Southern Bakeries, LLC

National Labor Relations Board - Board Decisions

Aug 4, 2016

364 NLRB No. 64 (N.L.R.B. 2016)

364 NLRB No. 64
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Southern Bakeries, LLC and Bakery, Confectionery,
Tobacco and Grain Millers Union, Local 111.
Cases 15–CA–101311, 15–CA–103186, 15–CA–
104063, 15–CA–106033, 15–CA–107597, 15–CA–
108613, 15–CA–109746, 15–CA–109753, 15–CA–
109755, 15–CA–115945, 26–CA–077268, and 26–
CA–077536
August 4, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On July 17, 2014, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply. The General Counsel filed cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to adopt the judge’s rulings, findings,1
and conclusions as modified below, to amend the reme-
dy, and to adopt his recommended Order as modified and
set forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent: (1) violated Sec. 8(a)(5) and (1) by unilaterally installing
surveillance cameras; (2) violated Sec. 8(a)(1) when Supervisor Kenny
White threatened employee Christopher Contreras with job loss; and
(3) violated Sec. 8(a)(3) and (1) by investigating employees Lorraine
Marks and Vicki Loudermilk and placing letters in their personnel files.
Additionally, in the absence of exceptions, we adopt the judge’s dis-
missal of the allegation that Contreras’ discharge was unlawful.
The Respondent filed bare exceptions asserting that the judge erred
in finding that it unlawfully threatened discharge, job loss, and unspeci-
fied reprisals. The Respondent presented no argument in support of
these exceptions. Accordingly, we find, pursuant to Sec. 102.46(b)(2)
of the Board’s Rules and Regulations, that these exceptions should be
disregarded. See, e.g., New Concept Solutions, LLC, 349 NLRB 1136,
1136 fn. 2 (2007).
2 We shall modify the judge’s Conclusions of Law, remedy, and
recommended Order to remedy the violations found and in accordance
with the Board’s standard remedial language. In accordance with our
decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
The Respondent operates a commercial bakery in
Hope, Arkansas. From 2005 until 2013, the Respondent
recognized the Union as the representative of a unit of its
production and sanitation employees. The parties’ most
recent collective-bargaining agreement expired on Feb-
ruary 8, 2012. On July 3, 2013, while a decertification
petition was pending, the Respondent withdrew recogni-
tion from the Union. The judge found, and we agree,
that the withdrawal of recognition was unlawful, and that
the Respondent committed numerous other violations of
Section 8(a)(1), (3), and (5) of the Act before and after
the withdrawal of recognition. Specifically, we affirm
the judge’s findings, for the reasons stated in his deci-
sion, that the Respondent violated Section 8(a)(1) by
creating an impression of surveillance and promising to
reward employees with higher wages and other unspeci-
fied benefits if they rejected the Union; Section 8(a)(3)
and (1) by disciplining employees Sandra Phillips and
Lorraine Marks; and Section 8(a)(5) and (1) by changing
plant access rights and procedures and space for employ-
ee union meetings, withdrawing recognition from the
Union, and unilaterally granting unit employees a wage
increase after withdrawing recognition.3 In addition, for
the reasons explained in section I below, we affirm the
judge’s findings that the Respondent violated Section
8(a)(1) by disparaging the Union, threatening plant clo-
sure, and stating that bargaining would be futile. Finally,
as discussed in section II, we find merit to several of the
General Counsel’s exceptions and accordingly find that
the Respondent promulgated an unlawful rule and con-

we shall modify the judge’s recommended Order to require the Re-
spondent to compensate Marks for the adverse tax consequences, if
any, of receiving a lump-sum backpay award and to file a report with
the Regional Director for Region 15 allocating the backpay award to
the appropriate calendar year. We shall substitute a new notice to con-
form to the Order as modified and in accordance with Durham School
Services, 360 NLRB No. 85 (2014).
3 In affirming the judge’s finding that the Respondent created an
unlawful impression of surveillance, we rely on Frontier Telephone of
Rochester, Inc., 344 NLRB 1270, 1276 (2005), enfd. 181 Fed.Appx. 85
(2d Cir. 2006). In affirming the judge’s findings that the Respondent
unilaterally changed the Union’s access rights before and after it with-
drew recognition from the Union, we rely on T.L.C. St. Petersburg, 307
NLRB 605, 610 (1992), enfd. 985 F.2d 579 (11th Cir. 1993), and Ernst
Home Centers, 308 NLRB 848, 848–849 (1992).
The judge cited two cases, decided by a two-member Board, that
were later invalidated by the Supreme Court. See New Process Steel,
L.P. v. NLRB, 130 S.Ct. 2635 (2010). However, both cases were sub-
sequently reconsidered by a three-member panel of the Board and the
resulting decisions, which adopted the rationale and result of the re-
spective two-member decision, were judicially enforced. Stevens Creek
Chrysler, 353 NLRB 1294, 1295–1296 (2009), incorporated by refer-
ence at 357 NLRB 633 (2011), enfd. Mathew Enterprise v. NLRB, 498
Fed.Appx. 45 (D.C. Cir. 2012); Turtle Bay Resorts, 353 NLRB 1242,
1275 (2009), incorporated by reference at 355 NLRB 706 (2010), enfd.
452 Fed.Appx. 433 (5th Cir. 2011).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ducted unlawful interrogations.4
I.
A. Unlawful Disparagement of the Union
On January 17, 2013, the Respondent disseminated a
document entitled: “Answers to Employee Questions
Dated January 16, 2013.”5 The document asserted that it
was presenting “the facts and truths about contract nego-
tiations and union statements.” It began by recounting
the bankruptcy eight years earlier of the Respondent’s
predecessor, Meyer’s Bakeries, whose employees had
been represented by the Union. The document then ad-
dressed the parties’ prior contracts, noted that the parties
had been negotiating a new contract for close to a year,
and stated that, in the event of impasse, the Respondent
could implement its best and final offer. The memo then
stated in relevant part:
All that the union could do is reject the contract terms
and call for a strike (as they recently did at Hostess
Bakeries)6 but the union cannot guarantee anything
SBLLC [Southern Bakeries] does not agree to do. The
union cannot guarantee 45 to 50 cent raises or any rais-
es. The union appears to have plans to take our em-
ployees out on strike here in Hope, same as they did re-
cently at Hostess, where over 18,000 jobs were lost and
33 bakeries and 500 retail outlets were closed. Perhaps
that is why the International (Maryland) BCTGM rep-
resentatives have come to Hope.
. . . .
The union often makes promises they have no ability to
keep. . . . The union leaders have nothing to lose be-
cause while employees are on strike the leaders still
have their pay, benefits and employment even if our
employees have none. For your protection, ask the un-
ion to put their guarantees and promises in writing.
. . . .
The union statement that [the Respondent] is “gonna
fire [H]ispanics (Latino employees) if they change their
names” simply makes us sad and is entirely false. We
believe the union feels they can frighten our employees
into allowing the union to continue to control their

4 We find it unnecessary to pass on the judge’s finding that the Re-
spondent violated Sec. 8(a)(1) by coercively interrogating employees
on January 23, 2013, as it would be cumulative of other violations
found.
5 There was no testimony about the memo or the “employee ques-
tions” to which it refers.
6 Here and elsewhere in the record, the Respondent referred to
Hostess Bakeries, a company with employees represented by the Un-
ion.
working lives at SBLLC.
In fact, SBLLC values the diversity of our workforce.
We are truly an Equal Opportunity Employer. We
welcome all applicants, including Latino applicants and
employees as evidenced by the large number of Latino
employees that are currently a part of our team.
You should ask the union if they have ever complained
about SBLLC supposedly favoring Hispanic applicants
and employees. They have complained. We deter-
mined that their complaints were factually unfounded –
we treat all applicants and employees equally. The
company provided the Local union with a copy of our
Equal Employment Opportunity policy to review with
the International and raised concerns that the Local was
discriminating against Hispanics through targeted
grievance allegations.
In addition, the document repeatedly labeled the Union’s
alleged campaign statements as “incredible,” “false,” “mis-
leading,” and “frighten[ing].” We therefore agree with the
judge that the document unlawfully disparaged the Union.
Section 8(c) protects “the expressi[on] of any views,
argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form . . . if
such expression contains no threat of reprisal or force or
promise of benefit.” Indeed, “an employer may criticize,
disparage, or denigrate a union without running afoul of
Section 8(a)(1), provided that its expression of opinion
does not threaten employees or otherwise interfere with
the Section 7 rights of employees.” Children’s Center
for Behavioral Development, 347 NLRB 35, 35 (2006).
Nevertheless, such statements must be considered in con-
text, not in isolation, and disparaging statements uttered
in the context of other unfair labor practices may rise to
the level of unlawful threats. See, e.g., Fred Meyer
Stores, 362 NLRB No. 82, slip op. at 3–4 (2015) (store
manager’s angry remarks that employees did not need a
union and accusing the union of stealing from the em-
ployees constituted unlawful disparagement when uttered
in the context of unlawful threats and expulsion of union
representatives); Sears, Roebuck & Co., 305 NLRB 193,
193 (1991); Sheraton Hotel Waterbury, 312 NLRB 304,
304 fn. 3, 305, 338 (1993), enfd. in relevant part 31 F.3d
79 (2d Cir. 1994).7 We agree with the judge that the Re-

7 Contrary to our colleague’s mischaracterization of the standard for
unlawful disparagement, we rely on the well-supported principle stated
in Fred Meyer Stores that “disparaging statements uttered in the context
of the commission of unfair labor practices or in response to protected
concerted activity may rise to the level of unlawful threats.” Above,
362 NLRB No. 82, slip op. at 3 (citing Turtle Bay Resorts, 353 NLRB
1242, 1278–1279 (2009), incorporated by reference 355 NLRB 706
SOUTHERN BAKERIES, LLC 3
spondent’s memo unlawfully disparaged the Union by
implicitly threatening that continued representation
would lead to plant closure and by appealing to racial
prejudice.
An employer’s statement that presumes or asserts that
a union would follow a certain course of action is often
coercive, because the employer cannot have objective
foreknowledge of what the union would choose to do.
Iplli, Inc., 321 NLRB 463, 468 (1996). In a memo pur-
porting to share “facts and truths” relevant to current
contract negotiations, the Respondent first emphasized
the long-ago Meyer’s bankruptcy and highlighted that
the Union had represented Meyer’s employees, who lost
their jobs. The memo later alluded to the Hostess bank-
ruptcy and suggested that a strike the Union organized
among Hostess employees led to job loss and plant clo-
sure. The memo drew a parallel between the Meyer’s
and Hostess bankruptcies, and a causal connection be-
tween the Union and Hostess’ plant closures, noting
(without explanation) that the Union “appears to have
plans to take [the Respondent’s] employees out on strike,
same as [the Union] did recently at Hostess, where over
18,000 jobs were lost and 33 bakeries and 500 retail out-
lets were closed.”8 In the overall context of the memo,

(2010)).
8 The dissent finds it legally significant that the memo stated that the
Union “appears” to have “plans” to call a strike. However, an employ-
er’s lack of certitude about a union’s plans to call a strike does not
defeat a finding of an unlawful threat of plant closure predicated upon
strike activity. Homer D. Bronson Co., 349 NLRB 512, 514 (2007),
enfd. 273 Fed.Appx. 32 (2d Cir. 2008). The dissent attempts to distin-
guish Homer D. Bronson on the ground that the employer in that case
told employees that it had previously closed two of its own plants,
while the Respondent here used the Hostess plant closure simply as an
example. In the dissent’s view, the Respondent’s memo merely “invit-
ed its employees to consider whether the Union would use its bargain-
ing strength and economic weapons to render the Respondent uncom-
petitive.” We disagree. The Respondent did in fact refer to its own
represented employees’ job loss during the Meyer’s bankruptcy. And it
drew a parallel between the Meyer’s bankruptcy and that of Hostess,
attributing job loss at Hostess to the Union’s strike strategy, with no
discussion of Hostess’ relative competitiveness as a result of the strike.
It also emphasized that employees lost jobs when represented by the
Union during the Meyer’s bankruptcy. We have no doubt that employ-
ees would have understood the message to be that unionization—
particularly by this Union—results in job loss and plant closure.
The dissent also mistakenly claims that the judge improperly placed
the burden on the Respondent to prove the veracity of its prediction.
An employer bears the burden of showing its predictions are based on
objective fact. See NLRB v. Gissel Packing Co., 395 U.S. 575, 619–
620 (1969); Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995).
Accord Blaser Tool & Mold Co., 196 NLRB 374, 374 (1972). Moreo-
ver, the dissent’s contention that the Respondent’s statements linking
the Union to plant closure are merely misrepresentations to be evaluat-
ed under Midland National Life Insurance, 263 NLRB 127 (1982),
fails. The Board specifically stated in Midland National that it would
“continue to protect against . . . campaign conduct, such as threats,
promises, or the like, which interferes with employee free choice.” Id.
these statements unlawfully disparaged the Union by
threatening that the Union would recklessly place jobs in
jeopardy and that continued representation would lead to
strikes and plant closure. Cf. Homer D. Bronson Co.,
above, 349 NLRB at 514 (finding unlawful threats of
plant closure where employer told employees two facili-
ties had closed because it was “fed up and tired of
strikes” and that employees should ask themselves, “will
this Union do to this new [company] what it did to the
old [company]”).9
The Respondent’s statements regarding the treatment
of Latino employees further support a finding of dispar-
agement.10 Two statements in the memo are relevant to

at 133.
9 Contrary to the dissent’s assertion, the Board has found statements
to be unlawful where employers have used examples of other unions
and other employers to threaten plant closure in the event of a strike.
See Eldorado Tool, 325 NLRB 222, 223 (1997) (list of union-
represented companies that had closed, with employer’s name followed
by question mark, found unlawful); cf. Shelby Tissue, 316 NLRB 646,
646 (1995) (setting aside election where the employer stated that the
union represented another employer where the work force had de-
creased from 1200 to 650 and that the remainder would soon be out of
jobs).
The cases cited by the dissent are distinguishable. For example, in
Stanadyne Automotive Corp., 345 NLRB 85, 89–90 (2005), enfd. in
relevant part 520 F.3d 192 (2d Cir. 2008), the Board emphasized that
the employer refrained from “embellishment regarding the security of
its future, conveying only what had happened in the past,” and drew no
causal connection between the union and prior plant closures. In Man-
hattan Crowne Plaza, 341 NLRB 619 (2004), the employer made “no
prediction at all” about what would happen at its own plant. In EDP
Medical Computer Systems, Inc., 284 NLRB 1232, 1264 (1987), the
employer displayed a poster showing three unionized companies that
had closed, but did not predict or suggest what the union would do at its
facility. Here, by contrast, the Respondent drew a causal connection
between the Union’s strike and the loss of 18,000 jobs without provid-
ing any evidence for such a connection, and rather than conceding that
each set of negotiations is different, the Respondent suggested, again
without citing any evidence, that the Union “may” have “plans” to
strike at the Respondent’s facility.
10 We do not share the dissent’s concern that the Respondent’s due
process right was violated by the judge’s consideration of racial state-
ments in the memo. As an initial matter, the Respondent does not
argue that its due process right was violated. Failure to assert denial of
due process constitutes waiver of that defense. Print Fulfillment Ser-
vices LLC, 361 NLRB No. 144, slip op. at 4 (2014) (citing Rules and
Regulations of the National Labor Relations Board Sec. 102.46(b)(2)).
Moreover, as our colleague himself states in his discussion of state-
ments of futility, allegedly unlawful statements are to be evaluated in
context. Accordingly, it is proper to consider the entire memo in as-
sessing the allegation of unlawful disparagement, including the racial
statements contained therein. Finally, we disagree with the dissent to
the extent it appears to argue that we cannot consider the memo’s accu-
sation that the Union discriminated against Hispanics in the processing
of grievances because that portion of the memo was not specifically
cited in the complaint or discussed by the judge. As our colleague
correctly observes, the complaint cites the memo generally as contain-
ing statements unlawfully disparaging the Union, and we have consid-
ered the memo as a whole in making our determination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
this issue. First, the memo alleges that the Union told
employees that the Respondent would discriminate
against Latinos if they changed their names. The memo
characterizes the Union’s statement as “simply false” and
an attempt to “frighten our employees into allowing the
union” to remain. Second, the memo accuses the Union
of discriminating against Hispanic employees in the pro-
cessing of grievances. Even assuming, as the dissent
contends, that the Respondent’s first statement is a law-
ful response to the Union’s own campaign assertions, the
Respondent’s second statement went further: it reached
out and accused the Union of racial discrimination.
There is no indication in the record that allegations of
discriminatory grievance-handling had previously been
an issue in the campaign. In light of the overall context
of the memo, which repeatedly accused the Union of
intentionally misleading and frightening employees and
recklessly endangering jobs, we find the Respondent’s
statement to be additional evidence of unlawful dispar-
agement.
B. Threats of Plant Closure and Statements of Futility of
Bargaining at Captive-Audience Meetings
In January and February 2013, Executive Vice Presi-
dent/General Manager Rickey Ledbetter delivered sever-
al captive audience speeches to groups of 150 to 170
bargaining unit employees in which he: made numerous
statements that linked the Union to the closure of other
companies; characterized the Union as untrustworthy,
powerless in negotiations, and prone to engaging in
strikes that resulted in job loss; and blamed the Union for
the fact that the Respondent’s represented employees
earned less than its unrepresented employees. The judge
found these statements unlawful. We agree.
1. Plant closure
Ledbetter’s speeches were rife with statements that un-
ions had “strangled” companies in several industries
across the country “to death.” Specifically, Ledbetter
referred to Hostess Bakeries, automobile companies, and
steel companies, adding, “[j]ust look at what happened”
to those companies, and concluding, “[t]hat is one of the
reasons we do not want a union here . . . .” We find that
Ledbetter’s statements about the effects of unionization
were not “carefully phrased on the basis of objective
fact” to convey his belief “as to demonstrably probable
consequences beyond his control.” NLRB v. Gissel, su-
pra, 395 U.S. at 618. We reject the dissent’s criticism of
our application of Gissel. Contrary to the dissent’s char-
acterization, Ledbetter did not merely state his opinion
that the Union had caused Hostess to go out of business.
Rather, he accused unions of “strangl[ing]” companies in
multiple industries, with no evidence to support that as-
sertion. By repeating “[j]ust look at what happened,”
Ledbetter did not (as the dissent maintains) merely de-
scribe historic events but rather depicted a causal rela-
tionship between unionization and plant closure. When
Ledbetter said that the Union’s strike “resulted in the loss
of over 18K jobs, the liquidation of 33 bakeries and over
500 bakery stores” and then stated, “[t]hat is one of the
reasons we do not want a union here,” he drew a connec-
tion between the Union’s continued representation of
employees and closure of the Respondent’s facility, us-
ing the example of another company rather than objec-
tive facts about the Respondent. We therefore agree that
Ledbetter’s assertions unlawfully threatened plant clo-
sure.
Moreover, we disagree with the dissent that Ledbet-
ter’s “Job Security” speech indicated only that employ-
ees’ job security was affected by “business conditions”
rather than union representation. Ledbetter claimed that
expenses related to the Union put jobs at risk: “It makes
sense that the more money a company spends on a union,
the less money it has to provide safe, steady, and secure
good-paying jobs for its employees,” echoing a prior
speech in which he claimed that “we have to hire expen-
sive lawyers to help us [with the Union],” which “takes
time away from our efforts to maintain customers and
grow.” He further stated, “[j]ust because the contract is
for a certain period . . . doesn’t mean that the company
has to stay open,” and he accused the Union of “put[ting]
your jobs on the line.” Coupled with Ledbetter’s many
references to closures at other unionized plants, employ-
ees would reasonably understand the message as a threat
of plant closure.
2. Futility
Ledbetter repeatedly depicted the Union as powerless,
capable only of empty promises, and utterly dependent
on what the Respondent would “voluntarily” give. For
example, Ledbetter stated: “unions are free to promise
away” and “can promise employees the moon” but
“could not guarantee anything”; “the union has no power
to make its promises come true”; “all a union can do is
ask and all a union can get is what a company can volun-
tarily agree to give”; “don’t be a victim of believing slick
salespeople”; and “collective bargaining can, and did,
result in your getting less pay than non-union employ-
ees.” The Board has found nearly identical statements
unlawful. See Aqua Cool, 332 NLRB 95, 96 (2000)
(statements indicating that employees are unlikely to win
anything more, and may possibly receive less, at the bar-
gaining table than the bulk of an employer’s other em-
ployees).11 See also Smithfield Foods, Inc., 347 NLRB

11 In attempting to distinguish Aqua Cool, rather than engaging with
SOUTHERN BAKERIES, LLC 5
1225, 1229 (2006) (statements that “this plant will con-
tinue to get pay and benefits similar to the other plants[] .
. . [The union] will not win a strike against Smithfield”
found to be unlawful in context of statement, which Gen-
eral Counsel failed to allege as unlawful, that “the
[u]nion cannot get anybody anything. The only thing the
employees can get is what the company is willing to
give”), petition for review denied 506 F.3d 1078 (D.C.
Cir. 2007); Ring Can Corp., 303 NLRB 353, 353 fn. 2
(1991) (statement that union would be powerless to pre-
vent unlawful consequences was unlawful statement of
futility of unionizing).12
As the judge noted, the legality of any particular
statement depends upon its context. See, e.g., Somerset
Welding & Steel, Inc., 314 NLRB 829, 832 (1994). Our
colleague maintains that Ledbetter did not make unlaw-
ful statements of futility because he at times acknowl-
edged employees’ rights under the Act and employers’
statutory obligation to engage in good faith-bargaining,
and he stated that the Respondent would not retaliate
against employees by reducing wages, benefits, or work-
ing conditions “if the [U]nion were somehow to win the
election.” Unlike our colleague, we would not find that
Ledbetter’s intermittent recognition of employees’ statu-
tory rights negated his numerous statements of futility.13
Accordingly, we affirm the judge’s finding that the Re-
spondent made unlawful statements of futility.
II.
The General Counsel excepts to the judge’s failure to
find several additional allegations. As explained below,

the fact that the Board found the statements upon which we rely to be
unlawful, the dissent focuses on an independently unlawful bargaining-
from-scratch statement in that case, which is irrelevant to the analysis
here. Above, 332 NLRB at 96.
12 Our colleague cites Suburban Journals of Greater St. Louis, 343
NLRB 157 (2004), TCI Cablevision of Washington, Inc., 329 NLRB
700 (1999), and Viacom Cablevision, 267 NLRB 1141 (1983), each of
which is an objections case involving an allegation of promise of bene-
fit. Those cases are distinguishable not only as a doctrinal but also a
factual matter. Unlike in the instant case, in Suburban Journals and
Viacom, the employers provided benefit comparisons only in response
to employee requests, a fact that the Board found legally significant. In
Suburban Journals and Viacom, the employers provided wage and
benefit data for employees to compare. Here, by contrast, the Re-
spondent did not allow employees to draw their own conclusions based
on facts; instead, it blamed collective bargaining for represented em-
ployees’ lower wages. Finally, in all three cases, as in Unifirst Corp.,
346 NLRB 591 (2006), the employers made disclaimers of promises.
In sum, we remain persuaded that the Respondent’s statement about
represented employees’ lower wages was a statement about the futility
of selecting union representation.
13 We note that even when acknowledging employees’ rights to un-
ionize and bargain collectively, Ledbetter emphasized that the Union
was unlikely to win (“if the union were somehow to win the election”),
thereby further emphasizing the weakness of the Union.
we find merit in the General Counsel’s exceptions as to
the promulgation of an unlawful rule and the interroga-
tions of employees Loudermilk, Phillips, and Marks.14
C. Oral Promulgation of an Unlawful Rule
The General Counsel contends that the judge failed to
rule on the complaint allegation that the Respondent vio-
lated Section 8(a)(1) of the Act by orally promulgating
and maintaining an unlawful rule on January 23, 2013,
when Ledbetter stated to approximately 170 unit em-
ployees, “If any of you are harassed or threatened on any
basis during this election campaign, regardless of wheth-
er you are for or against the union, we want to know
about it immediately so we can address the problem.”
We find merit to this exception and conclude that the
Respondent promulgated an unlawful rule.
To begin, we agree with the General Counsel that the
Respondent’s statement constituted the promulgation of a
rule. The statement was made to the vast majority of unit
employees, directing them to report incidents to man-
agement.15 The prospective nature of the directive—

14 The General Counsel excepts to the judge’s finding that it is un-
necessary to pass on the allegation that the Respondent’s grant of the
wage increase to unit employees after it withdrew recognition from the
Union violated Sec. 8(a)(3). Having found that the wage increase vio-
lated Sec. 8(a)(5), we agree with the judge. The finding of an addition-
al violation would not materially affect the remedy. See Raymond F.
Kravis Center for Performing Arts, 351 NLRB 143, 145 (2007), enfd.
550 F.3d 1183 (D.C. Cir. 2008).
Member Hirozawa agrees that the wage increase violated Sec.
8(a)(5), and he would find merit in the General Counsel’s argument that
it also violated Sec. 8(a)(3). The Respondent made numerous promises
in 2013 to reward employees with higher wages if they rejected the
Union, then followed through on those promises by giving unit em-
ployees a raise after it received the decertification petition. See
Raley’s, 236 NLRB 971, 973 (1978) (post-election wage increases
served the double purpose of fulfilling employer’s implied promise of
benefits and rewarding employees for their rejection of union), enfd.
608 F.2d 1374 (9th Cir. 1979), cert. denied 449 U.S. 871 (1980). The
Respondent offered no documentary evidence to support its defense
that it typically gives its unrepresented employees wage increases in
September. Accordingly, the Respondent did not meet its burden to
prove that the unit employees would have received the wage increase
notwithstanding the decertification of the Union.
The General Counsel also excepts to the judge’s dismissal of the al-
legation that the Respondent violated Sec. 8(a)(5) and (1) by cancelling
dues checkoff in July 2013 when it withdrew its recognition from the
Union. The parties’ collective-bargaining agreement had expired on
February 8, 2012. The General Counsel urges the Board to adopt and
apply the reasoning in WKYC-TV, Inc., 359 NLRB No. 30 (2012).
Although WKYC-TV was rendered invalid by the Supreme Court’s
decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board
subsequently overruled Bethlehem Steel, 136 NLRB 1500 (1962), re-
manded on other grounds sub nom. Marine & Shipbuilding Workers v.
NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964),
in Lincoln Lutheran of Racine, 362 NLRB No. 188 (2015). However,
as the Board held in Lincoln Lutheran that its decision would apply
prospectively only, the allegation in this case is dismissed.
15 Cf. Food Services of America, 360 NLRB No. 123, slip op. at 5 fn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
“during this election campaign”—supports the conclu-
sion that Ledbetter promulgated a new rule.16 The Re-
spondent thereafter maintained the rule, as was evident
when Human Resources Manager Linda Burke noted on
the February 4, 2013 statements that she prepared for
employees Vicki Loudermilk, Lorraine Marks, and San-
dra Phillips, “We have received a complaint of potential
harassment regarding the upcoming election. As
Rick[ey] [Ledbetter] promised, we will investigate all
complaints.”
In assessing whether a rule is unlawful, the appropriate
inquiry is whether the rule would “reasonably tend[] to
chill employees in the exercise of their Section 7 rights.”
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd.
203 F.3d 52, 52 (D.C. Cir. 1999). Under this standard, a
rule that explicitly restricts Section 7 rights is unlawful.
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004).17 If the rule does not explicitly restrict Section 7
rights, the finding of a violation is dependent upon a
showing of one of the following: “(1) employees would
reasonably construe the rule to prohibit Section 7 activi-
ty; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id.
We find the rule unlawful for two reasons: employees
would reasonably construe the rule to prohibit Section 7
activity, and the rule was promulgated in response to
union activity. First, with respect to reasonable construc-
tion, “the Act allows employees to engage in persistent
union solicitation even when it annoys or disturbs the
employees who are being solicited. . . . [A]n employer's
invitation to employees to report instances of ‘harass-
ment’ by employees engaged in union activity is [unlaw-
ful].” Ryder Transportation Services, 341 NLRB 761,
761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005). More
generally, rules linking or equating protected activity
with harassment are unlawful. See, e.g., Care One at

11 (2014) (dismissing rule promulgation allegation where statement
was made to a single employee).
16 We reject our colleague’s suggestion that Ledbetter’s directive
was not a rule because it was not accompanied by a threat to discipline
employees if they neglected to report being harassed or threatened.
Threats of discipline for noncompliance are not required for a finding
of rule promulgation. Furthermore, as discussed below, the Respondent
in fact disciplined Loudermilk, Marks, and Phillips on February 4 when
it issued them “Personnel File Documentations” for certain union-
related statements to their colleague, which the Respondent character-
ized as harassment. The judge found the documentations unlawful.
The Respondent does not except to those findings as to Marks and
Loudermilk, and we adopt his findings as to Phillips.
17 For the reasons discussed in William Beaumont Hospital, 363
NLRB No. 162, slip op. at 2–6 (2016), we disagree with our col-
league’s criticism of Lutheran Heritage and note that no party in this
case has asked us to reconsider the Lutheran Heritage standard.
Madison Avenue, 361 NLRB No. 159, slip op. at 3–4
(2014); Boulder City Hospital, 355 NLRB 1247, 1249
(2010). Here, the rule links protected activities with har-
assment and threatens discipline for such conduct. Em-
ployees would thus reasonably construe the rule to pro-
hibit Section 7 activity. Second, the rule was clearly
promulgated in response to protected activity, as indicat-
ed by the specific time span of the rule (“during this elec-
tion campaign”), the subject matter of the targeted “har-
assment” (employees’ opinions about the Union), and the
context in which the rule was promulgated (Ledbetter’s
antiunion speech). See, e.g., Care One, above, slip op. at
3; Invista, 346 NLRB 1269, 1270–1271 (2006). For the-
se reasons, we find that the rule is unlawful.
B. Interrogations on February 4, 2013
The judge found that the Respondent violated Section
8(a)(1) when it interrogated employees about their union
activities. He considered two demonstrative examples,
Supervisor Kenny White’s interrogation of employee
Christopher Contreras and Ledbetter’s interrogation of
unit employees during the January 23, 2013 captive au-
dience meeting. The General Counsel excepts to the
judge’s failure to rule on additional allegations that the
Respondent interrogated Loudermilk, Marks, and Phil-
lips on February 4, 2013.18 We agree with the General
Counsel, and we find the additional interrogations unlaw-
ful. In so doing, we rely on the uncontradicted and mu-
tually corroborative testimony of Marks, Phillips, and
Human Resources Manager Burke, as well as documen-
tary evidence.
Marks and Phillips testified, and Burke admitted, that
on February 4, 2013, Burke met individually with
Loudermilk, Marks, and Phillips and questioned each of
them. Burke used a prepared questionnaire on which she
wrote the employee’s responses. Each form stated: “We
have received a complaint of potential harassment re-
garding the upcoming election. As Rick[ey] [Ledbetter]
promised, we will investigate all complaints. Before you
explain your involvement or lack thereof, . . . please be
reminded [that] . . . dishonesty [is] a termination [sic]
offense, and be reminded that the bakery is under video

18 The Respondent argues that it did not have sufficient notice of this
allegation because the relevant complaint provision states: “About
February 4, 2013, Respondent, by Linda Burke, during captive audi-
ence meetings at Respondent’s facility, interrogated employees con-
cerning their union activities.” Although Burke’s alleged interrogations
on February 4, 2013, did not occur during captive audience meetings,
the Respondent was on notice of the dates, the individuals, and the
basic substance of the claim, and the parties fully litigated the matter.
See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990); Hi-Tech Cable Corp., 318 NLRB 280, 280
(1995), enfd. in part 128 F.3d 271 (5th Cir. 1997). Accordingly, we
find that the Respondent had sufficient notice of this allegation.
SOUTHERN BAKERIES, LLC 7
monitoring.” After questioning each employee, Burke
required her to review the answers Burke had written and
to sign the form.
Burke’s questions were tailored to highlight the Re-
spondent’s knowledge of each employee’s protected ac-
tivity. Burke asked Phillips, “Did you tell [employee
David Capetillo] if he would read the article he would
see the shutdown ([at] Hostess) was not the union’s
fault?” Phillips replied, “No. I just told him to read the
article. . . .” Burke asked Marks whether she made the
following statements: “[Capetillo] would lose his job if
he voted the union out”; “he would be the 1st to go if the
union was gone”; “the Company would fire people like
him if the union was gone”; and “the only reason he had
a job was because his Momma and Daddy worked here.”
Marks denied making those statements. Burke asked
Loudermilk what she spoke to Capetillo about and
whether she solicited him or asked him how he intended
to vote in the election. Loudermilk denied soliciting or
asking Capetillo how he would vote in the election.
The lead Board case regarding the legality of interro-
gations is Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Interrogations
of employees are not per se unlawful; rather, the Board
evaluates “whether under all the circumstances the inter-
rogation reasonably tended to restrain, coerce, or inter-
fere with rights guaranteed by the Act.” Id. at 1177. In
making that determination, the Board considers such
factors as the background, the nature of the information
sought, the identity of the questioner, the place and
method of interrogation, and whether or not the employ-
ee being questioned is an open and active union support-
er. Norton Audubon Hospital, 338 NLRB 320, 320–321
(2002).
Applying the Rossmore House standard, we find that
the interviews were unlawful interrogations. With regard
to the first and second factors, at the time that the inter-
rogations took place, the Respondent had a history of
antiunion hostility and discrimination, including unilat-
eral changes to union access rights in late 2012 and early
2013 and numerous unlawful statements during captive
audience meetings in January and early February 2013.
Moreover, the forms Burke prepared made explicit refer-
ence to Ledbetter’s unlawful instruction to employees to
report harassment during the election campaign and stat-
ed that the purpose of the meeting was to investigate a
complaint of potential harassment regarding the upcom-
ing election. The nature of the information Burke sought
related directly to the union activity of Loudermilk,
Marks, and Phillips, specifically whether they had dis-
cussed the Union and Capetillo’s support for it. In fact,
the questionnaire was unequivocally directed at the em-
ployees’ union activity (“We have received a complaint
of potential harassment regarding the upcoming elec-
tion”) and contained specific questions about conversa-
tions each had with employee Capetillo about the Union.
It also emphasized that the employees could be dis-
charged if they did not respond truthfully to the com-
plaint allegations and reminded the employees that their
activities were under video surveillance. Thus, the threat
of discipline was clear. See ATC of Nevada, 348 NLRB
796, 797 (2006) (questioning conducted under express
threat of suspension constituted unlawful interrogation),
enfd. 309 Fed.Appx. 98 (9th Cir. 2009).
The third and fourth Rossmore House factors also
weigh in favor of a finding of unlawful interrogations.
Burke was the head of the human resources department,
a position that would reasonably convey to employees
that she was responsible for personnel decisions. See
Boulder City Hospital, above at 1247. Burke communi-
cated the gravity of the conversations she had with the
employees by summoning them individually to her of-
fice, Kellwood Co., 299 NLRB 1026, 1026–1027 (1990),
enfd. 948 F.2d 1297 (11th Cir. 1991), and creating a
written record of their statements.19 Under these circum-
stances, we conclude that the Respondent unlawfully
interrogated Loudermilk, Marks, and Phillips on Febru-
ary 4, 2013.
AMENDED CONCLUSIONS OF LAW
Add the following to Conclusion of Law 4to the
judge’s decision.
“h. Orally promulgating and maintaining a rule, which
instructs employees to notify the Respondent if they ‘are
harassed or threatened on any basis during this election
campaign.’”
AMENDED REMEDY
In addition to the remedies proposed by the judge, we
shall require the Respondent to compensate Lorraine
Marks for the adverse tax consequences, if any, of re-
ceiving a lump-sum backpay award, and file with the
Regional Director for Region 15, within 21 days of the

19 The record reveals that Marks and Phillips were active supporters
of the Union. That is the sole Rossmore House factor weighing against
a finding of unlawful interrogation; however, it is not dispositive, par-
ticularly where, as here, the interrogations took place at a time when the
Respondent was committing other unfair labor practices. See Norton
Audubon Hospital, above, 338 NLRB at 321 (“[T]he fact that [the
employee] was an open union supporter . . . does not, under all the
circumstances[,] . . . negate the coercive nature of [the] interrogation.”).
Cf. Scheid Electric, 355 NLRB 160, 161 (2010) (where respondent
interrogated union steward as to whether he would remain with re-
spondent if it went nonunion, steward’s “status as an open union sup-
porter . . . would reinforce, rather than ameliorate, the coercive effect”
of question).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar year. AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016).
Further, having found that the Respondent orally
promulgated and maintained an unlawful rule, we shall
order the Respondent to rescind the rule and notify its
employees in writing that it has done so.
ORDER
The National Labor Relations Board orders that the
Respondent, Southern Bakeries, LLC, Hope, Arkansas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline, job loss,
closure of the facility, or other unspecified reprisals, if
they engage in activities on behalf of Bakery, Confec-
tionery, Tobacco and Grain Millers Union, Local 111
(the Union) or other protected concerted activities.
(b) Coercively interrogating employees about their un-
ion or other protected concerted activities.
(c) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(d) Threatening employees that retaining the Union as
their collective-bargaining representative would be futile.
(e) Promising employees improved wages and other
unspecified benefits, in order to discourage them from
retaining the Union as their collective-bargaining repre-
sentative.
(f) Disparaging the Union, while appealing to racial
prejudice, in order to discourage employees from retain-
ing the Union as their collective-bargaining representa-
tive.
(g) Orally promulgating and maintaining an overly
broad rule in response to union activity instructing em-
ployees to report harassment and threats on any basis
during the election campaign, regardless of whether they
were for or against the Union.
(h) Commencing disciplinary investigations against,
issuing written warnings and personnel file documenta-
tions to, and suspending employees because of their sup-
port for and activities on behalf of the Union.
(i) Withdrawing recognition from the Union and fail-
ing and refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of unit employ-
ees.
(j) Unilaterally granting a wage increase to its unit em-
ployees, without providing the Union notice and an op-
portunity to bargain.
(k) Unilaterally implementing new rules regarding the
Union's access to unit employees at the plant, and barring
the Union from entering the plant, without first notifying
the Union and giving it an opportunity to bargain.
(l) Unilaterally installing surveillance cameras in the
break area, without first notifying the Union and giving it
an opportunity to bargain.
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time production and sani-
tation employees employed by the Company at its
Hope, Arkansas plant, excluding all other employees,
including temporary and seasonal employees as defined
in the parties’ expired collective-bargaining agreement,
office clerical employees, professional employees,
guards and supervisors as defined by the Act.
(b) On request by the Union, rescind the wage increase
to bargaining unit employees that was implemented in
September 2013, and bargain with the Union before im-
plementing future wage and benefit increases for unit
employees, provided, however, that nothing in this Order
shall be construed as requiring or authorizing the Re-
spondent to cancel any unilateral change that benefited
the unit employees unless the Union requests such ac-
tion.
(c) Restore the plant access policy, including the win-
dowed wall that divided the break area, which was in
effect prior to March 8, 2012.
(d) Remove the surveillance cameras that were in-
stalled in the break area, and bargain with the Union be-
fore installing such cameras in the break area in the fu-
ture.
(e) Within 14 days from the date of this Order, rescind,
in writing, the orally promulgated and maintained rule
that unlawfully instructs employees to report harassment
and threats on any basis during the election campaign,
regardless of whether they were for or against the Union,
and, within 3 days thereafter, notify employees in writing
that this rule has been rescinded.
(f) Make Lorraine Marks whole for any loss of earn-
ings and other benefits resulting from her suspension, in
the manner set forth in the judge’s decision as amended
in this decision.
(g) Compensate Lorraine Marks for the adverse tax
consequences, if any, of receiving a lump-sum backpay
SOUTHERN BAKERIES, LLC 9
award, and file with the Regional Director for Region 15,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful disciplinary
investigations of Sandra Phillips, Lorraine Marks, and
Vicki Loudermilk, Marks’ and Loudermilk’s Personnel
File Documentations, Phillips’ written warning, and
Marks’ suspension, and, within 3 days thereafter, notify
the affected employees in writing that this has been done
and that the investigations, Personnel File Documenta-
tions, written warning, and suspension will not be used
against them in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the backpay amounts due under the
terms of this Order.
(j) Within 14 days after service by the Region, post at
its Hope, Arkansas, facility copies of the attached notice
marked “Appendix”20 in English and Spanish. Copies of
the notice, on forms provided by the Regional Director
for Region 15, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by it at the facility at any time since March 8, 2012.
(k) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which will be

20 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.”
scheduled to ensure the widest possible attendance of
unit employees, at which time the attached notice marked
“Appendix” is to be read to the employees in English by
Rickey Ledbetter (or the current executive vice presi-
dent/general manager), in the presence of a Board agent,
or, at the Respondent’s option, by a Board agent in that
official’s presence, and shall also be read, by interpreters,
in Spanish.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. August 4, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I join my colleagues in finding that Southern Bakeries,
LLC (Southern Bakeries or the Respondent) committed a
number of unfair labor practices while negotiating with
the Bakery, Confectionary, Tobacco and Grain Millers
Union, Local 111 (the Union) for a successor collective-
bargaining agreement during the pendency of a decertifi-
cation petition.1 However, I respectfully dissent from the

1 Specifically, I join my colleagues in finding that the Respondent
violated Sec. 8(a)(1) by creating an impression that employees’ union
activities were under surveillance, by coercively interrogating employ-
ee Christopher Contreras about his union sentiments, and by promising
job applicant Jeremy Woods higher wages were he to vote against the
Union in a decertification election; Sec. 8(a)(3) by disciplining employ-
ees Sandra Phillips and Lorraine Marks because of their union activi-
ties; and Sec. 8(a)(5) by changing the access rights accorded to union
agents, by withdrawing recognition from the Union, and by thereafter
unilaterally granting unit employees a wage increase. I also join my
colleagues in dismissing complaint allegations that the Respondent
violated Sec. 8(a)(1) by engaging in surveillance of employees’ union
activities and Sec. 8(a)(5) and (1) by cancelling dues checkoff after the
parties’ collective-bargaining agreement expired. With regard to the
latter issue, I would find the Respondent’s cancellation of dues
checkoff after contract expiration lawful under Bethlehem Steel, 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
findings that the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (NLRA or the Act) by
allegedly (i) disparaging the Union, (ii) threatening to
close the plant if employees failed to decertify the Union,
(iii) threatening that it would be futile for employees to
retain the Union, and (iv) informing employees that it
would like to know if they were threatened or suffered
harassment during the decertification-election campaign.
In my view, the Board majority errs in several re-
spects. Contrary to Section 8(c) of the Act, my col-
leagues improperly infer unlawful motivation from per-
missible statements of opinion.2 Contrary to longstand-
ing Board precedent, the majority improperly makes
findings regarding the accuracy of statements made dur-
ing an election campaign.3 I believe my colleagues im-
properly regard lawful statements of fact as unlawful
threats, and they erroneously rely on inferences that em-
ployees may draw from events that have been accurately
(and lawfully) described. And I believe my colleagues,
by improperly penalizing the Respondent’s invitation for
employees to report harassment and threats, unreasona-
bly limit the right of employees to protection from har-
assment based on their sentiments regarding union repre-
sentation, and my colleagues also unreasonably limit the
right of employers to address such harassment. Accord-
ingly, as to these issues, I respectfully dissent.
Facts
The Respondent operates a commercial bakery in
Hope, Arkansas. The bakery was previously owned and
operated by Meyer’s Bakeries, Incorporated. In early
2005, Meyer’s Bakeries declared bankruptcy, closed the

NLRB 1500 (1962), remanded on other grounds sub nom. Marine &
Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert.
denied 375 U.S. 984 (1964), to which I would adhere. See Lincoln
Lutheran of Racine, 362 NLRB No. 188, slip op. at 9–15 (2015)
(Members Miscimarra and Johnson, dissenting in part).
Having found that the Respondent violated Sec. 8(a)(5) when it uni-
laterally granted bargaining-unit employees a wage increase following
its unlawful withdrawal of recognition from the Union, I join Chairman
Pearce in finding it unnecessary to reach and decide whether the wage
increase additionally violated Sec. 8(a)(3), since any additional 8(a)(3)
finding would not materially affect the remedy. Similarly, having
found that the Respondent coercively interrogated Contreras and un-
lawfully promised Woods higher wages if he opposed the Union, I find
it unnecessary to decide whether the Respondent engaged in any other
coercive interrogations or unlawfully promised to improve wages or
other terms and conditions of employment at captive-audience meet-
ings, since any additional violation findings would not affect the reme-
dy.
2 Sec. 8(c) of the Act provides that “[t]he expressing of any views,
argument, or opinion, or the dissemination thereof, . . . shall not consti-
tute or be evidence of an unfair labor practice under any of the provi-
sions of this Act, if such expression contains no threat of reprisal or
force or promise of benefit.”
3 See Midland National Life Insurance Co., 263 NLRB 127 (1982).
bakery, and terminated its work force. In March 2005,
the Respondent purchased certain assets from Meyer’s
Bakeries, including the bakery in Hope, and began busi-
ness as Southern Bakeries. The Respondent continued,
without substantial change, Meyer’s Bakeries’ business
operations, and a majority of the workers hired by the
Respondent had been employed by Meyer’s Bakeries.
Accordingly, the Respondent, as a legal successor to
Meyer’s Bakeries under well-established law,4 immedi-
ately recognized the Union as the employees’ collective-
bargaining representative and negotiated a series of col-
lective-bargaining agreements, the most recent of which
expired on February 8, 2012.
During the “window period” before that agreement ex-
pired, an employee, Nadine Pugh, filed a decertification
petition with the Board on December 7, 2011.5 That pe-
tition never resulted in an election because of blocking
charges the Union filed with the Board.6 A second de-
certification petition was filed by employee John
Hankins on May 23, 2012. An election was scheduled
for February 2013, but it, too, was never conducted be-
cause of additional blocking charges filed by the Union.
In late 2012, shortly before the events at issue here, the
Bakery, Confectionary, Tobacco and Grain Millers Un-
ion (BCTGM) engaged in a highly publicized economic
strike against Hostess Brands, which had recently gone
into bankruptcy. See, e.g., Hostess, Still at Odds with
Union, Moves Ahead with Liquidation, Wash. Post, Nov.
21, 2012, at A12 (2012 WLNR 24756767). Although the
Teamsters, which represented nearly 7000 Hostess
Brands’ employees, agreed to concessions in an effort to
keep Hostess in business, the BCTGM did not.7 In No-

4 See NLRB v. Burns Security Services, 406 U.S. 272 (1972); Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987).
5 More than 60 days and fewer than 90 days before the expiration
date of a collective-bargaining agreement, a representation petition may
be filed by an employee seeking to decertify the union, i.e., to terminate
its status as the employees’ bargaining representative, or by a rival
union seeking to supplant the incumbent union. See Leonard Whole-
sale Meats, 136 NLRB 1000 (1962). This 60-90 day period is called
the “window period.”
6 Subject to certain exceptions, where a representation petition has
been filed with the Board and a party to the petition subsequently files
an unfair labor practice charge alleging conduct that, if proven, would
interfere with employee free choice, the Board holds in abeyance the
processing of the pending election petition. Such a charge is called a
“blocking” charge. For a discussion of my views and those of former
Member Johnson concerning the Board’s blocking-charge policy, see
“Representation-Case Procedures; Final Rule,” 79 Fed. Reg. 74308,
74455–74456 (Dec. 15, 2014).
7 See “Hostess Brands closing for good,” CNN Money (Nov. 16,
2012) (http://money.cnn.com/2012/11/16/news/companies/hostess-
closing/ (last visited July 28, 2016)). Although the Teamsters blamed
the closure on “mismanagement by Hostess executives,” “it was also
critical of the decision of Bakers’ union [BCTGM], although it did not
identify the union by name. ‘Unfortunately, the company’s operating
SOUTHERN BAKERIES, LLC 11
vember 2012, Hostess Brands closed all its bakeries and
terminated approximately 18,000 workers nationwide,
citing the economic pressure placed on it by the
BCTGM. It is against this background that the Respond-
ent spoke to employees about collective bargaining,
strikes, and job security during the decertification cam-
paign in early 2013.
Discussion
A. Alleged Disparagement of the Union
The judge found that the Respondent violated Section
8(a)(1) of the Act by disparaging the Union in a memo to
employees that it posted on January 17, 2013.8 The ana-
lytical framework that governs alleged unlawful dispar-
agement under the NLRA starts with Section 8(c) of the
Act. Reflecting free speech guarantees conferred by the
First Amendment, Section 8(c) gives employers the right
to express “views, argument, or opinion” about union-
related matters, provided such expressions do not contain
any threat of reprisal or force or promise of benefit. See
Section 8(c) (quoted in fn. 2, supra); NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969). It is well settled
that “an employer may criticize, disparage, or denigrate a
union without running afoul of Section 8(a)(1), provided
that its expression of opinion does not threaten employ-
ees or otherwise interfere with the Section 7 rights of
employees.” Children’s Center for Behavioral Devel-
opment, 347 NLRB 35, 35 (2006); see also Trailmobile
Trailer, LLC, 343 NLRB 95, 95 (2004) (“‘Words of dis-
paragement alone concerning a union or its officials are
insufficient for finding a violation of Section 8(a)(1).’”)
(quoting Sears, Roebuck & Co., 305 NLRB 193 (1991)).
Moreover, the Board does not police the accuracy of
statements made during an election campaign. Midland
National Life Insurance, supra, 263 NLRB at 133.9

and financial problems were so severe that it required steep concessions
from a variety of stakeholders but not all stakeholders were willing to
be constructive,’ said Ken Hall, the Teamsters’ Secretary-Treasurer.”
Id.
8 Jt. Exh. 25.
9 Under Midland, the Board will intervene only in cases “where a
party has used forged documents which render the voters unable to
recognize propaganda for what it is.” Id. No forged document is at
issue here.
Citing Fred Meyer Stores, 362 NLRB No. 82 (2015), the majority
posits that an employer’s statements otherwise protected by Sec. 8(c) of
the Act and the First Amendment lose their protected status by mere
proximity to unfair labor practices. I disagree with this view, and I
cannot improve on its characterization by former Member Johnson,
who aptly described it as a “virus-type theory by which unlawful con-
duct apparently infects mere statements of opinion and morphs them
into implied threats,” and who rejected it as “a work around of basic
First Amendment principles [that] does not comport with the express
statutory language that only permits us to find speech unlawful if it
contains a threat or promise.” Fred Meyer Stores, 362 NLRB No. 82,
The Respondent’s January 17 memo was styled as a
response to recent employee questions and described the
then-ongoing negotiations between the Respondent and
the Union. The memo began with a summary of the his-
tory, set forth above, of the Respondent purchasing the
closed bakery from bankrupt Meyer’s Bakeries, extend-
ing recognition to the Union, and negotiating several
collective-bargaining agreements. In the memo, the Re-
spondent asserted that the Union had recently made cer-
tain inaccurate statements about the ongoing contract
negotiations. Specifically, the Respondent denounced as
“false” the Union’s claim that the Respondent would
never negotiate over pensions. The memo pointed out
that the Union had never proposed that the Respondent’s
union-represented employees be covered by a union-
sponsored pension plan, and it emphasized that all its
employees, union and nonunion alike, participate in a
401(k) retirement savings plan.
Additionally, the memo criticized as “misleading and
false” the Union’s claim that nonunion employees “can-
not file a grievance and will be fired for any reason.”
The memo stated that nonunion employees lodge griev-
ances by utilizing the Respondent’s Open Door Policy.
The memo indicated that the Respondent “make[s] every
effort to fully consider all cases of employee discipline,
including discharge,” and it stated that employees “do
not need a union grievance procedure in order to be
treated fairly.”
The Respondent further explained that the NLRA re-
quires the parties to bargain in good faith and that, if the
parties were to reach impasse, the Respondent could law-
fully implement its final offer. The memo stated that the
Union “cannot guarantee anything,” but it can exert eco-
nomic pressure in the form of a strike. The memo further
stated that “[t]he union appears to have plans to take our
employees out on strike here in Hope, same as they did
recently at Hostess, where over 18,000 jobs were lost and
33 bakeries and 500 retail outlets were closed.” Finally,
the Respondent’s memo countered any suggestion that it
would retaliate against Hispanic employees.
In my view, the memo does not contain any threat of
reprisal or force or any promise of benefit. Therefore,
Section 8(c) prohibits the Board from finding that the
memo constitutes or is evidence of an unfair labor prac-
tice, including alleged unlawful disparagement of the
Union. See Children’s Center for Behavioral Develop-
ment, supra, 347 NLRB at 35. The judge, whose deci-
sion the majority adopts, found that the memo contained
a threat to close the bakery, based on its statement that
“the union appears to have plans to take our employees

slip op. at 6–7 (Member Johnson, dissenting in part).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
out on strike” and its reference to the BCTGM’s well-
publicized strike at Hostess.10 For several reasons, I re-
spectfully disagree with the finding that the memo con-
stituted an unlawful threat to close the bakery.
First, the statements the judge characterized as a threat
did not describe what the Respondent might do. They
described what the Union might do. For a statement to
constitute a threat, it must at least purport to describe an
action the speaker or author of the statement may take.
The author of the January 17 memo was the Respondent,
and the memo contained statements regarding what the
Union might do. It stated that “[t]he union appears to
have plans to take our employees out on strike here in
Hope, same as they did recently at Hostess, where over
18,000 jobs were lost and 33 bakeries and 500 retail out-
lets were closed” (emphasis added). I do not believe this
statement can fairly be characterized as a threat by the
Respondent. It was not unlawful for the Respondent to
express its opinion that “the Union appears to have plans
to take our employees out on strike here in Hope.” The
next part of the sentence—observing that the Union had
engaged in a strike at Hostess—also was not unlawful.
Finally, it was not unlawful for the sentence to conclude
by accurately stating that, after the Hostess strike, “over
18,000 jobs were lost and 33 bakeries and 500 retail out-
lets were closed.” These statements, whether construed
individually or together, cannot reasonably be character-
ized as a threat by the Respondent regarding actions that
the Respondent would take in the event of a strike. A
lawful statement is not rendered unlawful merely because
it accurately describes facts that may prompt employees
to question whether similar events could occur if the
same Union engages in similar conduct where those em-
ployees work.11

10 The judge faulted the Respondent for failing to prove that the Un-
ion in fact had concrete plans to strike the Respondent. However, it is
the General Counsel who bears the burden of proving unlawful denigra-
tion, and the General Counsel failed to prove that the Union did not
appear to have plans to strike. In finding a violation here, my col-
leagues reverse the burden of proof. Contrary to their assertion, the
Respondent’s statement—that the Union “appears” to have “plans” to
strike—was not a prediction that a strike would occur. Accordingly,
the Respondent was not obligated to prove an objective basis to support
its statement.
11 To support their conversion of lawful statements of historical fact
into unlawful implied threats of future action, the majority cites Eldo-
rado Tool, 325 NLRB 222 (1997). I agree with the views expressed by
then-Chairman Gould in his partial dissenting opinion in that case:
To be sure, it is a violation of the Act for an employer to threaten, ei-
ther directly or indirectly, to close its facility if its employees select a
union as their collective bargaining representative. It is not unlawful,
however, for an employer to make reference to what the employer
perceives to be a union’s record at other plants. Such references are a
fact of industrial life, frequently part of the rough and tumble of elec-
tioneering, and the Board cannot and should not be responsible for po-
Second, the memo did not claim that a strike was inev-
itable if employees voted to keep the Union. It stated
that the Union “appears” to have “plans” to call a strike.
Appearances may be misleading, and plans may and do
change. Moreover, this was a statement made in the
course of a decertification-election campaign, and it is
well established that the Board does not “probe into the
truth or falsity” of statements made during election cam-
paigns. Midland, supra, 263 NLRB at 133.12
Third, the memo did not state that if a strike occurred,
the Respondent would close the Hope bakery in retalia-
tion against employees for engaging in protected activi-
ties. Instead, it referred to historical facts: the BCTGM
struck Hostess Brands, and Hostess Brands went out of
business. To state facts about what other parties—
Hostess Brands and the BCTGM—have done in the past
is qualitatively different from stating what the Respond-
ent may or would do in the event of a strike in the future.
The Board cannot reasonably find that the Respondent
unlawfully threatened employees that it would close the
bakery in the future when the alleged “threat” consisted
of accurately describing what a different party did in the
past. See, e.g., Stanadyne Automotive Corp., 345 NLRB
85, 89 (2005) (finding no threat where employer, “[b]y
conveying events that had already occurred, . . . attempt-
ed to inform employees of the potential negative effects
of their upcoming vote”), enfd. in relevant part 520 F.3d
192 (2d Cir. 2008); Manhattan Crowne Plaza, 341
NLRB 619, 619–620 (2004) (finding no threat where
employer “provided a recent, concrete example of a neg-
ative outcome for employees who were represented by
the same union”); Medical Computer Systems, Inc., 284
NLRB 1232, 1264 (1987) (finding no threat where em-
ployer displayed poster entitled “Is this job security?”
depicting unionized companies that had closed; employer
had a “right to . . . stat[e] ‘economic reality’ by inform-
ing employees of these events”).13

licing the objective considerations relied on by an employer. If an
employer’s statements are not complete or are inaccurate, it is for the
union to respond.
325 NLRB at 225.
12 My colleagues note that the Board in Midland assured that it would
continue to protect against threats and promises made in the course of
an election campaign. In other words, in their view Midland does not
apply here. But this merely begs the question whether the Respond-
ent’s January 17 memo contained threats. I believe it did not, for the
reasons explained in the text.
13 Homer D. Bronson Co., 349 NLRB 512 (2007), enfd. 273
Fed.Appx. 32 (2d Cir. 2008), relied on by the majority, is distinguisha-
ble. In that case, the employer told employees that it had previously
closed two of its other unionized facilities because it was “fed up and
tired of strikes” before asking them to contemplate whether the union
would do to the company what it had done before. Id. at 514. Here,
unlike in Homer D. Bronson, the Respondent did not accompany its
SOUTHERN BAKERIES, LLC 13
The judge separately found that the memo’s criticism
of the Union constituted unlawful disparagement after
finding that the memo contained an “appeal to racial
prejudice.” Preliminarily, I observe that the complaint
did not allege, and the General Counsel’s attorney did
not argue in her post-hearing brief to the judge, that the
Respondent’s January 17 memo contained an appeal to
racial prejudice.14 The judge came up with that theory of
violation sua sponte, which I believe improperly infring-
es on the Respondent’s due process rights.15 In any
event, the judge’s finding is erroneous.
In relevant part, the January 17 memo stated:
The union statement that [Southern Bakeries] is “gonna
fire hispanics (Latino employees) if they change their
names” simply makes us sad and is entirely false. We
believe the union feels they can frighten our employees
into allowing the union to continue to control their
working lives at [Southern Bakeries]. In fact, [South-
ern Bakeries] values the diversity of our workforce.
We are truly an Equal Opportunity Employer. We wel-
come all applicants, including Latino applicants and
employees as evidenced by the large number of Latino
employees that are currently a part of our team.16
The judge faulted the Respondent for failing to prove at the
hearing that the Union in fact told employees that the Re-
spondent would fire Latino employees if they changed their
names. As explained above, however, under Midland, the
Board does not inquire into the accuracy of parties’ cam-

statement that it appeared the Union had plans to call a strike by saying
that it had already closed a unionized facility because it was “fed up”
with protected strike activity. Rather, the Respondent pointed to a
recent high-profile strike called by the BCTGM and the fact that the
struck employer subsequently went out of business. The employer in
Homer D. Bronson Co. implicitly threatened a retaliatory plant closure.
In contrast, the Respondent here invited its employees to consider
whether the Union would use its bargaining strength and economic
weapons to render the Respondent uncompetitive in the industry.
14 Regarding the January 17 memo, the complaint advanced two al-
legations: (i) that the memo threatened employees with plant closure,
and (ii) that the memo unlawfully accused the Union of making state-
ments that were “simply false.” Counsel for the General Counsel’s
post-hearing brief to the judge clarified the latter allegation, stating that
the January 17 memo “contains the following statement which unfairly
disparaged and undermined the Union: ‘The union statement that
“SBLLC [Southern Bakeries] rejects union representative visits to the
Plant” is simply false as evidenced by the meeting you just had with the
visitors from the International BCTGM union from Maryland.’” Noth-
ing in either the complaint or the theory of the case as argued to the
judge by the General Counsel’s attorney so much as hinted that the
January 17 memo contained an appeal to racial prejudice.
15 Because the Respondent does not except on due process grounds
to the judge’s sua sponte finding that it appealed to racial prejudice by
refuting the allegation that it was “gonna fire hispanics,” I reach the
merits of that issue.
16 Jt. Exh. 25 at 4 (emphasis added).
paign-related speech. Midland National Life Insurance,
supra, 263 NLRB at 133. Moreover, even if it were proper
to evaluate the truthfulness of Respondent’s statement, the
burden of proving that the Respondent unlawfully dispar-
aged the Union rests with the General Counsel, and judge’s
approach erroneously reverses the burden of proof by re-
quiring the Respondent to prove the factual accuracy of its
campaign statements rather than requiring the General
Counsel to prove their inaccuracy. That approach is irrec-
oncilable with the Act,17 and it impermissibly has a chilling
effect on protected speech.18 In any event, regardless
whether the Union actually made the statement attributed to
it (a matter on which the record is silent), the memo does
not contain an appeal to racial prejudice. To the contrary,
the memo reflects an effort by the Respondent to refute any
accusation that it would treat employees differently based
on race or ethnicity, and it describes the Respondent as an
“Equal Opportunity Employer.”19 I believe it turns the rec-
ord evidence upside down to characterize a statement dis-
claiming discrimination based on race or ethnicity as a
threat to discriminate based on impermissible considera-
tions.20

17 Sec. 10(c) of the Act requires that unfair labor practice findings be
supported by a “preponderance” of the evidence.
18 See Sec. 8(c) of the Act, quoted in fn. 22, supra.
19 Holiday Inn of Chicago-South, 209 NLRB 11 (1974), cited by the
judge, is distinguishable. In that case, the Board found that an employ-
er violated Sec. 8(a)(1) during a campaign by making a “threat to the
employees either that current part-time employees would be replaced
by blacks if the [u]nion won the election or that they would have to
work alongside blacks, a condition which certain employees might
consider unpleasant.” Id. at 11. In contrast, the Respondent here did
not make any threat or any appeal to racial bigotry.
20 The only statement in the Respondent’s January 17 memo that the
judge found constituted an “appeal to racial prejudice” amounting to
unlawful disparagement of the Union is the memo’s assertion that the
Union had misleadingly alleged that the Company is “gonna fire his-
panics (Latino employees) if they change their names.” As I pointed
out above, the complaint did not allege and the General Counsel did not
argue that this or any other statement in the January 17 memo constitut-
ed an appeal to racial prejudice. Aware, no doubt, that the judge gratui-
tously made an unsolicited unfair labor practice finding that had not
even been alleged or argued, the General Counsel’s attorney, when she
filed cross-exceptions to the judge’s decision, did not contend that the
judge should have found that additional statements also constituted an
appeal to racial prejudice, nor did she identify or present any arguments
regarding other statements allegedly involving race in her answering
brief to the Respondent’s exceptions.
Nonetheless, the majority doubles down on the judge’s infringement
on the Respondent’s due process rights by identifying yet another al-
leged appeal to racial prejudice based on the memo’s statement that the
Respondent had “raised concerns [to the Union] that the Local was
discriminating against Hispanics through targeted grievance allega-
tions.” The General Counsel never argued to the judge or the Board
that the Respondent’s statement was inaccurate or constituted an appeal
to racial prejudice or tended to disparage the Union. Perhaps the Gen-
eral Counsel declined to make any such allegations because the Re-
spondent did in fact raise those concerns to the Union and had a rea-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
For these reasons, I believe the disparagement allega-
tion is unsupported by the record and must be dismissed.
B. Alleged Threats of Plant Closure and Futility at Cap-
tive-Audience Meetings
The majority finds that the Respondent, during cap-
tive-audience meetings, threatened to close the Hope
bakery if employees failed to decertify the Union. I be-
lieve this finding is contradicted by the record evidence
regarding what the Respondent’s representatives actually
stated.
There is no question that the Respondent made state-
ments that repeatedly expressed the view that it opposed
union representation and that described other employers
and workplaces where represented employees experi-
enced layoffs or closings. However, even if employees
might be persuaded to disfavor representation because of
such statements, this does not mean the statements con-
stituted unlawful threats to close the bakery if employees
retained the Union. As the Supreme Court stated in
NLRB v. Gissel Packing Co., supra, 395 U.S. at 617–618,
“an employer's free speech right to communicate his
views to his employees is firmly established and cannot
be infringed by . . . the Board,” and “an employer is free
to communicate to his employees any of his general
views about unionism or any of his specific views about a
particular union, so long as the communications do not
contain a ‘threat of reprisal or force or promise of
benefit’” (quoting Sec. 8(c)) (emphasis added).
The most strongly worded statements were contained
in the “Kick-Off Speech” delivered by Executive Vice
President/General Manager Rickey Ledbetter:

sonable basis for doing so. We simply do not know on this record
because the issue was never raised. Cf. Smithfield Foods, Inc., 347
NLRB 1225, 1227 fn. 13 (2006) (finding that General Counsel failed to
put employer on reasonable notice of what portions of videotaped
speeches were alleged to violate the Act), petition for review denied
506 F.3d 1078 (D.C. Cir. 2007). Of course, potential discriminatory
treatment of unit employees by the Union was a perfectly legitimate
campaign topic. Yet the majority finds that the Respondent violated the
Act by advising employees that it had raised such concerns to the Un-
ion because, according to my colleagues, “there is no indication in the
record that allegations of discriminatory grievance-handling had previ-
ously been an issue in the campaign.” But it does not violate the Act
for somebody to be the first to raise a campaign issue. Moreover, as-
suming for argument’s sake that the Respondent’s campaign-related
statement that it had raised concerns of discriminatory grievance-
handling to the Union was untruthful (and there is no basis in the record
to so conclude), it was for the Union to correct the record, because the
Board has held that the legality of campaign statements does not turn
on their truth or falsity. Midland National Life Insurance, supra. Con-
sequently, for both procedural and substantive reasons, I think that the
majority errs in relying on the statement regarding discriminatory
grievance-handling in finding that the Respondent unlawfully dispar-
aged the Union.
From an economic standpoint, we do not want a union
because we believe it drags our Company down in so
many ways. If we can’t meet or beat the competition,
we can’t survive. Just look at what happened to the
Hostess Bakeries, Automobile companies and Steel
companies. Unions strangled these companies to
death. To compete, especially in our business we have
to sell a better product at a better price delivered in a
more dependable manner than our competitors.
. . . .
Just look at what happened to Meyer’s Bakeries and
most recently at Hostess. At Hostess, a union strike by
the BCTGM resulted in the loss of over 18K jobs, the
liquidation of 33 bakeries and over 500 bakery stores.
That is one of the reasons we do not want a union here .
. . .21
Ledbetter obviously sought to persuade his audience to
vote against the Union. However, he did not state or
imply that the Respondent would close the Hope bakery
if its employees voted to retain the Union as their bar-
gaining representative. Most of his statements concerned
the past, not the future—e.g., “[j]ust look at what hap-
pened to the Hostess Bakeries, Automobile companies
and Steel companies. Unions strangled these companies
to death.” Ledbetter’s forward-looking statements linked
Southern Bakeries’ survival to its ability to compete. He
stated that “[i]f we can’t meet or beat the competition, we
can’t survive,” and “[t]o compete, . . . we have to sell a
better product at a better price delivered in a more de-
pendable manner than our competitors.” To be sure,
Ledbetter referred to unionized employers that had not
survived, including Hostess Brands. As stated above,
however, it is not an unfair labor practice to cite histori-
cal facts concerning unionized employers that have gone
out of business. See, e.g., Stanadyne Automotive, supra;
Medical Computer Systems, supra. Ledbetter also ex-
pressed his opinion that the BCTGM’s strike at Hostess
Brands resulted in that company going out of business,
but he did not predict that the Union would strike South-
ern Bakeries,22 nor did he say that if it did, Southern
Bakeries would go out of business. See, e.g., Stanadyne
Automotive, supra (no unlawful threat where employer
stated that strikes at three of its other plants had resulted
in plant closure but did not make threats or predictions

21 Jt. Exh. 7 at 3–4.
22 Besides, any statement by the Respondent concerning what the
Union may choose to do would not be a prediction or threat concerning
what the Respondent may do. As explained in the text, above, state-
ments about what another party may do cannot constitute threats, since
a threat is a statement concerning what the speaker may or will do.
SOUTHERN BAKERIES, LLC 15
about the future).
Similar to the “Kick-Off Speech,” in which the Re-
spondent cited its ability to “meet or beat the competi-
tion” as the key to its survival, the Respondent gave a
“Job Security” speech indicating that employees’ job
security was impacted by “business conditions,” not by
whether employees chose to be represented by a union.
The Respondent also emphasized its “general commit-
ment to dealing with all our employees in a fair and con-
sistent manner and respecting their dignity, with or with-
out a union.” 23
In sum, the Respondent emphasized that the bakery in-
dustry is competitive, opined that unions are an impedi-
ment to efficiency, pointed to past instances where un-
ionized companies had gone out of business, and urged
employees to decertify the Union. I do not believe the
record proves that the Respondent threatened that it
would go out of business or implied that it would close
the bakery in retaliation if its employees chose to retain
union representation. For these reasons, I would dismiss
the allegations that the Respondent threatened employees
with plant closure.24
In my view, there is no merit in my colleagues’ con-
tention—in reliance on NLRB v. Gissel, 395 U.S. at
618—that Ledbetter’s statements were unlawful because
they “were not ‘carefully phrased on the basis of objec-
tive fact’ to convey his belief ‘as to demonstrably proba-
ble consequences beyond his control.’” The false prem-
ise underlying this argument is that the statement made
by Ledbetter (which, according to my colleagues, was
not “carefully phrased”) constituted a prediction that the
Hope bakery would close unless employees decertified
the Union. Here, it is important to understand precisely
what the Supreme Court stated in Gissel, supra. The
Court did not hold or suggest that all campaign-related
statements must be “carefully phrased on the basis of
objective fact” and must relate to “probable consequenc-
es beyond [an employer’s] control.” Id. To the contrary,
as described by the Supreme Court, the “carefully
phrased” requirement pertains only to a specific type of
campaign-related statement—i.e., a “prediction as to the
precise effects [the employer] believes unionization will
have on his company.” Here is the complete quotation

23 Jt. Exh. 10 at 4 (emphasis added).
24 Federated Logistics and Operations, 340 NLRB 255 (2003), rev.
denied 400 F.3d 920 (D.C. Cir. 2005), cited by the judge, is distin-
guishable. In that case, unlike here, the respondent told employees that,
if they unionized, “we would start from zero and would negotiate from
that” and that “if a strike occurred the operation could be shut down
and moved to another of the Respondent’s facilities in 3 days . . . .” Id.
at 255. In contrast, the Respondent in the present case did not make
any “bargaining from scratch” statements, nor did it suggest that it
might shut down or relocate if the Union called a strike.
from the Supreme Court’s Gissel opinion:
[A]n employer is free to communicate any of his gen-
eral views about unionism or any of his specific views
about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise
of benefit.” He may even make a prediction as to the
precise effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably proba-
ble consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization.25
Here, Ledbetter never made a “prediction” as to any
“precise effects” that Ledbetter believed “unionization
will have on his company.”26 Rather, Ledbetter merely
conveyed general views about unionization (e.g., that
unions have “strangled” companies in various industries)
and views on a particular union (that the BCTGM had
contributed to the demise of Hostess). Ledbetter made
no prediction regarding the precise effects that continued
unionization would have on the Hope bakery, and he
certainly did not either state or predict that the Hope bak-
ery would close unless employees voted to decertify the
Union. In my view, the majority erroneously imposes a
blanket “carefully worded” requirement on mere cam-
paign statements. This is unsupported by the Supreme
Court’s decision in Gissel and contrary to the protection
afforded to campaign statements under Section 8(c) of
the Act.
Finally, for similar reasons, I would reverse the
judge’s related finding that the Respondent unlawfully
threatened employees that retaining the Union as their
bargaining representative would be futile. An employer
violates the Act by conveying to employees that it would
be futile to select or retain a union when it declares that it
will not recognize the union or bargain with it in good
faith. See, e.g., Winkle Bus Co., 347 NLRB 1203, 1204
(2006) (“An unlawful threat of futility is established
when an employer states or implies that it will ensure its
nonunion status by unlawful means.”) (citing Ready Mix,
Inc., 337 NLRB 1189, 1190 (2002)); Venture Industries,
330 NLRB 1133, 1133 (2000) (manager unlawfully con-
veyed that unionization would be futile by telling em-
ployees that “as far as he was concerned the plant would
never be a union shop” during speech in which he also
threatened loss of jobs and loss of promotional opportu-
nities). The Respondent made no such statements here.

25 Gissel, supra, 395 U.S. at 618 (emphasis added).
26 Id. (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
The Respondent’s captive-audience speeches were re-
plete with statements acknowledging its legal duty to
recognize and bargain in good faith with the Union if the
employees chose to retain it. This is illustrated by the
following examples:
 “If a majority of voters decide that they want
[the Union] to continue to speak on their be-
half, you will remain represented by this un-
ion.”
 “The NLRB is a federal government agency
that makes sure all employees in the company
have the right to join or stay in a union if the
majority of them wants to and that employees
also have the right not to join or remain in a
union if at least half of them don’t want to.”
 “Please remember that if [the Union] wins
this election it would still represent you re-
garding your job, including negotiating your
wages and benefits, even if you chose not to
join the union or voted against it.”
 “The National Labor Relations Act says that
‘good faith bargaining’ requires the company
to meet with the union upon reasonable re-
quest, display an open mind, and attempt to
reach a mutually acceptable contract.”
 “[E]verything you have in the way of wages,
hours, benefits, and working conditions is al-
ways on the table during negotiations and
subject to change favorably or unfavorably
depending how the bargaining goes.”
 “I want to stress that if the union were some-
how to win the election and continue to repre-
sent you, we wouldn’t reduce wages, benefits,
or working conditions just because the union
won.”
These and similar statements reasonably convey the senti-
ment that, if employees retained the Union, the Respondent
would continue to bargain in good faith with the Union,
employees’ terms and conditions of employment could
change depending on the outcome of those good-faith nego-
tiations, and those changes could be either favorable or un-
favorable, but the Respondent would not retaliate by making
unfavorable changes “just because the [U]nion won.” I
believe these statements fairly described the process of col-
lective bargaining, and I do not believe they provide reason-
able support for a finding that the Respondent unlawfully
indicated it would be futile for employees to vote to retain
the Union in the decertification election.
I believe there is no merit in my colleagues’ finding
that the Respondent unlawfully threatened employees
that continued union representation would be futile.
Here, the majority relies on Ledbetter’s statements that
“unions are free to promise away” and “can promise em-
ployees the moon” but “could not guarantee anything,”
“the union has no power to make its promises come
true,” “all a union can do is ask and all a union can get is
what a company can voluntarily agree to give,” “don’t be
a victim of believing slick salespeople,” and “collective
bargaining can, and did, result in your getting less pay
than non-union employees.” The last of these statements
was a lawful statement of historical fact, not a threat of
futility if employees voted to retain the Union or promise
of better wages if they voted to decertify the Union.27
And especially when the remaining statements are evalu-
ated in context—recognizing that the Respondent
acknowledged its statutory obligation to bargain in good
faith and emphasized the Union’s ability to utilize the
strike weapon in support of its bargaining demands—the
Board cannot reasonably find that the Respondent assert-
ed that continued union representation would be futile or
that the Respondent would refuse to engage in good-faith
bargaining. Certainly, the statements relied upon by my
colleagues constitute “views, argument, or opinion”
aimed at persuading employees not to continue their un-
ion representation, but the Act protects such campaign-
related speech, which is not unlawful merely because
some employees might be persuaded by it. See Section
8(c), supra.28

27 See, e.g., Unifirst Corp., 346 NLRB 591, 593 (2006) (“Under ex-
tant Board law, employers may make truthful statements to employees
concerning benefits available to their represented and unrepresented
employees, may compare wages and benefits at their unionized and
non-unionized facilities, and may offer an opinion, based on such com-
parisons, that employees would be better off without a union.”) (citing
TCI Cablevision of Washington, 329 NLRB 700 (1999)); Suburban
Journals of Greater St. Louis, 343 NLRB 157 (2004); Viacom Cablevi-
sion, 267 NLRB 1141 (1983).
28 I find distinguishable the cases relied upon by the majority to sup-
port their finding that the Respondent threatened that continued union
representation would be futile. In Aqua Cool, 332 NLRB 95, 96
(2000), the employer conveyed that unionization would be futile by
informing employees that they “were unlikely to win anything more
(and possibly less) at the bargaining table than the bulk of the [compa-
ny’s] other employees.” The employer also told employees that they
“would lose all [their] benefits and [they] would have to start [negotia-
tions] from zero.” Id. at 95. Here, unlike in Aqua Cool, the Respond-
ent never told employees that the Union was unlikely to win them
anything at the bargaining table and never made any bargaining-from-
scratch comments. To the contrary, it specifically informed employees
that “wages, hours, benefits, and working conditions” could “change
favorably or unfavorably,” and it assured employees that it “wouldn’t
reduce wages, benefits, or working conditions just because the union
won.” In Smithfield Foods, 347 NLRB at 1229, the employer’s presi-
dent threatened employees that unionization would be futile by telling
them that “this plant will continue to get pay and benefits similar to
other plants, not more, not less. The [union] will not win a strike
SOUTHERN BAKERIES, LLC 17
C. Alleged Promulgation of a Rule Requiring Employees
to Report Threats and Harassment
Contrary to the majority and the judge, I believe the
Board should also dismiss the allegation that the Re-
spondent violated Section 8(a)(1) of the Act when
Ledbetter told a large group of employees on January 23,
2013: “If any of you are harassed or threatened on any
basis during this election campaign, regardless of wheth-
er you are for or against the union, we want to know
about it immediately . . . .”
The majority finds that when Ledbetter made this
statement, he promulgated a rule. Having found that the
Respondent promulgated a rule, the majority then applies
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), and finds the “rule” unlawful on two grounds:
employees would reasonably construe the “rule” to pro-
hibit them from engaging in union activities, and the
“rule” was promulgated in response to union activity.29
In my view, the primary and most fundamental error in
my colleagues’ findings is their conclusion that Ledbetter
promulgated a “rule” when he advised employees that
“we want to know” about any harassment they suffer or
threats they receive during the election campaign.
Ledbetter did not issue a generally applicable directive or
rule, and he did not threaten anyone with discipline if
they neglected to report being harassed or threatened.
Rather, Ledbetter indicated a desire to know if anyone
were threatened or harassed. In other words, no com-
mand or prohibition—no rule—was issued.
Second, even if Lutheran Heritage applies to Ledbet-
ter’s statement, I do not believe that employees would
“reasonably construe” the statement to prohibit Section 7
activity. Ledbetter asked employees to report if they
were “harassed or threatened on any basis,” and he made

against Smithfield” (emphasis added). In contrast, the Respondent here
made statements conveying that if employees retained the Union, the
Respondent would continue to bargain in good faith and that employ-
ees’ terms and conditions of employment could change favorably as
well as unfavorably depending on the outcome of those good-faith
negotiations. Finally, in Ring Can Corp., 303 NLRB 353, 353 fn. 2
(1991), the employer stated that a union would be “powerless” to pre-
vent the employer from retaliating against employees by committing
certain threatened unfair labor practices if they elected a union (i.e.,
revoking a recently granted wage increase and reducing insurance
benefits). Here, in contrast, and as explained above, the Respondent
did not threaten to retaliate against employees if they retained the Un-
ion and never claimed that the Union was powerless to prevent the
Respondent from committing unfair labor practices.
29 The judge also found that Ledbetter’s statement violated Sec.
8(a)(1) as a “mass questioning about Union activities.” Like the major-
ity, I find it unnecessary to address this alleged instance of interrogation
because the Respondent separately coercively interrogated employee
Contreras about his union sentiments, and any additional 8(a)(1) inter-
rogation findings would be merely cumulative as they would not affect
the remedy. See supra fn. 1.
it clear that it did not matter “whether you are for or
against the union.” The most reasonable interpretation of
this statement is that the Respondent was concerned
about conduct that was outside of Section 7 protection—
i.e., harassment or threats—and the Respondent’s con-
cern existed even if employees favored the union. Such
a statement cannot reasonably be regarded as interfering
with, restraining, or coercing employees in the exercise
of their Section 7 rights.30 Rather, the statement is most
fairly interpreted as an expression of opposition to such
improper conduct and in support of the free exercise of
Section 7 rights.
Third, even if Ledbetter’s statement could be deemed a
rule (which I believe would be unreasonable based on the
record before us), I disagree with my colleagues’ conclu-
sion that such a rule must be considered unlawful be-
cause it was promulgated “in response” to Section 7 ac-
tivity. The mere fact that a rule is promulgated after em-
ployees engage in NLRA-protected activity does not
necessarily establish that the rule was promulgated “in
response” to that activity.31 Especially considering the
substance of Ledbetter’s statement—which was merely
that the Company “wanted to know” if employees were
being harassed or threatened—I believe the record does
not support a finding that the statement was in response
to Section 7 activity. The more plausible conclusion is
that it pertained to potential harassment or threats that
would be unprotected by Section 7.
Finally, I disagree with the Lutheran Heritage “rea-
sonably construe” standard, for reasons I explained at
length in my separate opinion in William Beaumont Hos-
pital, 363 NLRB No. 162, slip op. at 7–24 (2016) (Mem-
ber Miscimarra, concurring in part and dissenting in
part). Thus, even if Ledbetter’s statement is regarded as
a “rule,” I believe it can be deemed unlawful only if jus-
tifications for the rule are outweighed by its adverse im-
pact on Section 7 rights.32 Applying this test, I believe

30 See Sec. 8(a)(1).
31 See Tarlton & Son, Inc., 363 NLRB No. 175, slip op. at 5–6
(2016). ) (Member Miscimarra, dissenting).
32 See also Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798
(1945) (describing the need to balance the “undisputed right of self-
organization assured to employees” and “the equally undisputed right
of employers to maintain discipline in their establishments,” rights that
“are not unlimited in the sense that they can be exercised without re-
gard to any duty which the existence of rights in others may place upon
employer or employee,” because the “[o]pportunity to organize and
proper discipline are both essential elements in a balanced society”);
NLRB v. Erie Resistor Corp., 373 U.S. 221, 229 (1963) (referring to the
“delicate task” of “weighing the interests of employees in concerted
activity against the interest of the employer in operating his business in
a particular manner and of balancing . . . the intended consequences
upon employee rights against the business ends to be served by the
employer’s conduct”); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,
33–34 (1967) (referring to the Board’s “duty to strike the proper bal-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Ledbetter’s statement cannot reasonably be deemed un-
lawful because compelling justifications support inviting
employees to notify their employer if any employee is
being “harassed or threatened on any basis.” Such mis-
conduct could be based in part on sex, race, color, or
national origin in violation of Title VII of the Civil
Rights Act of 1964, and employers are required to en-
courage reports of unlawful harassment and to promptly
investigate any such reports.33 Moreover, the Respondent
has an interest in learning of alleged harassment or
threats so it can investigate, evaluate, and determine
whether they call for remedial action or possibly the fil-
ing of charges with the Board. In contrast to these justi-
fications, I believe the potential impact of Ledbetter’s
statement on NLRA rights would be “comparatively
slight,”34 since harassment or threats would likely be
unprotected under the NLRA, and Ledbetter merely indi-
cated that Respondent “wanted to know” about any al-
leged harassment or threats. For these reasons as well, I
believe the Board cannot reasonably find that Ledbetter’s
statement constitutes an unlawful rule that violates Sec-
tion 8(a)(1) of the Act.
Conclusion
For the above reasons, I respectfully concur in part and
dissent in part.
Dated, Washington, D.C. August 4, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and obey

ance between . . . asserted business justifications and the invasion of
employee rights in light of the Act and its policy”); Southern Steamship
Co. v. NLRB, 316 U.S. 31, 47 (1942) (“[T]he Board has not been com-
missioned to effectuate the policies of the [Act] so single-mindedly that
it may wholly ignore other and equally important Congressional objec-
tives.”). Cf. First National Maintenance Corp. v. NLRB, 452 U.S. 666,
680–681 (1981) (“[T]he Act is not intended to serve either party’s
individual interest, but to foster in a neutral manner a system in which
the conflict between these interests may be resolved.”).
33 See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
34 Great Dane Trailers, supra, 388 U.S. at 34.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with discipline, job loss,
closure of the facility, or other unspecified reprisals, if
you engage in activities on behalf of the Bakery, Confec-
tionery, Tobacco and Grain Millers Union, Local 111
(the Union) or other protected concerted activities.
WE WILL NOT coercively interrogate you about your
union or other protected concerted activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT threaten you that retaining the Union as
your collective-bargaining representative would be futile.
WE WILL NOT promise you improved wages and other
unspecified benefits to discourage you from retaining the
Union as your collective-bargaining representative.
WE WILL NOT disparage the Union, while appealing to
racial prejudice, to discourage you from retaining the
Union as your collective-bargaining representative.
WE WILL NOT orally promulgate or maintain an overly
broad rule in response to union activity that instructs
employees to report harassment and threats on any basis
during the election campaign, regardless of whether they
were for or against the Union.
WE WILL NOT commence disciplinary investigations
against, issue personnel file documentations and written
warnings to, and suspend you because of your support
for and activities on behalf of the Union.
WE WILL NOT withdraw recognition from the Union
and fail and refuse to bargain with it as your exclusive
collective-bargaining representative.
WE WILL NOT unilaterally grant a wage increase to
you, without providing the Union notice and an oppor-
tunity to bargain.
WE WILL NOT unilaterally implement new rules regard-
ing the Union’s access to unit employees at the plant or
bar the Union from entering the plant, without giving the
Union notice and an opportunity to bargain.
WE WILL NOT unilaterally install surveillance cameras
in the break area, without first notifying the Union and
giving it an opportunity to bargain.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
SOUTHERN BAKERIES, LLC 19
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time production and sani-
tation employees employed by the Company at its
Hope, Arkansas plant, excluding all other employees,
including temporary and seasonal employees as defined
in the parties’ expired collective-bargaining agreement,
office clerical employees, professional employees,
guards and supervisors as defined by the Act.
WE WILL, on request by the Union, rescind the wage
increase that was implemented in September 2013, and
bargain with the Union before implementing future wage
and benefit increases for unit employees, provided, how-
ever, that nothing in the Board’s Order shall be construed
as requiring or authorizing us to cancel any unilateral
change that benefited the unit employees unless the Un-
ion requests such action.
WE WILL restore the plant access policy, including the
windowed wall that divided the break area, which was in
effect prior to March 8, 2012.
WE WILL remove the surveillance cameras that were
installed in the break area, and bargain with the Union
before installing such cameras in the break area in the
future.
WE WILL, within 14 days from the date of the Board’s
Order, rescind, in writing, the orally promulgated and
maintained rule that unlawfully instructs employees to
report harassment and threats on any basis during the
election campaign, regardless of whether they were for or
against the Union, and WE WILL, within 3 days thereafter,
notify employees in writing that this rule has been re-
scinded.
WE WILL make Lorraine Marks whole for any loss of
earnings and other benefits resulting from her suspen-
sion, less any net interim earnings, plus interest.
WE WILL compensate Lorraine Marks for the adverse
tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 15, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplinary investigations of Sandra Phillips, Lor-
raine Marks, and Vicki Loudermilk, Marks’ and
Loudermilk’s personnel file documentations, Phillips’
written warning, and Marks’ suspension, and WE WILL,
within 3 days thereafter, notify the affected employees in
writing that this has been done and that the investiga-
tions, personnel file documentations, written warning,
and suspension will not be used against them in any way.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
workers by Rickey Ledbetter (or the current executive
vice president/general manager), in the presence of a
Board agent, or by a Board agent in the presence of that
official.
SOUTHERN BAKERIES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15-CA-101311 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Linda Mohns, Zachary E. Herlands, and Caitlin E. Bergo,
Esqs., for the General Counsel.
David L. Swider and Sandra Perry, Esqs. (Bose McKinney &
Evans LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. On Febru-
ary 4 through 7, 2014, this case was heard in Hope, Arkansas.
The complaint alleged that Southern Bakeries, LLC (the Com-
pany or Respondent) violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act).1 On the entire
record,2 including my observation of the demeanor of the wit-
nesses, and after thoroughly considering the parties’ briefs, I
make the following3

1 The General Counsel withdrew complaint pars. 14 and 17 cover-
ing Earnest Beasley’s suspension and firing.
2 Transcript citations relate to the official transcript. The PDF tran-
script in NxGen, the Agency’s electronic case processing system, is
paginated differently.
3 The joint motion to correct the transcript dated March 28, 2014, is
granted, and received as Jt. Exh. 55.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
FINDINGS OF FACT4
I. JURISDICTION
The Company operates a commercial bakery in Hope, Ar-
kansas (the plant), where it annually sells goods valued at more
than $50,000 directly to points outside of Arkansas. I find that
it is an employer engaged in commerce under Section 2(2), (6),
and (7) of the Act. I also find that the Bakery, Confectionary,
Tobacco and Grain Millers Union, Local 111 (the Union) is a
labor organization under Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The plant, a continuous operation, manufactures baked
goods. In 2005, the Company purchased the plant from Mey-
er’s Bakeries, Inc. It then recognized the Union as the exclu-
sive collective-bargaining representative of the plant’s produc-
tion and sanitation workers (the unit), and adopted their collec-
tive-bargaining agreement. The parties, thereafter, memorial-
ized this relationship in several contracts, with their most recent
agreement running from February 8, 2010, to February 8, 2012
(the CBA).5 (Jt. Exh. 1). There are 200 employees in the unit.
Cesar Calderon, International union representative, serviced
the unit.6 He handled bargaining, grievances and other matters.
Alice Briggs, unit employee, is a Shop Steward. Rickey
Ledbetter is the Company’s executive vice president/general
manager, Dan Banks is the director of manufacturing, and Lin-
da Burke was the human resources manager.7
B. First Decertification Petition
On December 7, 2011, Nadine Pugh, an employee, filed an
RD-Decertification petition (the first decertification petition)
with the National Labor Relations Board (the Board), which
sought to oust the Union. (R. Exh. 4.) Although the petition
was blocked and never resulted in an election, it prompted a
flurry of union visits seeking to address the unit’s disenchant-
ment. The Company reacted by impeding the Union’s access,
and a battle ensued over such rights.
C. Plant Access Disputes Following the First
Decertification Petition
1. CBA’s access provision
Article I of the CBA provides:
Section 1.03. Union Representative. . . . . [T]he Union shall .
. . enter the production and sanitation departments [to] . . . see
. . . that the Agreement is being observed after giving . . .
twelve (12) hours actual notice . . . . The Company . . . may
accept a reduced notice period . . . . The Union . . . agrees to
limit break room visitation to a Company designated break
room area . . . .
(Jt. Exh. 2).

4 Unless otherwise explained, factual findings arise from admis-
sions, joint exhibits, stipulations, and uncontroverted testimony.
5 All dates herein are in 2012, unless otherwise stated.
6 He serviced the unit from 2011 through mid-2013.
7 Burke has since resigned and is now employed by Tyson Foods,
Inc.
2. Union access policy prior to the first
decertification petition
Calderon described the Company’s union access policy be-
fore the first decertification petition. Specifically, he testified
that union representatives freely met with the unit in the break
area, which was a large rectangular room that was divided by a
windowed wall into two smaller rooms.8 See (Jt. Exh. 44). He
added that the Company solely sought advance notice, and
never monitored visit subject matter or frequency. Sandra Phil-
lips, a unit bread packer since 1993, stated that the Union pre-
viously met with the unit in the break area, without interfer-
ence.
Ledbetter testified that union representatives were only al-
lowed to visit for grievance-handling. He stated that the CBA
supports his position, and that the Company was consistent.
Given that Calderon stated that the Union was previously
granted relatively unfettered access to the break area, while
Ledbetter testified to the contrary, I must make a credibility
determination. I credit Calderon. First, he was a straightfor-
ward witness, who answered all queries candidly and thought-
fully. Second, his testimony was corroborated by Phillips, who
was also credible and had a strong demeanor. Third, Ledbetter
appeared less than candid, sporadically argumentative, and
parsed his words when answering tougher queries. Lastly, it is
plausible that, when the parties’ relationship was less adversari-
al, the Company took a more liberal stance on Union access.
3. March 8—Ledbetter’s Letter to Calderon
On this date, Ledbetter announced to Calderon that:
Section 1.03 of the CBA limits the purpose for which you can
meet at our facility . . . the only reason for such visits . . . is
“for the purpose of seeing that the Agreement is being ob-
served.” To me, that means you can visit employees at our
facility . . . to investigate, resolve, and/or pursue potential vio-
lations of the contract . . . . This clearly does not include gen-
eral visits; visits to drum up support for the Union; . . . or to
solicit/discuss ideas for contract negotiation purposes. Typi-
cally, these types of meetings are done offsite . . . .
Please narrow your time frame . . . to accomplish the limited
appropriate purpose set out in Section 1.03 . . . or, let me
know what possible contract violation(s) could consume so
much unrestricted time.
(Jt. Exh. 44) (emphasis added).
4. March 12 to 20—Parties’ Replies Concerning Access
On March 12, Calderon responded:
Section 1.03 of the CBA does not specify that the union re-
quires a specified reason to conduct a union visit to your plant
. . . .
In past practice, union officials have had access . . . to
conduct union business for both specific reasons and gen-
eral visitations . . . .
In addition, this letter will serve to notify management that the

8 He estimated that the frequency of his annual visits ranged from 2
to 36 visits.
SOUTHERN BAKERIES, LLC 21
union will conduct . . . visit[s] . . . March 13th . . . [and] 14th .
. . .
(GC Exh. 2) (emphasis added); see also (Jt. Exh. 44). Alt-
hough Ledbetter initially denied this request, he later granted
Calderon limited access on March 20 for grievance-handling.
(Id.).
5. March 20—Calderon’s Plant Visit and the New
Cubicle Policy
Calderon testified that Banks greeted him by announcing that
he was no longer permitted to meet employees in the break
area, and escorted him to an adjacent vending machine area,
where a tiny cubicle had been set up for him.9 He stated that
Banks told him that he needed to identify whom he wanted to
see, and that he would then retrieve the workers. He added that
he explained that this new arrangement might be intimidating
for employees, who often preferred a private audience before
deciding whether to file a grievance. He recollected that the
cubicle had no table and only a single chair. He added that he
was unaware of the Union ever being relegated to a cubicle. He
stated that Banks offered that employees had complained about
him, as a rationale for his new isolation.10 He added that he
refused to enter the cubicle, and insisted that Banks permit him
to meet in the break area, in accordance with past practice. He
said that Banks then threatened to call the police, and that he
then left the plant after only a short meeting. He related that
unit employees were uncomfortable with the new arrangement
and did not want to be seen meeting with him, due to the great
hostility between the parties. He added that sitting in the break
area often generated important impromptu meetings concerning
the CBA, and that the cubicle rendered him virtually invisible.
He stated that, in the past, he lingered in the break area for sev-
eral hours at a time. David Woods, International union repre-
sentative, corroborated his testimony about the cubicle and the
past access policy.
Ledbetter admitted the new cubicle policy, and said that his
actions were triggered by complaints. He stated that the CBA
afforded him the right to relegate the Union to the cubicle.
6. March 23—Company’s Ban of Calderon
On this date, Ledbetter banned Calderon from the plant as
follows:
We have received another employee complaint concerning
inappropriate conduct by Cesar Calderon during his visits . . . .
The complaint is that Cesar has, on more than one occasion,
harassed this employee, continues to pressure the employee to

9 The cubicle was approximately 5 by 4 feet.
10 He said that he later learned that he had been accused of improper-
ly hugging Juan Rivera, which he denied. It is noteworthy that Rivera
never testified about this matter. For several reasons, I fully credit
Calderon’s denial regarding Rivera, and find the Company’s accusation
was a hoax. First, the Company failed to adduce testimony from Rivera
or any other employee, who was harassed by Calderon. Second, the
Company failed to provide any written documentation or reports, which
demonstrated such harassment. Third, as noted, Calderon was a highly
believable witness, with a stellar demeanor. Finally, I find it likely that
the Company created a hoax about Calderon, as part of its multi-
pronged strategy to oust the Union.
support union organization after being told to be left alone;
physically and mentally interfered with the employee’s meal
consumption; sent strangers to the employee’s home; and,
performed inappropriate touching . . . on March 20 . . . .
We will endeavor to investigate the allegations of harassment
. . . . In the meantime, we cannot allow Cesar Calderon to ac-
cess our property . . . .
(Jt. Exh. 44.) The Company, as noted, conspicuously failed to
present any harassed workers or offer incident reports. As ex-
plained, I credit Calderon’s denial and find that the ban was
part of a systematic attempt to impede the Union’s access be-
fore the decertification vote and that the harassment allegations
were a hoax. The Company later reinstated Calderon’s access
rights, as part of an informal Board settlement agreement cov-
ering this matter and others.11 (Jt. Exh. 4.)
D. Second Decertification Petition
On May 23, John Hankins, a unit employee, filed another
RD-Decertification petition (the second decertification petition)
with the Board seeking to oust the Union. (Jt. Exh. 45.) This
petition was blocked by further unfair labor practice charges
and an election was never held.
E. Plant Access Disputes Following the Second
Decertification Petition
1. January 7, 2013—Ledbetter’s letter to the Union
In response to the Union’s access request, Ledbetter replied:
Consistent with . . . our expired agreement and its established
practice, . . . the visit may only be “for the purpose of seeing
that the Agreement is being observed.” . . . . These limitations
will not permit your representatives to hold general solicita-
tion or election propaganda meetings . . . . If we learn that this
is the purpose . . . , we will not . . . allow your presence on our
premises. . . .
[Y]our visits will be confined to the reserved small employee
break room and you will not be permitted to . . . disturb . . .
employees in the large break room . . . .
(JT. Exh. 44.)
2. January 8, 2013—Surveillance Cameras and Break
Area Windows
Calderon, Woods and Fields, met with Ledbetter, Banks and
Burke at the plant. Calderon recalled Ledbetter affirming that
the Union could only visit for grievances. Woods corroborated
his testimony, and added that the Union also observed that sur-
veillance cameras had been placed in the break area.12 It is
undisputed that these cameras were installed without notice or

11 The Settlement Agreement stated that, “[b]y entering into this
[resolution] . . . , the Charged Party does not admit that it has violated
the National Labor Relations Act.” (Jt. Exh. 4). This settlement was
later rescinded by the Board due to the Company’s ongoing violations
of the Act. (GC Exh. 1(kk)).
12 Although surveillance cameras have historically monitored pro-
duction areas, see (R. Exhs. 8–9), the parties stipulated that such cam-
eras were first installed in the break area in November 2012. See (Jt.
Exhs. 1 and 6.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
bargaining.13 He added that he also learned that the windowed
wall that divided the break area had been dismantled, and re-
placed with plywood.
Ledbetter explained that the cameras were installed to deter
theft and averred that he was unobligated to bargain. He said
that he offered to cover the cameras, whenever the Union visit-
ed.14 See (GC Exh. 9). Regarding the break area windows, he
alleged that, in January 2013, the break area air conditioning
system failed, which required the Company to temporarily re-
move the windows for ventilation purposes. He stated that,
once the air conditioning was repaired, he installed a plywood
wall because food safety regulations required him to replace
transparent windows with opaque materials. Banks corroborat-
ed this point. But see (GC Exh. 16) (Respondent counsel’s
position letter, which mentions “food safety,” but, conspicuous-
ly fails to discuss a broken air conditioning system). It is equal-
ly noteworthy that Respondent failed to produce a work order
or documents corroborating a broken air conditioning system.
It is similarly striking that Respondent failed to cite the relevant
food safety regulations that prohibited reinstalling non-
breakable windows in the break area.
For several reasons, I do not credit Ledbetter’s contention
that he removed the break area windows because the air condi-
tioning system failed and was prevented from reinstalling un-
breakable windows by food safety regulations. First, his de-
meanor was less than credible. Second, his air conditioning
testimony was contradicted by counsel’s position letter, which
conspicuously failed to cite a broken air conditioning system.
Third, if the air conditioner had actually broken, counsel would
have corroborated this point with a work order or other docu-
mentation. Finally, the Company failed to cite the supporting
food safety regulations.
3. January 16, 2013—Ledbetter’s Letter
On this date, Ledbetter informed the Union that:
[W]e now have it . . . that the reason for this sudden onslaught
of visits has been to "campaign" and solicit support for the
upcoming decertification election. That is . . . not consistent
with . . . our expired contract . . . or our past practice . . . .
Accordingly, we can no longer permit you to access our
premises without knowing . . . the particular issue . . . you
wish to investigate. We will also need to know with whom
you would like to meet . . . . If we become aware of contin-
ued deviation . . . , we will have no choice but to prohibit your
. . . visits . . . .
(Jt. Exh. 44.) The Company, thereafter, banned visits whenever
Briggs, the Union Steward, was not scheduled to work.
4. January 21 and 22, 2013—Ledbetter’s letters
In reply to Calderon’s access request, on January 21, 2013,
Ledbetter replied that:

13 Regarding the cameras, the Employee Handbook states that,
“Southern reserves the right to use surveillance . . . equipment . . . . for
the general protection of the workforce and for the good of the Compa-
ny.” (Jt. Exh. 3.)
14 Robby Turner, info. technologist, said that the cameras do not pan
or record audio. (Jt. Exh. 8; R. Exhs. 6–7.)
The terms of our approved visits remain the same . . . .
[W]e require an explanation of the . . . . the issue(s) . . . you
wish to investigate. We also need to know who(m) you
would like to meet . . . .
I will [then] let you know if the request . . . is approved . . . .
(JT. Exh. 44).
In response to Calderon’s reminder that the Union was, inter
alia, investigating certain grievances, by letter dated January
22, 2013, Ledbetter replied as follows:
[Y]our misguided belief . . . that the union does not need our
permission to visit is simply untrue. . . . If a representative en-
ters the property after the request is denied then it is trespass-
ing on private property and subject to arrest . . . .
If your next scheduled visit is to adjust grievances, as you
have represented, the visit is granted. On the other hand, if
the visit is to electioneer, solicit union support, or for any oth-
er reason . . . your request to visit is denied . . . .
(Id.).
5. February 2013—Ongoing Access Issues
On February 7, 2013, Calderon informed Ledbetter that, “the
union will be visiting the plant . . . February 8 [at various times]
. . . .” (Jt. Exh. 44.) This request was denied. (Id.).
6. April 17, 2013—Ledbetter’s Letter
On April 17, 2013, Calderon sought to visit on April 22. (Jt.
Exh. 47.) Ledbetter denied his request. (Id.). Calderon reported
that, since that time, he has been barred from the plant.15
F. January 17, 2013—Posting
On this date, the Company posted a memo, which it labeled
as “Answers to Employee Questions Dated January 16, 2013,”
and stated as follows:
The union . . . . [has] plans to take our employees out on strike
. . . same as they . . . did at Hostess, where over 18,000 jobs
were lost and 33 bakeries . . . closed.
(Jt. Exh. 45.) This memo attributed several inaccurate state-
ments to the Union, including a racially divisive accusation that
the Union said that the Company would, “fire Hispanics” after
the election. (Id.) The Company failed to offer any proof that
the underlying employee questions, or inaccurate union cam-
paign statements, were genuine.
G. Captive Audience Meetings
In January and February 2013, Ledbetter delivered several
captive audience speeches. These speeches were presented in
English, and translated into Spanish.
1. January 23, 2013 speeches
Ledbetter delivered “kick-off” and “collective-bargaining”
talks. (Jt. Exh. 13.) Roughly 170 unit employees attended.

15 He left his union position in August 2013, and commenced em-
ployment with a different labor organization.
SOUTHERN BAKERIES, LLC 23
a. “Kick-off” speech
This segment provided, inter alia, as follows:
From an economic standpoint, we do not want a union here
because . . . it drags our Company down . . . . If we can’t beat
our competition, we can’t survive. Just look at what hap-
pened to the Hostess Bakeries, Automobile companies and
Steel companies. Unions strangled these companies to death
. . . .
There are lots of things a union can do to hurt . . . . Higher
costs, less flexibility, lower productivity, and loss of team uni-
ty can be crippling . . . and cost employees their jobs . . . .
Just look at what happened to Meyer's Bakeries and . . . at
Hostess. At Hostess, a union strike by [this Union] . . . result-
ed in the loss of over 18K jobs, the liquidation of 33 bakeries .
. . . That is one of the reasons why we do not want a union
here. Also, all of our costs related to dealing with this union
leave less money for wages and benefits . . . .
[The Union] could only hurt our chance of long-term success
and security . . . .
If any of you are harassed or threatened on any basis during
this election campaign, regardless of whether you are for or
against the union, we want to know about it immediately so
we can address the problem . . . .
[T]o remedy the problem . . . , you must bring it to our atten-
tion . . . .
(Jt. Exh. 7) (emphasis omitted).
b. “Collective-bargaining” Speech
This segment provided, inter alia, as follows:
[U]nions are free to promise . . . . they can promise . . . the
moon . . . . [T]he union has no power to make its promises
come true . . . .
[D]uring collective bargaining , all the union can do is ask and
all the union can get is what the Company will agree to give
. . . .
[T]he union is free to make any promises . . . . but . . .could
not guarantee anything . . . . Because of the rules surrounding
collective bargaining, you could have ended up with less than
the non-union employees here at Southern Bakeries, which
has turned out to be the case . . . .
Don’t be a victim of . . . slick salespeople . . . . The union can
only promise . . . .
Why is it that collective bargaining . . . result[ed] in your get-
ting less pay than non-union employees?[16] . . . .
[O]ur bottom line is thin . . . , the money . . . spent . . . dealing
with the union is money that is simply not otherwise available
. . . . [W]e have to hire expensive lawyers to help us . . . [with
the] union. Not including the administrative time and other
expenses we have had to spend . . . , which takes time away
from our efforts to maintain customers and grow . . . , we have

16 This query was repeated 10 times. (Jt. Exh. 8.)
incurred tens of thousands of dollars in legal fees that have
left us with less money . . . [for] our unionized employees
than we have been able to give to our non-union workforce
. . . .
Remember what happened to all of the Hostess employees—
2/3 were not part of BCTGM but also lost their jobs along
with the striking BCTGM union-covered employees. Over
18,000.
(Jt. Exh. 8) (emphasis omitted).

2. February 1, 2013 speeches
Ledbetter delivered “collective-bargaining,” “strikes,” and
“job security” presentations.17 (Jt. Exh. 14.) Approximately
170 unit employees attended.
a .“Strikes” speech
This segment provided, inter alia, as follows:
[A]ll a union can do is ask, and . . . get . . . what a company . .
. . agrees to . . . .
[T]he union has stated that it plans to deal with Southern Bak-
eries in the same way as Hostess with a strike and/or boycotts,
by trying to get customers to stop buying our products if we
don’t agree to union demands. If that is the case, this is of
great concern because, as you know, the BCTGM strike
closed Hostess . . . .
[S]ee if the Union will sign a warranty coupon when it prom-
ises you something. Otherwise you have no guarantee . . . on-
ly a worthless promise . . . .
[S]trikes hold a real threat of backfiring. And, when they
backfire, employees and their families . . . get hurt. Hostess’s
closure is a good example . . . .
[T]he BCTGM is union that likes to strike . . . the BCTGM
has been responsible for at least 42 strikes since the beginning
of 2000 . . . .
[E]conomic strikers . . . can also be permanently replaced.
During a strike, a company has the right to continue operating
. . . . It can . . . be done with employees of other companies
through subcontracting. When that happens, jobs are often
lost at the striking facility . . . .
Unions sometimes force employees to get involved in union
boycotts of our customers . . . . This can be devastating . . .
this makes it harder for the company to survive and can obvi-
ously lead to less jobs. . . .
The bottom line is that rather than increasing . . . , job security
can be seriously threatened by a union.
If a strike does succeed in crippling a company, the company
might not have the ability to satisfy its customers’ demands . .
. . This is how the BCTGM strike closed down the Hostess
Company. Over 18,000 jobs. . . .

17 The “collective-bargaining” segment was a redux of the January
23, 2013 speech.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Can the union help . . . ? Would strikes, boycotts, permanent
replacements, labor/management discord, and loss of profita-
bility help . . . ?
(Jt. Exh. 9) (emphasis omitted).
b. “Job Security” speech
This segment provided, inter alia, as follows:
There are many ways that a union can threaten job security
. . . .
Just because the contract is for a certain period . . . doesn’t
meant that the company has to stay open . . . .
Just remember what happened to Meyer’s Bakeries. They
had a union contract but went bankrupt and out of business.
If business conditions require, the company can . . . close its
doors tomorrow. . . .
It doesn’t do you any good to make $20 per hour under your
union contract if you don’t have a job . . . .
The union was willing to put your jobs on the line . . . . They
appear ready to . . . put your jobs at risk if they continue to
represent you after the Election. Specifically, we are hearing .
. . that the union is planning to repeat boycotts of our custom-
ers
. . . on your behalf. . . .
[V]ote NO and stop any risk of lost jobs . . . .
It makes sense that the more money a company spends on a
union, the less money it has to provide safe, steady and secure
good-paying jobs for its employees . . . .
Do you trust BCTGM, who did nothing to prevent Meyers
and Hostess and several other companies from going out of
business . . . ? . . . .
[V]ote “NO” to the . . . possible loss of job security.
(JT Exh. 10) (emphasis omitted).
3. February 5, 2013 speech
Roughly 150 unit employees attended Ledbetter’s “final
speech,” which provided:
We encourage you to vote “NO”.
We have learned that collective bargaining only gives the un-
ion the right to ask the company for . . . what the union wants.
. . .
All a union can do is ask and all a union can get is what a
company can voluntarily agree to give. . . .
[W]hen you understand the limits of collective bargaining,
you begin to realize how a union is powerless . . . .
I continue to be concerned that the money spent dealing with
the union . . . means less money that is available for wage and
benefit increases. . . .
You’re voting on whether you want to pay this union to put
all of your wages [and] benefits . . . on the bargaining table
again and risk them in a game of high stakes poker . . . .
The recent Hostess strike by BCTGM . . . put over 18k people
out of work. . . .
A company may legally transfer work and jobs to another fa-
cility or subcontract the work. Those types of decisions can
be permanent. . . .
Employees . . . may lose work and job security. . . .
[T]his company fought this union so hard because we believe
that we would all be much better off without it . . . .
[I]ncreased costs . . . may affect our job security . . . .
Unfortunately, unions too often bring high costs and inflexi-
bility to a competitive workplace environment. Time spent . .
. bargaining and . . . in . . . resolving grievances is non-
revenue generating unproductive time . . . .
[J]ob security is really the basic issue you will be voting on
. . . .
You know that job security does not come from a union . . . .
[A] union can often take away a company’s ability to survive .
. . .
[Y]our choice should be an easy one. VOTE NO! . . . .
As we are getting our head above water, the Harlans have
shared this success with us as employees. We have received
each year since our beginning in 2005, wage increases and
annual cash bonuses and continued competitive benefits.
Exceptions: As a result of collective bargaining . . . Produc-
tion and Sanitation employees did not receive a wage increase
in 2008, 2009 and 2012.
Shipping, Receiving, Maintenance and Driver employees (not
represented by a union) received pay increases every year
. . . .
The union . . . can show you only a history of plant closings,
boycotts, strikes, union dues and broken promises . . . .
(Jt. Exh. 12) (emphasis omitted); see also (Jt. Exh. 15).
H. Disciplinary Actions
1. Sandra Phillips’ written warning and related investigation
a. General Counsel’s Position
Phillips testified that, on January 31, 2013, she and cowork-
er, David Capetillo, Jr., discussed the Company’s repeated
accusation that the Union caused Hostess’ closure. She said
that Capetillo blamed the Union, while she blamed poor man-
agement. She stated that she is an open Union supporter.18 She
added that a few days later, she found an article, which sup-
ported her position, and shared it with Capetillo on the plant
floor. She stated that he did not appear upset and their ex-
change lasted a couple of minutes. See (Jt. Exh. 29). She relat-
ed that Capetillo later complained to management, a.nd she was
summoned to a meeting with Burke. On March 27, 2013, i.e., 2
months later, she received this written warning:

18 Calderon credibly testified that Phillips, a vocal union supporter,
handled grievances and related duties.
SOUTHERN BAKERIES, LLC 25
[Y]ou admitted approaching Capetillo at his work station dur-
ing . . . paid work time, removing a newspaper article . . .
[and] ask[ing him] to read the article . . . .
This behavior is a direct violation of Group B Rule 8:
Group B Rule 8: Bringing newspaper . . . into a production or
distribution area.
Management respects each individual's right to their opinion .
. . however, behavior which may create an unpleasant, threat-
ening or hostile work environment must not be allowed.
Demonstrating such acts during the paid working time of ei-
ther employee is also a violation of Company Rules . . . .
Following the Group B step process you will receive discipli-
nary action in the form of a 1st Written Warning for violation
of Group B Rule 8. . . .
You are also warned to refrain from . . . harassment of fellow
employees . . . .
(Jt. Exh. 32.)19 Phillips stated that the warning was befuddling,
given that Pugh openly disseminated the first decertification
petition in production areas, without reprisal. She added that
coworkers commonly brought newspapers onto the plant floor,
without discipline.
b. Company’s Position
Ledbetter testified that Phillips jeopardized food safety, and
that the prohibition against bringing newspapers onto the plant
floor was designed to prevent food contamination. He stated
that an auditor could have shut the plant down, on the basis of
Phillips’ actions.
2. Vicki Loudermilk’s and Lorraine Marks’ investigations and
personnel file documentations
The Company also investigated Vicki Loudermilk, whom
Capetillo accused of, “asking him how [he] . . . was going to
vote,” and Lorraine Marks, whom he accused of saying that he
would lose his job, if the Union were ousted and asking about
his vote. (Jt. Exh. 28). Marks was summoned to Burke’s of-
fice, and denied these accusations. (Jt. Exh. 30). Loudermilk,
who was also summoned to Burke’s office, claimed that
Capetillo openly volunteered how he intended to vote. (Jt. Exh.
31).
On March 27, 2013, the Company issued Personnel File
Documentations to Marks and Loudermilk. (Jt. Exhs. 34–35).
It told Marks that, although it could not resolve the credibility
dispute, it would place its investigation report in her personnel
file. (Jt. Exh. 34). It told Loudermilk that, while she violated
workplace rules by interfering with a coworker, it would limit
its response to placing its investigation report in her personnel
file. (Jt. Exh. 35).
3. Marks’ suspension
a. General Counsel’s position
Marks testified that she regularly met with union representa-
tives at the plant, attended union meetings and filed grievanc-

19 The Facility Rules provide a written warning for a first infraction
of a Group B Rule. (Jt. Exhs. 32–33.)
es.20 (GC Exh. 5.) She stated that, on May 24, 2013, she had
an unexpected and dire need for a restroom break, but, could
not find a supervisor or team leader to notify. She added her
regularly assigned team leader was on leave, and that the re-
placement team leader was on a break, when her emergency
arose. She stated that, consequently, she left the production
line for a short period without advising supervision. She stated
that she told Phillips, her coworker, before she left, who cov-
ered her 5-minute absence. She added that she has previously
taken the same actions under comparable circumstances, with-
out issue. She related that, upon her return, she encountered
Banks, who inquired about her whereabouts. She averred that
she was then summoned to Burke’s office, who issued her a
suspension pending investigation for leaving her work area,
without permission.21 (Jt. Exh. 48). She indicated that she has
subsequently seen others taking comparable breaks, without
issue.
Phillips stated that Marks was absent for less than 5 minutes,
after first unsuccessfully searching for supervision. She stated
that she filled in for her and production was unharmed. She
stated that coworkers regularly left the line to use the restroom,
without issue. She estimated that she personally covered for
such coworkers at least once per month. She added that, while
supervisors were generally available, there were substantial
periods when they were not.22
Briggs, another unit employee, testified that she told Banks
that she “saw three people walking . . . to the bathroom without
permission” and that he coyly replied that, “they weren’t inves-
tigating them.”23 (Tr. 422.) She stated that Marks was treated
unfairly.
Calderon testified that Marks was an active union member,
who pursued a key grievance involving temporary workers in
2012, which resulted in 15 workers receiving backpay. He
stated that she campaigned for the Union, which included dis-
tributing literature and telephoning employees. He noted that
she encouraged new employees to become union members. He
said that her suspension was the first discipline of its kind in-
volving a bathroom break.
b. Final written warning and suspension
On May 30, 2013, Marks received the following Final Writ-
ten Warning:
You were suspended May 24, 2013 pending investigation of
Immediate Termination Rules, Group A Rule(s) 3 and 22.
Rule 3: Using Company time. . . for personal use unrelated to
employment . . . without proper authorization. This includes
leaving Company property during paid breaks or leaving
your assigned work area without permission.
Rule 22: Job abandonment, including . . . leaving an assigned

20 She stated that, about 3 years earlier, she picketed on behalf of the
Union concerning contract negotiations.
21 She was then suspended from work without pay from March 24
through 31.
22 She estimated that a supervisor was available for coverage about
90 percent of the time.
23 She stated that she was later asked to reveal these employees to
Burke, and refused.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
work area without permission—i.e. walking off the job.
Conclusion:
During our investigation you indicated that you did not obtain
permission to leave your work area . . . . .
 Department Supervisor Ray Golston informed me
that he was in the department . . . .
 On your way to the restroom you walked past [Dan
Banks] . . . .
Management has considered all mitigating circumstances
concluding that discharge is appropriate, but recognizes your
long term service. You may return to work without back pay .
. . subject to a Final Written Warning.
(Jt. Exh. 49.)
c. Company’s position
Ledbetter testified that, although abandoning the production
line is a terminable offense, Marks’ lengthy service record war-
ranted lesser discipline. He explained that the bakery is a con-
tinuous operation, and that her actions could have interrupted
operations. He stated that her actions violated work rules and
that she had been given notice of such rules.24 He indicated
that the Company has a paging system and it is unacceptable to
solely seek a coworker’s coverage. He related that Marks was
placed on suspension pending investigation and allowed to
return to work after 6 days without pay. He denied that others
left the line without consent.
Banks testified that Marks works on a fast-paced line. He
stated that unscheduled breaks must be reported, and employees
can always page supervision on the intercom. He stated that,
on May 24, Marks walked right by him, without speaking to
him about her issue. Golston, Marks’ supervisor, testified that
he was only 20 feet from her and that she could have sought his
aid. He agreed that she previously sought, and received, per-
mission to leave for restroom breaks.
d. Credibility resolutions
Although it is undisputed that Marks had substantial and
open union activity, left the line for less than 5 minutes for an
emergency break, her absence was covered by Phillips, produc-
tion was unaffected, she previously asked for and received
restroom breaks and that the normal team leader was absent,
there is a credibility dispute over whether supervisor Golston
was present. I credit Marks’ testimony on this point. First, she
was a very believable witness with a solid demeanor. She had a
good recollection and was unflustered by the courtroom. Se-
cond, her testimony was corroborated by Phillips and Briggs,
who stated that Golston was not present. Lastly, it is implausi-
ble that Marks, who has previously asked Golston for permis-
sion to take restroom breaks, would have neglected to ask him

24 See (Jt. Exh. 5 (“Employees must not . . . be out of their assigned
work area without permission . . . . Doing so is a Group A violation . .
. . .” )); (Jt. Exh. 16)(“[When an] urgent . . . situation occurs, and you
need to leave your assigned job . . . between scheduled breaks . . . . [,]
quickly locate your supervisor . . . for permission. . . . Walking off the
job without permission is a Group A rule violation which results in
immediate discharge.”)).
for permission on this occasion, if he were actually there.
I also credit Marks’, Phillips’, and Briggs’ claims that bath-
room breaks are commonplace and accepted. I credit them for
the reasons previously discussed, but, also on the basis of the
Company’s conspicuous failure to show that anyone else has
been disciplined for this type of offense. It is also plausible
that, if the Company policed this work rule as diligently as
suggested, it would possess several similar disciplinary records.
e. Other Discipline for Leaving the Production Line
The General Counsel provided some disciplinary records in-
volving employees leaving the production line for extended
periods, which demonstrate the Company meting out far less
severe discipline under vastly more egregious circumstances.
The following chart is illustrative:
Date Employee Summary
10/17/12 C. Booker Without permission, he went
home mid-shift. He returned in
2 days, said that he was frustrat-
ed and was reinstated under a
last chance agreement, without
loss of pay.
3/17/12 Brandon
Moses
Without permission, he left the
production area for a reported
restroom break and went home.
He was reinstated , with only a
final written warning.
(GC Exhs. 11–12.)
4. Christopher Contreras’ interview and termination
a. January interview
Contreras, a unit worker, was interviewed by Burke and
Banks. He recalled Burke stating that:
There was a Union . . . and that if anybody tries to ask you to
talk about the Union, then just ignore it . . . because they’re . .
. trying to get rid of the Union . . . if you want to get paid
more . . . then ignore everybody who’s in the Union.
(Tr. 437.) Both Banks and Burke denied this exchange.
I credit Contreras; he was credible, possessed a straightfor-
ward demeanor and had a strong recall. Also, this commentary
was consistent with the Company’s antiunion campaign.
b. Tenure
I. GENERAL COUNSEL’S POSITION
Contreras began on January 26. He was supervised by Ken-
ny White, who initially granted him leave to see his probation-
ary officer,25 but, then rejected his later requests in November
and December. He stated that he joined the Union in late-
August.26 See (GC Exh. 8). He said that, in November, he
observed Hankins and supervisor White walking around the
plant and soliciting employees to sign a petition seeking to oust
the Union. He said that they told him to sign the petition, if he
wanted more money. (Tr. 449.) He added that White told him

25 He was convicted of theft and receiving stolen property.
26 Calderon testified that he attended union meetings.
SOUTHERN BAKERIES, LLC 27
that, “if they did not get the Union out, then this facility would
go down like Hostess.” (Tr. 450.) He said that he declined,
and that 2 weeks later White asked why he wanted to pay $40
per month in union dues and prompt a plant closure. He said
that White later told him that he had the upper hand and could
remove him if desired, which he linked to his union support.
He related that he was fired on April 16, 2013. He explained
that a warrant had been issued for his arrest because he missed
multiple probation meetings. He said that he was stopped for
an unrelated matter, arrested for probation revocation, and held
for 3 days. He contended that the jail telephone did not permit
him to dial extension numbers, which precluded him from noti-
fying the Company. He stated that he later met Burke, who
told him that he had been fired for a “no call, no show” viola-
tion and nothing could be done. See (Jt. Exh. 41).
II. COMPANY’S POSITION
Contreras was granted 7 excused absences between April
2012 and February 2013. (R. Exh. 3.) Not including the ab-
sence that led to his firing, he sustained four additional unex-
cused absences, and received a second written warning and a 1-
day suspension for these transgressions. (R. Exh. 3; Jt. Exhs.
38–40.) In total, he was absent a 12 times during his roughly 1
year tenure.
Ledbetter testified that regular attendance is mandatory and
Contreras’ firing was warranted. The Company’s rules ex-
pressly provide that incarceration is not a valid excuse for an
absence. He stated that “no-call, no-show” employees are gen-
erally fired. He stated that Contreras’ union activities were
unknown, and played no role in his removal. The Company’s
personnel records demonstrated that it routinely fired employ-
ees for “no-call, no-show” offenses, and other attendance prob-
lems. See (R. Exhs. 10–11).
Banks testified that Contreras was fired for missing work
without notice. He added that he reached the maximum allow-
able points under the attendance system and could have also
been fired on that basis. He indicated that absences connected
to incarceration are unexcused.
White testified that absentees must call in an hour before
their scheduled start time. He agreed that Contreras requested
leave to visit his probation officer, and that he approved some
requests. He indicated that Contreras had repeated attendance
issues. He denied knowing about his union activities, or mak-
ing the antiunion comments.
III. CREDIBILITY RESOLUTION
Although Contreras did not dispute his attendance record or
that he was “no-call, no-show,” there was a credibility dispute
over White’s plant closure comments and threats. I credit Con-
treras. First, as noted, he was a generally credible witness, who
was candid about sensitive issues, including his poor attendance
and criminal record. Second, I found White to be a less than
credible witness, who seemed more committed to pleasing su-
pervision than offering a candid account. Finally, I note that
White’s plant closure and other threats were highly consistent
with the Company’s election mantra and that he was likely
repeating this theme.
I. APRIL 2013 INTERVIEW COMMENTS
Jeremy Woods, who was employed from about April to July
2013 as a muffin mixer, testified that he was interviewed by
Burke and Banks. He recalled them stating that there was an
impending union decertification vote, and that, “they could
offer him better wages than the Union could and . . . the Union
was responsible for shutting down Hostess Bakeries.” (Tr.
215.)
Banks denied such commentary, but, did not have any spe-
cific recollection of the interview. Burke similarly denied these
comments.
I credit Woods. He had a strong recollection. Burke and
Banks, on the other hand, had a poor recall of the meeting, and
their comments were deeply consistent with the Company’s
antiunion mantra.
J. Withdrawal of Union Recognition
On June 13, 2013,27 Hankins submitted a petition to the
Company (the third decertification petition), which was signed
by a majority of unit employees,28 and stated:
PETITION TO REMOVE UNION AS REPRESENTATIVE
The undersigned employees of Southern Bakeries do not want
to be represented by Bakery, Confectionary, Tobacco Work-
ers and Grain Millers (“BCTGM”) union. We hereby request
that our employer immediately withdraw recognition from the
BCTGM union, as it does not enjoy the support of a majority
of employees in the bargaining unit.
(Jt. Exh. 46.) Burke stated that she verified the authenticity of
the signatures.
Hankins, a production coordinator/scheduler,29 testified that
he has been employed for 3 years. He claimed that he became
disenchanted with the Union because the unit had not received
a raise for several years. He stated that, after the earlier decerti-
fication drives failed, he prepared the third decertification peti-
tion, after consulting with the National Right to Work Founda-
tion. He stated that he received no aid from management in its
dissemination. He denied promising anything, in exchange for
signatures. Israel Amidares helped him disseminate the petition
amongst Spanish-speaking workers.
K. July 3, 2013—Withdrawal of Recognition
On this date, Ledbetter sent the following letter to the Union:
On Friday, June 14, 2013; we received a petition filed by the
vast majority of our bargaining unit employees requesting that
we withdraw recognition of the BGTGM union . . . . We . . .
have no reason to believe that any of the signatures are not le-
gitimate.

27 The third decertification petition was signed between May 31 and
June 12, 2013.
28 Approximately 2/3 of the unit signed the third petition. See (Jt.
Exh. 46; R. Exh. 13; tr. 575).
29 Lewis testified that this position is not in the unit, although there is
no evidence that it is supervisory. Lewis was, however, uncertain if the
position was newly created, or akin to a unit team leader. Ledbetter
stated that Hankins was, at all times, a unit team leader, who was mis-
taken about his exact job title.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Accordingly, . . . we hereby withdraw recognition of your un-
ion . . . .
(Jt. Exh. 51.) The Company subsequently ceased deducting
and remitting union dues.
L. July 22, 2013—Union Rejects Withdrawal
of Recognition
On this date, the Union rejected the withdrawal of recogni-
tion and requested plant access. (Jt. Exh. 53.) The Company
denied their access request. (Jt. Exh. 54.)
M. September 29, 2013—Unilateral Wage Increase
On this date, the Company unilaterally increased the unit’s
wages by an average of 27 cents per hour. (Jt. Exh. 1.) The
increase was implemented without notice or bargaining. (Id.)
III ANALYSIS
A. The 8(a)(1) Allegations
The General Counsel, in some cases, has alleged cumulative
8(a)(1) violations of the same strain (e.g. multiple plant closure
threats). In such cases, where merit was found and the remedy
was unaltered by finding cumulative violations, only a few
illustrative examples were analyzed. See, e.g., Smithfield
Foods, Inc., 347 NLRB 1225, 1228–1229 (2006).
1. Interrogations30
The Company violated Section 8(a)(1), when it interrogated
employees about their union activities. Two examples are
demonstrative: in September, White asked Contreras why he
became a dues-paying union member; and on January 23, 2013,
Ledbetter told employees that: “If any of you are harassed or
threatened on any basis during this election campaign, regard-
less of whether you are for or against the union, we want to
know about it immediately . . . .”
In Westwood Healthcare Center, 330 NLRB 935 (2000), the
Board held that the following factors determine whether an
interrogation is unlawful:
(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss’ office? Was there an
atmosphere of unnatural formality?
(5) Truthfulness of the reply.
Id. at 939. In applying these factors, however, the Board con-
cluded that:
In the final analysis, our task is to determine whether under all
the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he

30 These allegations are listed under pars. 6(a), 9 (f), 10(a), 11(f) and
(h), 12 and 39 of the complaint.
or she would feel restrained from exercising rights protected
by Section 7 of the Act.
Id. at page 940.
White’s comments were an unlawful interrogation; he was
Contreras’ direct supervisor, he plainly sought information
about his union activities, and this interrogation was, as will be
discussed, accompanied by an unlawful plant closure threat.
Ledbetter’s commentary was another interrogation. He is the
Company’s highest ranking plant official and his comments
equated to a mass questioning about union activities, with a
charge to report such interactions. His comments were also, as
will be discussed, accompanied by other unlawful statements.
2. Discharge and job loss threats31
The Company violated Section 8(a)(1), when it repeatedly
threatened job loss. Two examples are demonstrative: in Sep-
tember, White, concerning Contreras’ refusal to sign a decerti-
fication petition, told him that he had the “upper hand” and
could get rid of him whenever desired; and on February 1,
2013, Ledbetter repeatedly told employees that unionization
would lead to strikes, which could backfire, and damage fami-
lies and job security.
A statement is an unlawful threat, when it coerces employees
in the exercise of their Section 7 rights. 29 U.S.C. § 158(a). In
evaluating such statements, the Board:
[D]oes not consider subjective reactions, but rather whether,
under all the circumstances, a respondent’s remarks reasona-
bly tended to restrain, coerce, or interfere with employees’
rights guaranteed under the Act.
Sage Dining Service, 312 NLRB 845, 846 (1993); Double D
Construction Group, 339 NLRB 303 (2003) (“test of whether a
statement is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable
construction.”).
Both Ledbetter’s and White’s comments threatened job loss,
and, as a result, reasonably tended to restrain, coerce, or inter-
fere with employees’ rights guaranteed under the Act. Moreo-
ver, the Company failed to demonstrate that Ledbetter’s job
loss predictions were reasonably based upon objective facts.
2. Plant closure threats32
The Company repeatedly threatened plant closure. Ledbetter
continuously told employees at captive audience meetings, that
retaining the Union would threaten job security, prompt a clo-
sure and cripple the business. He added that the Union would
kill the Company, in the same way that it toppled Meyers Bak-
eries and Hostess. White told Contreras that the Union would
cause a Hostess-like closure. An employer violates Section
8(a)(1), when it engages in conduct that might reasonably tend
to interfere with employees’ Section 7 rights, which includes
plant closure threats, in retaliation for engaging in union activi-
ty. Mid-South Drywall Co., Inc., 339 NLRB 480 (2003). Un-
substantiated predictions that a plant shutdown will result from

31 These allegations are listed under pars. 6(b), 9(a), 11(a) and 39 of
the complaint.
32 These allegations are listed under pars. 8(a), 9(b), 10(b), 11(b),
13(b) and 39 of the complaint.
SOUTHERN BAKERIES, LLC 29
a union victory are unlawfully coercive. Federated Logistics &
Operations., 340 NLRB 255, 256 (2003), petition for review
denied 400 F.3d 920 (D.C. Cir 2005).33 The above-described
comments were, accordingly, unlawful.
4. Surveillance34
The General Counsel failed to show that the Company en-
gaged in surveillance at the January 23 and February 1, 2013
meetings, as alleged in the complaint. The General Counsel
failed to adduce evidence of surveillance, brief the matter, or
explain its theory. These allegations are, thus, dismissed.
5. Impression of surveillance35
The Company created an unlawful impression on surveil-
lance, when it installed cameras in the break area. An employ-
er creates an unlawful impression of surveillance, if reasonable
employees would assume that their union activities are being
monitored. Stevens Creek Chrysler, 353 NLRB 1294, 1295–
1296 (2009). Given that the break area was the hub, where
union agents conducted their business, the installation of cam-
eras during a decertification campaign reasonably caused em-
ployees to assume that their union discussions and activities in
this hub were being monitored.
6. Futility of bargaining and unionizing36
The Company violated Section 8(a)(1), when Ledbetter re-
peatedly conveyed that unionization was futile. Specifically, he
repeated, at captive-audience meetings, that “unions are free to
promise away”; “they can promise employees the moon”; “the
union has no power to make its promises come true”; “all the
union can do is ask and all the union can get is what the Com-
pany will agree to give”; “the union is free to make any prom-
ises . . . . but . . . could not guarantee anything”; “don’t be a
victim of believing slick salespeople”; and “collective bargain-
ing can, and did, result in your getting less pay than non-union
employees.”
The Board has held that, barring outright threats to refuse to
bargain in good faith with an incoming union, the legality of
any particular statement depends upon its context. See, e.g.,
Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994).
Statements made in a coercive context are unlawful because
they, “leave employees with the impression that what they may
ultimately receive depends upon what the union can induce the
employer to restore.” Earthgrains Co., 336 NLRB 1119, 1119–
1120 (2001), enfd. sub nom. Sara lee Bakery Group, Inc. v.
NLRB, 61 Fed.Appx. 1 (4th Cir. 2003); see, e.g., Smithfield

33 Although a prediction of plant closure may be lawful, if the em-
ployer can show that it is the probable consequence of unionization for
reasons beyond its control, see NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969), there was no evidence presented, which shows that the
Company’s repeated comparisons to Hostess Brands and Meyers Bak-
eries and their shutdowns were rational predictions based on probable
consequences beyond its control. These statements were, thus, unsup-
ported predictions designed to intimidate employees.
34 These allegations are listed under pars. 9(f), 11(f) and 39 of the
complaint.
35 These allegations are listed under pars. 7 and 39 of the complaint.
36 These allegations are listed under pars. 9(e), 11(e) and 39 of the
complaint.
Foods, 347 NLRB 1225, 1230 (2006) (statement from highest
official that company was in complete control of future negotia-
tions was unlawful), petition for review denied sub nom. Food
& Commercial Workers Local 204 v. NLRB, 506 F.3d 1078
(D.C. 2007)); Aqua Cool, 332 NLRB 95, 95 (2000) (statement
that employees were unlikely to win anything more at the bar-
gaining table than other employees). Ledbetter’s comments
unlawfully conveyed that ongoing unionization was futile.
7. Promising benefits37
The Company violated Section 8(a)(1), when it continuously
promised to reward employees with higher wages, if they re-
jected the Union. Ledbetter repeatedly advised the unit that
their non-Union colleagues were paid more and received wage
increases while theirs stagnated, and identified the Union as the
cause. Specifically, in early 2013, he made these statements:
“[a]ll of our costs related to dealing with this union leave less
money for wages and benefits”; “[w]hy is it that collective
bargaining can, and did, result in your getting less pay than
non-union employees?”; “[m]oney . . . spent on bargaining and
grievances and otherwise dealing with the union is money that
is simply not otherwise available to our employees”; and “we
have incurred tens of thousands of dollars in legal fees that
have left us with less money to put into the pockets of our un-
ionized employees than we have been able to give to our non-
union workforce.” (Jt. Exhs. 7–8). Banks and Burke mimicked
this theme, when they told Woods that a Union decertification
vote was approaching and “they could offer . . . better wages
than the Union.”
An employer violates the Act, when it promises to reward
employees, in order to curtail unionization. See Curwood, Inc.,
339 NLRB 1137, 1147 (2003), enfd.in relevant part 397F.3d
548 (7th Cir. 2005). The danger inherent in a well-timed prom-
ise to bestow a benefit is the implication that employees must
disavow their union support, in order to obtain the benefit.
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The
obvious message behind the above-described unlawful state-
ments was that, if unit employees wanted a raise, they first
needed to jettison the Union.
8. Threats of Unspecified Reprisals38
The Company violated Section 8(a)(1), when it threatened
employees with unspecified reprisals. Ledbetter made this
statement in January 2013:
If any of you are harassed or threatened on any basis during
this election campaign, regardless of whether you are for or
against the union, we want to know about it immediately so
we can address the problem . . . .
(Jt. Exh. 7.) The Board has held that such invitations are un-
lawful. See, e.g., Ryder Transportation Services, 341 NLRB
761, 761–762 (2004), enfd. sub nom. Ryder Truck Rental v.
NLRB 401 F.3d 815 (7th Cir. 2005) (“the Act allows employees
to engage in persistent union solicitation even when it annoys

37 These allegations are listed under pars. 9(c)-(d), 11(c)-(d), 13(a)
and 39 of the complaint.
38 These allegations are listed under pars. 9(g)-(i), 11(g)-(i) and 39 of
the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
or disturbs the employees who are being solicited . . . . [and] an
employer's invitation to employees to report instances of “har-
assment” by employees engaged in union activity is violative of
Section 8(a)(1).”).39
9. Disparagement of the Union40
The Company violated Section 8(a)(1), when it repeatedly
disparaged the Union in its January 17, 2013 memorandum.
(Jt. Exh. 25.) This memo repeatedly labeled the Union’s al-
leged campaign statements as fraudulent, in tandem with ad-
vancing an unlawful plant closure threat41 and appeal to racial
prejudice.42 See, e.g., Sears, Roebuck & Co., 305 NLRB 193
(1991) (disparagement of a union becomes unlawful, when
accompanied by other coercive statements); Tony Silva Paint-
ing Co., 322 NLRB 989, 993 fn. 5 (1996).43
B. The 8(a)(3) Allegations44
The General Counsel alleged that the Company violated Sec-
tion 8(a)(3) when it: placed Loudermilk, Phillips, and Marks
under investigation and issued Personnel File Documentations;
issued Marks a warning; suspended Phillips; fired Contreras
and refused to grant him time off; and granted a wage increase
to the unit following its withdrawal of recognition.45
1. General legal principles
The framework described in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982) sets forth the appropriate standard:
Under that test, the General Counsel must prove by a prepon-
derance of the evidence that union animus was a substantial or
motivating factor in the adverse employment action. The el-

39 See also Hawkins-Hawkins Co., 289 NLRB 1423 (1988) (“if any-
one was harassed by the Union . . . contact management and they would
take care of it”); W. F. Hall Printing Co., 250 NLRB 803, 804 (1980).
40 These allegations are listed under pars. 8(b) and 39 of the com-
plaint.
41 The memo stated that, “the union appears to have plans to take our
employees out on strike here in Hope, same as they recently did at
Hostess, where over 18,000 jobs were lost and 33 bakeries and retail
outlets were closed.” (Jt. Exh. 25.) The Company failed to produce
any evidence showing that the Union actually had concrete strike plans,
or that its closure prediction was a probable consequence of the strike
for reasons beyond its control. Such commentary was, therefore, un-
lawful. See Federated Logistics & Operations., supra, 340 NLRB at
256.
42 The memo attributed this racist statement to the Union: “[the Un-
ion said that the Company is] “gonna fire Hispanics (Latino employees)
if they change their names.” (Jt. Exh. 25). Given that the Company
failed to show that the Union actually made this divisive statement, its
usage of racial baiting to further its election interests was unlawful. See
Holiday Inn of Chicago South, 209 NLRB 11 (1974) (election appeal to
racial prejudice is unlawful).
43 The repeated nature of the instant disparagement also, arguably,
violated the Act. See Regency House of Wallingford, Inc., 356 NLRB
563 (2011) (repeated denigration implies that unionization is futile).
44 These allegations are listed under pars. 15, 16, 18, 19, 20, 21, 22,
36 and 40 of the complaint.
45 Given that that the increase independently violated Section
8(a)(5), it is unnecessary to pass on whether it also violated Section
8(a)(3) because the ultimate remedy would be unaltered. Bryant &
Stratton Business Institute, 321 NLRB 1007 fn. 4 (1996).
ements commonly required to support such a showing are un-
ion or protected concerted activity by the employee, employer
knowledge of that activity, and union animus on the part of
the employer.
If the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of the employee's union activity. To establish this af-
firmative defense, “[a]n employer cannot simply present a le-
gitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.”
Consolidated Bus Transit, 350 NLRB 1064, 1065–1066 (2007),
enfd. 577 F.3d 467 (2d Cir. 2009) (citations omitted).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for its actions are either false or not
relied upon, it fails by definition to show that it would have
taken the same action for those reasons, and there is no need to
perform the second part of the Wright Line analysis. However,
further analysis is required if the defense is one of “dual moti-
vation,” that is, the employer defends that, even if an invalid
reason might have played some part in its motivation, it would
have taken the same action against the employee for permissi-
ble reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
2. Loudermilk Investigation and Personnel File Documentation
a. Prima facie case
The General Counsel made a prima facie Wright Line show-
ing concerning Loudermilk’s investigation and Personnel File
Documentation. Union activity was established, when
Loudermilk told Capetillo, who was antiunion, that she sup-
ported the Union, and opined that it should not be blamed for
the Hostess closure. (Jt. Exh. 31.) Knowledge was adduced,
when Loudermilk prepared a written statement for the Compa-
ny about this exchange. Union animus was demonstrated by
the multitude of violations present herein.
b. Affirmative defense
The Company failed to show that it would have taken these
actions, absent Loudermilk’s union activity. First, the decision
to expend resources interviewing her, investigating uncontested
conduct for a full 2 months, and preparing a lengthy memo and
analysis is highly suspect, given that she only asked someone
about his vote. (Jt. Exh. 28.) The decision to respond so dra-
matically to such a minor and lawful interaction reeks of invid-
ious intent. Moreover, given that there is no evidence that the
Company limited other workplace comments beyond pro-union
banter, or investigated Capetillo for his comparable activity, its
actions were discriminatory. Finally, the multitude of addition-
al violations present herein further establish that Loudermilk’s
treatment was unlawful.
3. Marks Investigation, Personnel File Documentation
and Suspension
a. Prima facie case
The General Counsel has made a prima facie Wright Line
SOUTHERN BAKERIES, LLC 31
showing concerning Marks’ investigation, Personnel File Doc-
umentation and suspension. Calderon testified that she had
significant union activity, which included meeting with union
representatives in the break area, attending union meetings and
handling grievances. The Company knew about these activi-
ties, on the basis of her grievance-handling, and Capetillo’s
complaints. See (Jt. Exh. 28). As noted, animus was demon-
strated by the multitude of violations present herein.
b. Affirmative defense
The Company failed to show that it would have taken these
actions, absent Marks’ union activity. First, regarding the in-
vestigation and documentation, it is implausible that the Com-
pany would have conducted a multiple-month investigation and
drafted a lengthy memo regarding such a minor verbal ex-
change, absent an antiunion motive. Moreover, if the Company
investigated every minor infraction with the same fervor, it
would hardly have time to fulfill its primary purpose. Second,
regarding Marks’ suspension, its rationale was pretextual.
Simply put, it opted to suspend a long-term employee because
she needed to use the bathroom and returned in five minutes,
when it is undisputed that: she found coverage; there was no
team leader or supervisor present for immediate short-term
relief; and production was unaffected. The Company failed to
show that others were disciplined for similar conduct and only
provided documentation that others were disciplined less se-
verely for more egregious abandonments. I credited the testi-
mony, as noted, that others routinely left the line for short re-
stroom breaks, without issue and with supervisory knowledge.
4. Phillips investigation, personnel file documentation and
written warning
a. Prima facie case
The General Counsel has made a prima facie Wright Line
showing concerning Phillips’ investigation, Personnel File
Documentation and written warning. Union activity was ad-
duced, when she urged Capetillo to support the Union and of-
fered him a prounion article. (Jt. Exh. 31). Knowledge was
derived by the Company’s investigation of this issue. As noted,
animus was demonstrated by the multitude of violations present
herein.
b. Affirmative defense
The Company failed to show that it would have taken these
actions, absent Phillips’ union activity. Its decision to investi-
gate her, reflect upon her case for multiple months, prepare a
lengthy memo analyzing her actions, and then issue a warning
stating that termination was strongly considered, to someone
who solely handed a coworker an article, renders its actions
highly suspect. It provided no evidence that: she was a recidi-
vist rule violator that jeopardized food safety; handled similar
cases comparably; or production was harmed. Additionally, the
extensive additional violations present herein irreparably un-
dercut any assertion that its actions were non-discriminatory.
5. Contreras failure to grant leave and discharge
Contreras’ firing and leave refusal were lawful. Although the
General Counsel established a prima facie case, the Company
adduced that it would have undertaken such actions, absent his
union activity.
a. Prima facie case
The General Counsel made a prima facie Wright Line show-
ing. Contreras engaged in union activity, when he joined the
Union and rejected White’s invitation to sign an antiunion peti-
tion. Knowledge and animus were established by White’s anti-
union comments.
b. Affirmative defense
The Company demonstrated that it would have denied his
leave request and fired him, absent his union activity. Simply
put, he had a horrendous attendance record and the Company
reached the point, where it rationally determined that it would
no longer grant him leave or retain his services. His “no-call,
no-show” connected to his arrest was the final straw in this
process. The Company’s actions were consistent with its
workplace rules and repeated terminations of other employees,
with severe attendance issues, and, thus, were lawful.
C. The 8(a)(5) Allegations
1. Prewithdrawal of recognition unilateral changes
a. Surveillance cameras46
The Company’s installation of surveillance cameras in the
break room violated Section 8(a)(5). The installation of such
cameras is a mandatory subject of bargaining, which requires
pre-implementation notice and bargaining. See, e.g., Anheuser-
Busch, 342 NLRB 560 (2004), petition for review denied in
relevant part sub nom. Brewers & Maltsters Local 6 v. NLRB,
414 F.3d 36 (D.C. Cir. 2005); Colgate-Palmolive Co., 323
NLRB 515 (1997); Nortech, 336 NLRB 554, 568 (2001). It is
undisputed that the Company took unilateral action, without
notice or bargaining. The existence of analogous cameras in
production areas, where there was limited union activity, was
not a clear and unmistakable waiver of the Union’s right to
bargain over the installation of such cameras in the break area,
where there was repetitive union activity. The CBA also failed
to contain a clear and unmistakable waiver of the Union’s right
to bargain over this topic. These actions, therefore, violated
Section 8(a)(5).
b. Union access47
The Company violated Section 8(a)(5), when Ledbetter re-
peatedly altered the Union’s access rights. These changes,
which greatly deviated from the Company’s past access prac-
tices, included, inter alia: requiring the Union to divulge its
reasons for visiting the plant; mandating it to identify the em-
ployees that it sought to meet with; banning all visits not in-
volving grievances; prohibiting solicitation and election discus-
sions; capping the duration and frequency of visits; prohibiting
meetings in the large break area and then relegating the Union
to a cubicle; threatening to respond to violations with expul-
sion, arrest and total exclusion; prohibiting all access between

46 These allegations are listed under pars. 24, 37, and 41 of the com-
plaint.
47 These allegations are listed under pars. 25, 26, 27, 28, 29, 30, 31,
32, 33, 37, and 41 of the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
March and November 2012, and at other times thereafter; and
removing the window between the small and large break rooms
that the Union used to communicate with unit employees. It is
undisputed that these changes were imposed, without notice or
bargaining.48
A contractual union access provision is a term and condition
of employment that survives the agreement's expiration. More-
over, changes to contractual access provisions or past access
practices are mandatory subject of bargaining, which require
notice and bargaining before enacting such changes. Turtle Bay
Resorts, 353 NLRB 1242, 1275 (2009); T.L.C. St. Petersburg,
307 NLRB 605, 610 (1992); Ernst Home Centers, 308 NLRB
848–49 (1992), affd. 985 F.2D 579 (11th Cir. 1993).
The Company’s voluminous unilateral changes to the Un-
ion’s access rights violated Section 8(a)(5). See, e.g., BASF
Wyandotte Corp., 274 NLRB 978 (1985) , enfd. 798 F.2d 849
(5th Cir. 1986)(unilateral changes to union office space was
unlawful); Turtle bay Resorts, supra, 308 NLRB 848–849 (uni-
laterally changes to past access practice); Frontier Hotel &
Casino., 323 NLRB 815, 818 (1997); Oaktree Capital Man-
agement, 355 NLRB 1272 (2010).
2. Withdrawal of recognition49
On July 3, 2013, the Company unlawfully withdrew recogni-
tion from the Union, as the unit’s exclusive collective bargain-
ing representative. As a threshold matter, an employer cannot
lawfully withdraw recognition from a union where it has com-
mitted unfair labor practices that directly relate to the employee
decertification effort, such as actively soliciting, promoting or
assisting the effort. See Hearst Corp., 281 NLRB 764 (1986),
enfd. 837 F.2d 1088 (5th Cir. 1988), rehearing denied 840 F.2d
15 (5th Cir. 1988). In circumstances where the employer en-
gages in this type of misconduct, the Board “presumes that the
employer's unlawful meddling tainted any resulting expression
of employee disaffection, without specific proof of causation,
and precludes the employer from relying on that expressed
disaffection to overcome the union’s continuing presumption of
majority support.” Id. In Ardsley Bus Corp., 357 NLRB 1009
(2011), the Board further explained that:
Upon expiration of a collective-bargaining agreement, an in-
cumbent union is presumed to have majority support among
the employees it represents. An employer may withdraw
recognition from the union only if the union has actually lost
majority support. . . . An employer may not, however, lawful-
ly withdraw recognition from a union where it has committed
unfair labor practices that have a tendency to cause the loss of
union support. . . . Where the unfair labor practices do not in-
volve a general refusal to recognize and bargain with the un-
ion, there must be a causal relationship between the unfair la-
bor practices and the loss of support in order for the with-
drawal of recognition to be unlawful. . . . To determine
whether there is a causal connection between an employer's
unfair labor practices and employees' disaffection, the Board
considers the following factors:

48 I credited the General Counsel’s witnesses, who said that these
changes significantly altered prior policies.
49 These allegations are listed under pars. 38 and 41 of the complaint.
(1)The length of time between the unfair labor practic-
es and the withdrawal of recognition;
(2) the nature of the illegal acts, including the possibil-
ity of their detrimental or lasting effect on employees;
(3) any possible tendency to cause employee disaffec-
tion from the union; and
(4) the effect of the unlawful conduct on employee
morale, organizational activities, and membership in the
union.
357 NLRB 1009, 1012.
In the instant case, the Company’s extensive and repeated
violations caused the widespread employee disaffection, which
prompted the third decertification petition. These violations
were close in time to this petition, and were so voluminous and
egregious that they naturally spawned significant disaffection
from a Union that had been rendered powerless by a recalci-
trant employer. As noted, the Company repeatedly and unlaw-
fully threatened and disciplined union adherents, threatened
that ongoing union support would cause a plant closure, contin-
uously labeled ongoing union support as futile and useless, and
deeply undermined the Union by making several unilateral
changes, which included eviscerating its ability meet with unit
employees at the plant. Such actions naturally spawned the
third petition, and left an indelible message that continued un-
ionization was tantamount to job loss and a pointless exercise.
See Penn Tank Lines, Inc., 336 NLRB 1066, 1068 (2001).
3. Postwithdrawal of recognition unilateral changes50
Given that the Company unlawfully withdrew recognition
from the Union, its subsequent unilateral changes regarding
wages and Union access were unlawful. See, e.g., Northwest
Graphics, Inc., 342 NRLB 1288, 1288 (2004) (unilateral wage
increases); Turtle Bay Resorts, supra, 353 NLRB at 1275 (un-
ion access).
The Company’s refusal to deduct and remit dues to the Un-
ion since July 2013, however, was lawful. Although the Board
previously held that dues-checkoff provisions survive contract
expiration and that postexpiration cessation was unlawful (see
Alamo Rent-A-Car, 359 NLRB 1373, 1376 (2013); WKYC-TV,
Inc., 359 NLRB 286, 293 (2012)), such precedent was recently
set aside by the United States Supreme Court. See NLRB v.
Noel Canning, No. 12–1281, ___ S.Ct. ___ (June 26, 2014)
(setting aside Board precedent from January 4, 2012 through
August 4, 2013, because the Board lacked a quorum during this
period, as a consequence of the invalid appointments of three of
its five members). I find, as a result, that the Board’s pre-Noel
Canning precedent is controlling herein, which provides that
employers do not violate Section 8(a)(5) by unilaterally ceasing
dues checkoff following the expiration of their collective-
bargaining agreements. See, e.g., Hacienda Resort Hotel &
Casino, 331 NLRB 665 (2000) (subsequent history omitted).
Thus, given that the parties’ CBA expired on February 8, 2012,
the Company’s July 2013 cessation of dues deductions and
remissions was valid.

50 These allegations are listed under pars. 34–37 and 41 of the com-
plaint.
SOUTHERN BAKERIES, LLC 33
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in 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, and, at all material times, was the exclusive
bargaining representative for the following appropriate unit:
All full-time and regular production and sanitation employees
employed by the Company at its Hope, Arkansas plant, ex-
cluding all other employees, including temporary and season-
al employees as defined in the parties’ expired collective bar-
gaining agreement, office clerical employees, professional
employees, guards and supervisors as defined by the Act.
4. The Company violated Section 8(a)(1) of the Act by
(a) Threatening employees with discipline, job loss and other
unspecified reprisals, if they engaged in union or other protect-
ed concerted activities.
(b) Interrogating employees concerning their union or other
protected concerted activities.
(c) Creating the impression that employee union activities
were under surveillance.
(d) Telling employees that it would be futile for them to re-
tain the Union as their collective-bargaining representative.
(e) Promising employees improved wages and other unspeci-
fied benefits, in order to discourage them from retaining the
Union as their collective-bargaining representative.
(f) Disparaging the Union, while appealing to racial preju-
dice, in order to discourage employees from retaining the Un-
ion as their collective-bargaining representative.
(g) Threatening employees that the Company would close, if
they engaged in Union or other protected concerted activities.
5. The Company violated Section 8(a)(1) and (3) of the Act
by
(a) Subjecting Loudermilk to a disciplinary investigation and
issuing her a personnel file documentation because she engaged
in union or other protected concerted activities.
(b) Subjecting Marks to a disciplinary investigation and issu-
ing her a personnel file documentation and suspension because
she engaged in union or other protected concerted activities.
(c) Subjecting Phillips to a disciplinary investigation, and is-
suing her a personnel file documentation and written warning
because she engaged in union or other protected concerted ac-
tivities.
6. The Company violated Section 8(a)(1) and (5) of the Act
by
(a) Withdrawing recognition from the Union on July 3, 2013.
(b) Unilaterally installing surveillance cameras in the break
area.
(c) Unilaterally changing the Union’s plant access rights and
procedures.
(d) Prohibiting the Union from entering the plant between
March and November 2012, and, at all times, after February
2013.
(e) Unilaterally increasing employees' wages in September
2013.
7. The Company has not otherwise violated the Act.
8. The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company committed certain unfair la-
bor practices, it must cease and desist and take certain affirma-
tive action designed to effectuate the policies of the Act.
It shall expunge from its records any reference to these per-
sonnel actions: Loudermilk’s disciplinary investigation and
documentation; Marks’ disciplinary investigation, documenta-
tion and suspension; and Phillips’ disciplinary investigation,
documentation and warning. It shall also provide them with
written notice of such expunction, and inform them that its
unlawful conduct will not be used against them as a basis for
future discipline. It shall also make Marks whole for her sus-
pension; her backpay shall be computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
It shall also recognize the Union and, upon request, meet and
bargain with it regarding the unit’s terms and conditions of
employment. It will reinstate its access rights, and rescind any
unilateral changes made to such access rights since March 8,
2012. It shall remove the surveillance cameras that were in-
stalled in the break area in January 2013 and restore the win-
dowed walls that divided the break area. It will, if requested by
the Union, rescind the unilateral wage increase that was imple-
mented after its withdrawal of recognition.
It shall distribute appropriate remedial notices electronically
via email, intranet, internet, or other appropriate electronic
means to unit employees, in addition to the traditional physical
posting of paper notices, if it customarily communicates with
workers in this manner. See J. Picini Flooring, 356 NLRB 11
(2010). Because the record demonstrates that it employs a
significant number of unit employees, who do not speak or read
English, the attached notice shall be posted in English and
Spanish.
In addition to the traditional remedies for the violations
found herein, Ledbetter will read the notice marked “Appen-
dix” to unit employees at the plant, during work time, in the
presence of a Board agent. His notice reading will simultane-
ously be translated into Spanish. A notice reading will coun-
teract the coercive impact of the instant unfair labor practices,
which were substantial, pervasive and frequently committed at
analogous captive audience meetings. See McAllister Towing
& Transportation Co., 341 NLRB 394, 400 (2004), enfd. 156
Fed.Appx. 386 (2d Cir. 2005).
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended51
ORDER
The Company, Southern Bakeries, LLC, Hope, Arkansas, its
officers, agents, successors, and assigns, shall

51 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
1. Cease and desist from
(a) Threatening employees with discipline, job loss and other
unspecified reprisals, if they engage in Union or other protected
concerted activities.
(b) Interrogating employees concerning their union or other
protected concerted activities.
(c) Creating the impression that employee union activities
were under surveillance.
(d) Telling employees that it would be futile for them to re-
tain the Union as their collective-bargaining representative.
(e) Promising employees improved wages and other unspeci-
fied benefits, in order to discourage them from retaining the
Union as their collective-bargaining representative.
(f) Disparaging the Union, while appealing to racial preju-
dice, in order to discourage employees from retaining the Un-
ion as their collective-bargaining representative.
(g) Threatening employees that the Company would close, if
they engaged in union or other protected concerted activities.
(h) Commencing disciplinary investigations against, issuing
written warnings and personnel file documentations to, sus-
pending, or otherwise discriminating against Lorraine Marks,
Sandra Phillips or Vicki Loudermilk, or any other employee,
for supporting Bakery, Confectionary, Tobacco, Grain Millers
Union, Local 111, or any other labor organization, or for engag-
ing in other protected concerted activities.
(i) Withdrawing recognition from the Union as the exclusive
collective-bargaining representative of its employees in the
following appropriate unit:
All full-time and regular production and sanitation employees
employed by the Company at its Hope, Arkansas plant, ex-
cluding all other employees, including temporary and season-
al employees as defined in the parties’ expired collective-
bargaining agreement, office clerical employees, professional
employees, guards and supervisors as defined by the Act.
(j) Granting a wage increase to its unit employees, without
providing the Union notice and an opportunity to bargain.
(k) Implementing new rules regarding the Union's access to
unit employees at the plant since March 8, 2012, and, thereaf-
ter, barring the Union from entering the plant, without provid-
ing it notice and an opportunity to bargain.
(l) Installing surveillance cameras in the break area, without
providing the Union notice and an opportunity to bargain.
(m) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.52
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the unit and, upon request, bargain
with it regarding the wages, hours, and terms and conditions of
employment of unit employees and, if an understanding is
reached, embody the understanding in a signed agreement.

52 A broad cease and desist order is appropriate herein. See, e.g.,
Regency Grande Nursing & Rehabilitation Center, 354 NLRN 530,
531 fn. 10 (2009), affd. 355 NLRB 587 (2010), enfd. 441 FedAppx.
948 (3d Cir. 2011).
(b) If requested by the Union, rescind the wage increase that
was implemented in September 2013, and bargain with it be-
fore implementing future wage and benefit increases for unit
employees.
(c) Restore the plant access policy, which was in effect prior
to March 8, 2012.53
(d) Remove the surveillance cameras that were installed in
the break area, and bargain with the Union before installing
such cameras in the break area in the future.
(e) Make Marks whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her in
the manner set forth in the remedy section of the decision.
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful disciplinary
investigations, written warning, Personnel File Documentations
and suspension concerning Marks, Phillips and Loudermilk,
and within 3 days thereafter notify them, in writing, that this
has been done and that such discipline will not be used against
them in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the backpay amounts
due under the terms of this Order.
(h) Within 14 days after service by the Region, physically
post at its Hope, Arkansas facility, and electronically send and
post via email, intranet, internet, or other electronic means to its
unit employees who were employed at its Hope, Arkansas facil-
ity at any time since March 8, 2012, copies of the attached No-
tice marked “Appendix” in English and Spanish.
54
Copies of
the Notice, on forms provided by the Regional Director for
Region 15, after being signed by the Company’s authorized
representative, shall be physically posted by the Company and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where Notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to
ensure that the Notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Company has gone out of business or
closed the facility involved in these proceedings, the Company
shall duplicate and mail, at its own expense, a copy of the No-
tice to all current employees and former employees employed
by it at the facility at any time since March 8, 2012.
(i) Within 14 days after service by the Region, hold a meet-
ing or meetings during working hours, which will be scheduled
to ensure the widest possible attendance of unit employees, at
which time the attached notice marked “Appendix” is to be

53 This includes restoring the windowed wall, which divided the
break area.
54 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.”
SOUTHERN BAKERIES, LLC 35
read to its employees by Ledbetter in the presence of a Board
agent; such notice reading will be simultaneously translated
into Spanish by an interpreter.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed, inso-
far as it alleges violations of the Act not specifically found.
Dated Washington, D.C. July 17, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten discipline, job loss or other unspeci-
fied reprisals, because you support the Bakery, Confectionary,
Tobacco and Grain Millers Union, Local 111 (the Union) or
any other union.
WE WILL NOT interrogate you about your Union or other pro-
tected concerted activities.
WE WILL NOT create the impression that your union activities
are under surveillance.
WE WILL NOT tell you that it would be futile or useless for
you to retain the Union as your collective-bargaining repre-
sentative.
WE WILL NOT promise you better wages and benefits, in order
to discourage you from retaining the Union as your collective-
bargaining representative.
WE WILL NOT disparage the Union, while appealing to racial
prejudice, in order to discourage you from retaining the Union
as your collective-bargaining representative.
WE WILL NOT threaten that we will close the plant, if you en-
gage in union or other protected concerted activities.
WE WILL NOT investigate you, issue written warnings and
personnel file documentations, suspend you, or otherwise dis-
criminate against because you support the Union or any other
labor organization, or for engaging in other protected concerted
activities.
WE WILL NOT withdraw recognition from the Union or refuse
to bargain with it as the exclusive collective-bargaining repre-
sentative of employees in the following appropriate unit:
All full-time and regular production and sanitation employees
employed at our Hope, Arkansas plant, excluding all other
employees, including temporary and seasonal employees as
defined in the parties’ expired collective-bargaining agree-
ment, office clerical employees, professional employees,
guards and supervisors as defined by the Act.
WE WILL NOT make changes to your wages, hours, and other
terms and conditions of employment, without first notifying the
Union and offering it an opportunity to bargain regarding these
proposed changes.
WE WILL NOT limit the Union’s ability to enter the plant and
break area, without first notifying the Union and offering it an
opportunity to bargain regarding the proposed changes.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL recognize and, upon request, bargain with the Un-
ion as the exclusive collective-bargaining representative of our
unit employees concerning their terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement.
WE WILL, upon request, cancel and rescind all terms and
conditions of employment that we unlawfully implemented
since March 8, 2012, which included our installation of surveil-
lance cameras in the break area, changes in the Union’s plant
access rights and wage increase, but we are not required to
cancel any unilateral changes that benefited you, such as the
wage increase that we implemented in September 2013.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful investigations,
personnel file documentations, written warnings and suspen-
sions involving Lorraine Marks, Sandra Phillips and Vicki
Loudermilk.
WE WILL make Marks whole for any loss of earnings and
other benefits resulting from her suspension.
WE WILL, within 3 days thereafter, notify Marks, Phillips and
Loudermilk in writing that the above-described actions have
been taken and that the investigations, personnel file documen-
tations, written warning and suspension will not be used against
them in any way.
WE WILL hold a meeting or meetings during working hours
and have this notice read to you and your fellow workers in
English by Executive Vice President Rickey Ledbetter, and
simultaneously translated into Spanish, in the presence of an
agent of the National Labor Relations Board.
SOUTHERN BAKERIES, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15–CA–101311 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36