre-
sumption of continued majority support for the union after the
expiration of a collective-bargaining agreement rests with the
employer. Hooper’s Chocolates, 319 NLRB 437, 441 (1995).
After the expiration of a collective-bargaining agreement, an
employer may rebut the presumption and withdraw its recogni-
tion of the union by affirmatively establishing that either the
union in fact no longer has the support of a majority of the unit
employees, or that the employer has a reasonably based doubt,
based on objective considerations, as to the union’s continued
majority status at the time the employer refused to bargain. Id
and Lee Lumber, supra at 176–177. The Employer must estab-
lish either of these two defenses by a “preponderance of the
evidence.” Alcon Fabricators, 317 NLRB 1088, 1090 (1995),
enf. den. 113 F.3d 1235 (6th Cir. 1997)
Most importantly, in the context of the facts of this case, an
employer’s withdrawal of recognition must occur in a context
free of unfair labor practices. Radisson Plaza, 307 NLRB 94,
96 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993) As the Board
noted in Lee Lumber, supra at 176–177, any “good faith” doubt,
or question of representative status, “must be raised in a context
free of unfair labor practices of the sort likely, under all the
circumstances, to affect the union’s status, cause employee
disaffection, or improperly affect the bargaining relationship
itself.” Lee Lumber, supra at 176–177.
In other words, an employer may engage in actions which
are reasonably calculated to “manufacture” its own “good-faith
doubt.”
The unremedied unfair labor practices committed by the Re-
spondent here, as established in Case 31–CA–23438, preclude
either a good-faith doubt defense, or a defense of actual loss of
majority.
The evidence presented in Case 31–CA–23438 establishes
that Respondent committed various and serious unfair labor
practices detailed above, including the following:

During the period March 27 through March 30, 1998,
prior to the expiration of the last collective-bargaining
agreement, Respondent unlawfully polled unit employ-
ees about their union sentiments and solicited them to
sign an anti-union petition, which Respondent later filed
in support of the petition it filed in Case 31–RM–1258;
During that same period of time, Respondent unlaw-
fully threatened employees with loss of employment,
informed employees that Respondent would not sign a
contract with the Union, and unlawfully interrogated an
employee as to whether he had attended a union meet-
ing;
In about July 1998, Respondent violated Section
8(a)(1)(5) by unilaterally implementing changes in
wages and working conditions of unit employees, in-
cluding changes in the health and welfare and pension
plans, at a time when the parties had not bargained to
impasse, and Respondent violated Section 8(a)(1)(5) of
the Act by unilaterally implementing changes that were
not within the contemplation of Respondent’s final bar-
gaining offer; and
On September 15, 1998, Respondent unlawfully as-
sisted in the circulation of an employee decertification
petition by permitting employees to hold a meeting to
discuss decertification of the Union on its premises, by
paying employees for the time they attended the meet-
ing and by arranging for supervisors to cover the work
of employees so that they could attend the meeting.

Further, Respondent’s unilateral implementation of the
health and welfare and 401(k) plan clearly undercuts the Un-
ion’s status and support. In ABC Automotive Products Corp.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1552
307 NLRB 248, 250 (1992), supplemented 319 NLRB 874
(1995) (a case involving that employer’s announcement of its
intent to unilaterally institute its own health and welfare plan to
replace the union’s welfare fund), the Board noted that:

The damage to the bargaining relationship had been
accomplished simply by the message to the employees that
the Respondent was taking it on itself to set this important
term and condition of employment, thereby “emphasizing
to the employees that there is no necessity for a collective
bargaining agent” (citations omitted).

Similarly, in Guerdon Industries, 218 NLRB 658, 661
(1975), the Board found that an employer’s unilateral an-
nouncement and implementation of an incentive plan, and its
threat to halt the plan if the union negotiated a wage increase,
were exactly the type of unfair labor practices which would
“improperly affect the bargaining relationship so as to negate
the legality of a later withdrawal of recognition.” In this re-
gard, the Board noted in Guerdon, id at 661–662, that the em-
ployer’s indication to employees that it could confer or with-
draw benefits without regard to the union “necessarily tended to
undermine the union’s authority among the employees . . with
erosion of majority status the probable result.”
In the instant case, it is evident that the unfair labor practices
committed by Respondent are of the type that “would improp-
erly affect the bargaining relationship so as to negate the legal-
ity of the later withdrawal of recognition.” Rock-Tenn Co., 319
NLRB 1139, 1146 (1995), enfd. 101 F.3d 1441 (D.C. Cir.
1996), citing Guerdon Industries, supra at 661 (1975). Thus,
Respondent’s action in making significant unilateral changes to
important terms and conditions of employment deprived the
union of the opportunity to represent the employees with re-
spect to these issues and, therefore, it is foreseeable that the
employees would become disenchanted with the union which,
apparently could do nothing for them. See Lee Lumber, supra
at 177.
Recently, in Mathews Readymix, 324 NLRB 1005, 1007
(1997), enfd. 165 F.3d 74 (D.C.Cir. 1999), the Board held that
unfair labor practices need not be explicitly designed to under-
mine union support in order to taint subsequent employee ex-
pression of disaffection. In that case, the Board found that
interrogations of applicants concerning their union membership
were sufficient to taint a decertification petition and preclude
the employer’s reliance on it to support a good-faith doubt of
majority status. In this regard, the Board concluded that it was
reasonable to infer a casual relationship between the coercive
interrogations of the employees and their subsequent willing-
ness to sign a decertification petition.
Similarly, in Williams Enterprises, 312 NLRB 937 (1993),
enfd. as supplemented 50 F.3d 1280 (4th Cir. 1995), the Board
found that a successor employer’s statements to union-
represented employees of the predecessor that they intended to
operate nonunion tainted a decertification petition presented to
the successor 4 months later. In this regard, the Board consid-
ered the factors set forth in Master Slack Corp., 271 NLRB 78,
84 (1984), which relate unlawful conduct to decertification
activity that is alleged to support withdrawal of recognition.
These factors are:

The length of time between the unfair labor practices
and the withdrawal of recognition;

The nature of the illegal acts, including the possibility
of their detrimental or lasting effect on employees;

Any possible tendency to cause employee disaffection
from the union; and

The effect of the unlawful conduct on employee morale,
organizational activities, and membership in the union.

Although the General Counsel need not establish that the un-
fair labor practices committed by Respondent were designed to
undermine union support (Mathews Readymix, supra at 1007),
in the instant case, it is evident that this was Respondent’s in-
tent. First, in the context of unlawful polling, interrogation, and
threats, Respondent solicited employees to sign an antiunion
petition which Respondent attempted to use to support an RM
petition. After Respondent admitted its wrongdoing and with-
drew that petition, Respondent and the Union negotiated for a
successor collective-bargaining agreement. Then, without bar-
gaining to impasse, Respondent unilaterally implemented
changes in the terms and conditions of employment, including
matters which are of central importance to employees, such as
the termination of Respondent’s participation in the union
Health and Welfare fund and Pension fund and the implementa-
tion of different plans. Thereafter, in continuation of its relent-
less effort to be rid of the Union, Respondent unlawfully as-
sisted in the solicitation of signatures to support a decertifica-
tion petition. Clearly, Respondent intended to undermine sup-
port for the Union. Although, again, as noted above, the Gen-
eral Counsel need not establish such an intent.
Since Respondent’s withdrawal of recognition did not occur
in a context free of unfair labor practices, and since the Re-
spondent has made no effort to demonstrate that the Union has
lost it’s status as majority representative of the employees, I
find and conclude that Respondent violated Section 8(a)(1) and
(5) by withdrawing its recognition of the Union.
Not only has Respondent failed to show that the Union has
lost majority support, the only evidence in this case is that it
believed that some employees failed to remain current in their
dues to the Union. Certainly, that is the only consideration it
communicated to the Union for its withdrawal of recognition.
Respondent cannot rely on the filing of the decertification
petition to justify its withdrawal of recognition. As was shown,
and found, in Case 31–CA–23438, the decertification petition
was tainted by Respondent’s unlawful assistance in the circula-
tion of that petition, as well as by the other unremedied unfair
labor practices. Thus, even apart from Respondent’s failure to
meet its obligation to authenticate signatures in the decertifica-
tion petition, and the taint on the petition itself, Respondent’s
unfair labor practices estop any use of the petition to justify the
withdrawal of recognition. See Hooper’s Chocolates, 319
NLRB 437 (1995), in which the Board noted that “[a] petition
obtained by unfair labor practices cannot be used as objective
considerations of a reasonable doubt of majority status.”
Moreover, aside from Respondent’s unlawful involvement in
the solicitation of signatures for that petition, in light of the
other unremedied unfair labor practices, any question concern-
ing representation was not raised in a context free from unfair
labor practices. Hooper’s Chocolates, supra.
In Triplett Corp, 234 NLRB 985, 986 (1978), enf. denied
619 F.2d 586 (6th Cir. 1980), the Board noted that it frequently
has held that “the showing of membership in a union or finan-
cial support of a union is not the equivalent of establishing the
SCOTT BROS. DAIRY 1553
number of employees who desire to be represented by the Un-
ion” and that, therefore, “the numbers of union members and
employees on dues checkoff do not provide objective consid-
erations sufficient to justify a reasonable doubt of the union’s
continued majority support.”
In Albany Steel, 309 NLRB 442, 453 (1992), the administra-
tive law judge addressed an employer’s assertion that the fact
that few, if any, of the employees remained members of the
Union, and that none of them were paying dues, was a basis for
its alleged good-faith doubt of the union’s majority status. The
judge noted that union membership and/or the failure to pay
dues does not necessarily demonstrate a lack of union support.
In this regard, the judge stated that “it is union support rather
than union membership or dues payment which is the crucial
fact. The lack of union membership and/or lack of dues pay-
ments, even if true, does not demonstrate a lack of union sup-
port.” The judge further noted that “the issue is whether the
employees do not want the union to represent them, rather than
whether, without the benefit of a bargaining agreement, they
want to pay dues to support the union.” “‘Majority support’
refers to union representation, not financial support, or union
membership.”
Therefore, in the case here, even if Respondent had been
able, as it did not, to demonstrate that very few, or none, of the
employees continued to make dues payments after the contract
expired, Respondent could not rely on this fact alone to prove a
good-faith doubt of the Union’s continued majority status.
I note that no other reasons were advanced by Respondent
for its withdrawal of recognition besides the checkoff authori-
zations. Thus, I shall consider no other reasons advanced by
Respondent. As the Board noted in a similar situation in Tri-
plett Corp., 234 NLRB 985, 986 (1978), these reasons are
“mere afterthoughts and not persuasive evidence upon which
the Respondent could ground a reasonable doubt of the Union’s
continued majority status.” Instead, the employer must have
been aware of facts at the time it withdrew recognition. As the
Board noted in Orion Corp., 210 NLRB 633, 634 (1974), enfd.
515 F.2d 81 (7th Cir. 1975), “facts regarding union support
ascertained after the refusal to bargain are not controlling, or
even guiding, in determining whether the employer had a rea-
sonable basis for doubt at the time it refused to bargain.” In
this regard, I specifically note that Respondent’s letter to the
Union withdrawing recognition made no mention whatever of
any statements made by employees evidencing disaffection
with the Union.
b. The denial of access
Article 9.01 of the expired collective-bargaining agreement
provides that “[a]uthorized representatives of the Union will be
admitted to the Employer’s facilities at reasonable times to
assist in the settlement of grievances and to observe the admini-
stration of the Agreement after notifying the Employer of his
presence.” And, indeed, Respondent’s past practice has been
to permit union representatives access to its facility. Further-
more, it should be noted that even Respondent’s last and final
contract offer, which it unlawfully implemented unilaterally,
does not change this contractual access language.
In its letter to the Union dated January 20, 1999, Respondent
notified the Union that it no longer would be permitted onto
Respondent’s premises.
A provision in a collective-bargaining agreement concerning
union access survives contract expiration. T.L.C. St. Peters-
burg, 307 NLRB 605, 610 (1992), enfd. 985 F.2d 579 (11th
Cir. 1993); Colonna’s Shipyard, 293 NLRB 136, 141 (1989),
enfd. 900 F.2d (4th Cir. 1990). Therefore, by informing the
Union that it no longer would be permitted access to its facility,
Respondent violated Section 8(a)(5) and (1) of the Act. More-
over, even if the contract did not provide for such access, the
unilateral change in the past practice of permitting union access
is a material change about which Respondent would be obli-
gated to bargain. Ernst Home Centers, 308 NLRB 848, 849
(1992).
Respondent may attempt to justify its denial of access to the
Union by claiming that it was privileged to do so because the
Union no longer represents a majority of the employees. How-
ever, for the reasons discussed above, Respondent was not
privileged to withdraw its recognition of the Union and, there-
fore, this defense must fail.
c. The refusal to furnish information
Respondent has admitted that it received the Union’s infor-
mation request dated January 26, 1999. As Barnett testified, he
sent two requests to Respondent for information. In one, dated
January 20, 1999, he asked for information concerning the “in-
corporation” which Jones had mentioned. In the second re-
quest, he asked for details, such as the name of the new busi-
ness, its form, names of officers, names of principal sharehold-
ers, and documents related to the change of business form. He
testified without contradiction that no information has been
provided in response to his requests, but that the Union needs
the requested information in order to determine what the bar-
gaining unit is, how the change in form affects the bargaining
unit, who he needs to be negotiating with, whether he is negoti-
ating with the proper people, etc. In addition, he testified with-
out contradiction that the Union is concerned that the Employer
will attempt to avoid its liability to the Union by changing the
form of its business.
An employer has an obligation under Section 8(a)(5) of the
Act to provide requested information which is relevant to a
union’s performance of its role as collective-bargaining repre-
sentative. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
As the Supreme Court noted in Detroit Edison Co. v. NLRB,
440 U.S. 301, 303 (1979), “[t]he duty to bargain . . . includes a
duty to provide relevant information needed by a labor union
for the proper performance of its duties as the employees’ bar-
gaining representative.”
The General Counsel has the burden of demonstrating that
information which does not relate to core terms and conditions
of employment within the bargaining unit is relevant. August
A. Busch & Co., 309 NLRB 714, 720 (1992). However, the
standard for relevance is a “liberal discovery-type standard.”
NLRB v. Acme, supra at 437. Therefore, assuming that the
General Counsel would have the burden of establishing the
relevancy of the requested information, I find that the General
Counsel has met this burden.
The information requested by the Union in its letter dated
January 26, 1999, clearly is relevant to the Union’s perform-
ance of its duty as bargaining representative. The Union is
entitled to the information so that it can evaluate what effect
any change in business form would have on the bargaining unit,
and so that it can determine the identity of the party with whom
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1554
the Union should bargain. See Providence Hospital, 320
NLRB 790 (1996), enfd. 93 F.3d 1012 (1st Cir. 1996). The
information also is relevant to the Union’s concern about the
location of assets, out of which claims for trust fund contribu-
tions and other money due might be satisfied. Mary Thompson
Hospital, 296 NLRB 1245, 1250 (1989), enfd. 943 F.2d 741
(7th Cir. 1991).
In light of the statements by Respondent’s representative that
the Employer would be incorporated in February 1999, and the
fact that the parties have been involved in negotiations for a
new collective-bargaining agreement, the information request
was not premature. See Providence Hospital, id at 795.
Clearly, it may be reasonably anticipated that Respondent may
in the future seek to evade and avoid its duty to bargain by
claiming that a change in the form of its ownership precludes
such bargaining.
Moreover, as the judge noted in Providence Hospital, supra,
a defense that an information request is premature is an af-
firmative defense, and an employer can not wait until a charge
is filed to raise the contention. In the case herein, Respondent
has not asserted to the Union that the information request is
premature. Rather, consistent with its withdrawal of recogni-
tion, Respondent made no reply whatsoever to the request for
information.
In light of the above, and the record as a whole in Cases 31–
CA–23438, 31–CA–23704 and 31–CA–23741, I find and con-
clude that the General Counsel has shown that Respondent
violated Section 8(a)(1)(5) of the Act, as alleged, and that an
appropriate remedial order issue forthwith.
In view of the above, I find and conclude that counsel for the
General Counsel has proven that Respondent violated Section
8(a)(1) and (5) of the Act, as alleged in the complaints.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is now, and at all times material here has been,
duly designated collective-bargaining representative of the
employees of Respondent in the unit described below:
4. The unit appropriate for collective bargaining, as de-
scribed in the agreements noted above, is as follows:

Included: All milk plant and combination plant employees,
wholesale route drivers, semi-truck drivers and tank driv-
ers employed by the Respondent at its Chino, California
facility.
Excluded: All other employees, guards and supervisors as de-
fined in the Act.

5. Respondent has violated Section 8(a)(1) of the Act by:
(a) Polling employees concerning their own and other em-
ployees union activities, leanings, and sympathies without hav-
ing first given them requisite assurances that their answers will
not be used against them.
(b) Interrogating employees about their own, or others’ union
activities, leanings, or sympathies.
(c) Soliciting employees to sign an antiunion card or peti-
tion.
(d) Threatening employees that it would not sign another un-
ion contract, and by telling employees that the Employer would
be sold before it would sign another union contract, and impli-
edly threatening employees with job loss if the Union persisted
with contract demands.
6. Respondent has violated Section 8(a)(5) of the Act by:
(a) Withdrawing recognition from the Union.
(b) Unilaterally implementing a wage increase and a 401(k)
plan for employees and paying into it.
(c) Unilaterally implementing a health and welfare plan for
employees
(d) Prohibiting access to Respondent’s premises by the Un-
ion.
(e). Failing and refusing to furnish information to the Union
as requested by letter dated January 26, 1999.
(f) Ceasing to deduct and remit to the Union the union dues
called for by the expired collective-bargaining agreement.
7. The above unfair labor practices have an effect upon
commerce as defined in the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it neces-
sary that Respondent be ordered to cease and desist from the
unfair labor practices found, and from like or related invasions
of the employees’ Section 7 rights, and to take certain affirma-
tive action.
Having found that Respondent violated the Act by withdraw-
ing recognition from the Union, I shall require the Respondent
to again recognize the Union as the exclusive collective-
bargaining representative of the employees in the unit described
below, and to bargain collectively with it in good faith until an
agreement has been reached or a valid impasse results.
Having found that Respondent violated the Act by failing
and refusing to provide information which was properly re-
quested by the Union, and which is necessary for the Union to
carry out its duties as the duly designated exclusive collective-
bargaining representative of all the employees in the unit de-
scribed below, I shall require that Respondent furnish the Un-
ion with the requested information within 10 days of the date of
the Board’s Order.
Having found that Respondent violated the Act by imple-
menting a wage increase and a 401(k) plan, and by making
payments to it on behalf of employees, I shall require that Re-
spondent, if requested by the Union within 60 days of the
Board’s Order, rescind and revoke the 401(k) plan. (I make no
provision here for any employee being required to repay the
moneys received from Respondent for their wage increase or
401(k) plan accounts.)
Having found that Respondent violated the Act by substitut-
ing a medical and dental insurance program for the medical and
dental insurance program which had previously covered the
unit employees, I shall require that Respondent restore, on the
Union’s written request, the medical and dental insurance pro-
gram which was in effect previously. In order to allow the Un-
ion ample opportunity to consider whether to request the rein-
statement of the previous medical and dental insurance pro-
gram, while not leaving the matter open indefinitely, I shall
require that the Union be required to make its decision within
60 days of the date of the Board’s Order. If the Union does not
request the reinstatement of the medical and dental insurance
program which was in effect prior to the Respondent’s pro-
gram, the Respondent’s program will remain in effect. Respon-
dent will have 40 days after the receipt of the Union’s written
SCOTT BROS. DAIRY 1555
request to replace the medical and dental program with the
previous program.
Having found that Respondent violated the Act by discon-
tinuing making contributions on behalf of the unit employees
into the pension and health and welfare trust funds included in
the Respondent’s expired contract with the Union, I shall rec-
ommend that Respondent make whole the unit employees by
paying all pension, health, and welfare contributions into the
trust funds which have not been paid and which would have
been paid but for the unlawful conduct found here, and con-
tinue such payments until such time as the Respondent negoti-
ates in good faith with the Union to a new contract or impasse
or, as described above, the Union fails to make a written re-
quest for the restoration of the health and welfare program re-
quiring such contributions.3

3 Because the provisions of employees benefit fund agreements are
variable and complex, the Board does not provide for interest at a fixed
In view of the variety and severity of Respondent’s unfair
labor practices, I provide for a broad order here.
[Recommended Order omitted from publication.]

rate on fund payments due as part of a “make whole” remedy. I there-
fore leave to further proceedings the question of any additional amounts
the Respondent must pay into benefit funds to satisfy my remedy here.
These additional amounts may be determined, depending on the cir-
cumstances of each case, by reference to provisions in the documents
governing the funds involved and, where there are no governing provi-
sions, to evidence of any loss directly attributable to the unlawful ac-
tion, which might include the loss of return investment of the portion of
the funds withheld, additional administrative costs, etc., but no collat-
eral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, by the amount that the Respondent
otherwise owes the fund.