Superior Bakery, Inc.

National Labor Relations Board - Board Decisions

May 25, 1989

294 N.L.R.B. 256 (N.L.R.B. 1989)

256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Superior Bakery , Incorporated and Local 50,
Bakery , Confectionery & Tobacco Workers,
AFL-CIO. Case 39-CA-3379
May 25, 1989
DECISION AND ORDER
By MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On June 29, 1988, Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel and the Charging Party
filed cross-exceptions and supporting briefs, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found that\Working Foreman Gerard
Julian was a statutory supervisor. He also found
that the Respondent violated Section 8(a)(2) and
(1) of the Act by suggesting that employees form a
committee as an alternative to the Union and al-
lowing Julian to establish the employee committee
and to assist it in the preparation of contract pro-
posals. We agree.
The judge further found that the Respondent
violated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from the Union on February
18, 1987, based on the petition indicating loss of
employee support for the Union received by the
Respondent on that date, and by thereafter refusing
to bargain with the Union. We agree with the
judge's finding of this violation, but for the follow-
ing reasons.
The judge found that the petition had only 18
valid employee signatures in a unit of 40 employees
and I statutory supervisor. It could, therefore, not
be relied on as an expression of majority disaffec-
tion from the Union sufficient to support Respond-
ent's good-faith doubt about majority status. We
agree with the judge's conclusion that the petition
does not contain the signatures of a majority of em-
ployees in the unit, but our conclusion is based on
our finding contrary to the judge that Julian's sig-
nature, that of a statutory supervisor, cannot be
counted. It is undisputed that the employee com-
plement consisted of at least 39 employees and that
no more than 19 of those employees signed the pe-
tition. The 20th signature was that of Julian. It is
axiomatic that despite agreement among the parties
to include a supervisor in a bargaining unit, the
Board will not find a statutory supervisor to be eli-
gible to vote in a Board election.' As we have
stated elsewhere: "There is no question but that it
would contravene the policies of the Act and the
Board knowingly to permit the ballots of supervi-
sors to determine the results of the election."2
Similarly, here we cannot knowingly permit the
signature of Julian, a statutory supervisor to deter-
mine disaffection from the Union.3 Accordingly, as
the Respondent could not have believed in good
faith that there was a showing of majority disaffec-
tion from the Union on the face of the petition, the
Respondent cannot rely on it to show good-faith
doubt of loss of majority support.4
We therefore adopt the judge's findings of
8(a)(5), (2), and (1) violations with respect to Re-
spondent's withdrawal of recognition from the
Union, failure to bargain with the Union, and as-
sisting and recognizing the employee committee es-
tablished to take the place of the Union.5 Thus, we
i American Optical Corp, 219 NLRB 48, 49 (1975)
2 Fisher-New Center Co, 184 NLRB 809, 810 (1970) (inclusion of super-
visors on Norris-Thermador list not binding on parties as violative of poli-
cies underlying the Act) See also Rose Metal Products, 289 NLRB 1153
(1988) (unit-member statutory supervisor is precluded from filing a deau-
thorization petition)
s We decline to follow Indiana Cabinet Co, 275 NLRB 1209 (1985), to
the extent that case implies that the signature of a statutory supervisor
would be included in assessing majority disaffection from a union That
case, however, seems to have turned on its singular facts, particularly the
parties' stipulation and litigation strategy
4 In view of our finding that Julian's signature on the petition cannot
be counted, we need not reach the issues of whether the signatures of St
Cyr or Therrien may be counted and whether Fafard was a current unit
employee
We disavow the judge's comments concerning the Respondent's failure
to check the petition with its labor counsel and its alacrity in withdraw-
ing recognition We do, however, agree with the judge that the Respond-
ent failed to demonstrate that it had a good-faith doubt based on objec-
tive considerations of the Union's continued majority status In this
regard, we note first that factual ambiguities may be resolved against the
Respondent as the party controlling employment records and possessing
knowledge about the size and characteristics of its employee complement
Cf. Wilshire Foam Products, 282 NLRB 1137 (1987) Thus, we reject, as
did the judge, the Respondent's contentions that the petition constituted a
reasonable objective basis for doubting the Union's continued majority
status because it thought that Julian's vote would be counted, it was not
aware that Julian had solicited two other signatures, and it thought that
Fafard was not a member of the unit These questions go to the heart of
whether the petition on its face is sufficient to support a withdrawal of
recognition Although the Board does not require an employer receiving
a petition to verify each signature , it does require that the petition appear
to contain the signatures of a majority of unit employees Harley-Davidson
Transportation Co, 273 NLRB 1531, 1532 (1985), Guerdon Industries, 218
NLRB 658, 660 (1975) In this case, the Respondent's knowledge of Ju-
lian's questionable status casts sufficient doubt on the petition to render it
useless as an objective indication that a majority of the unit employees no
longer wished to be represented by the Union
5 Amounts owing as a result of Respondent's failure to abide by its
benefit plan obligation shall be computed as provided in Kraft Plumbing,
252 NLRB 891 (1980) Interest will be computed under New Horizons for
the Retarded, 283 NLRB 1173 (1987)
294 NLRB No. 21
SUPERIOR BAKERY
find it unnecessary to reach the judge's further
holdings of additional 8(a)(5) and (1) violations
with respect to Gerard Julian's solicitation of the
signatures of Bob Therrien and Beatrice St. Cyr.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Superior Bakery, Inc., North Grosvenor-
dale, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Delete paragraph 1(a) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT withdraw recognition and refuse
to recognize Local 50, Bakery Confectionery &
Tobacco Workers, AFL-CIO as the exclusive bar-
gaining representative of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them by Section 7
of the Act.
WE WILL withdraw recognition from the em-
ployees committee established to take the place of
the Union as the exclusive bargaining representa-
tive of our employees and will recognize and bar-
gain, on request, with Local 50, Bakery, Confec-
tionery & Tobacco Workers, AFL-CIO with re-
spect to rates of pay, wages, and other terms and
conditions of employment.
WE WILL restore the status quo ante with re-
spect to the Union by reinstating the health insur-
ance and pension plans that were in effect prior to
257
our withdrawal of recognition of the Union, make
whole any employee who suffered any loss of ben-
efits as a result of the substitution of our company
plan for the union health insurance program, pay
to the union pension fund these contributions plus
interest that would have been made under the pen-
sion plan to the date we resume the payments, and
WE WILL compensate the Union for dues that
would have been checked off pursuant to the de-
duction authorization for all our employees who
have not terminated those authorizations, with in-
terest.
SUPERIOR BAKERY, INC.
Michael Marcionese, Esq., for the General Counsel.
Eric Lamm , Esq., of New York, New York , for the Re-
spondent.
Arthur Flamm, Esq., of Boston , Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Based on a charge filed February 26, 1987, and amended
on March 16, 1987, by Local 50, Bakery, Confectionery
& Tobacco Workers, AFL-CIO (the Union), the Officer-
in-Charge for Subregion 39 issued a complaint on May
29, 1987, alleging that Superior Bakery, Inc. (Respond-
ent) violated Section 8(a)(1) of the Act by promising em-
ployees unspecified benefits if they rejected the Union as
their bargaining representative and by threatening em-
ployees with unspecified reprisals if they did not reject
the Union as their bargaining representative; violated
Section 8(a)(1) and (5) of the Act by withdrawing recog-
nition from the Union on February 18, 1987; and violat-
ed Section 8(a)(2) of the Act by thereafter rendering aid,
assistance, and support to its employee committee, a
labor organization within the meaning of Section 2(5) of
the Act.
Hearing was held in Hartford, Connecticut, on De-
cember 2 and 3, 1987. Subsequently, briefs were received
from all parties.
Stated briefly, the issues to be decided in this proceed-
ing are:
(1) Did Respondent through its Supervisors Larry
Brown and Ray Faucher, Jr. violate Section 8(a)(1) of
the Act by making threats and promises to employee
Larry Dolloff on or about February 10 and 11, 1987.
(2) Was Working Foreman Gerard Julian a supervisor
of Respondent within the meaning of Section 2(11) of
the Act and/or an agent of Respondent within the mean-
ing of Section 2(13) of the Act.
(3) Did Respondent violate Section 8(a)(5) of the Act
by withdrawing recognition from the Union on February
18, 1987, based upon the petition it had received.
(4) Did Respondent violate Section 8(a)(2) of the Act
through Ray Faucher Jr.'s suggestion on February 19
that employees form an employee committee, and
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
through the subsequent actions taken by Julian to estab-
lish the committee and to assist it with preparation of
contract proposals?
Based upon the entire record, including the demeanor
of witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Superior Bakery, Inc. (Respondent) is a Connecticut
corporation with an office and place of business in North
Grosvenordale, Connecticut, and engages in the produc-
tion and nonretail sale of baked goods. Respondent has
admitted the jurisdictional allegation of the complaint
and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act. It was
stipulated that the employee committee, discussed herein-
after, is now and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act. It was stipulated that the following employees of
Respondent (the unit) constituted a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time employees in-
cluding lead man, sponge mixer, dough mixer, di-
vider operator, reliefman, oven lead man, shipper,
shipper/yard person, assistant shipper/yard person,
pack machine operator, pack machine operator
helper, transport driver, straight driver, mainte-
nance man and general help, but excluding all other
employees, casual part-time employees not assigned
to a regular part-time work schedule and guards,
professional employees and supervisors as defined in
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent, a Connecticut corporation, operates a
wholesale bakery in North Grosvenordale, Connecticut,
where it makes primarily breads and rolls. Superior Cake
Products, Inc., an affiliated company with a plant in
Southbridge, Massachusetts, makes primarily cake prod-
ucts. Ray Faucher Jr., Respondent's director of oper-
ations and an admitted supervisor, oversees production at
both plants. The Union has represented a unit of produc-
tion and maintenance employees and drivers at the North
Grosvenordale facility since it was certified by the Board
in August 1969. The Union also represented a smaller
unit of employees at the Southbridge, Massachusetts fa-
cility until the Employer withdrew recognition there on
February 10. The withdrawal of recognition from the
Union by Superior Cake Products is not an issue in these
proceedings.
The most recent collective-bargaining agreement cov-
ering Respondent's employees at -North Grosvenordale
expired on December 31, 1986. Respondent and the
Union commenced bargaining for a new agreement in
December 1986 and negotiation sessions continued into
February without reaching agreement on a new'contract
The last meeting between the parties occurred at the
Yankee Drummer Inn in Auburn, Massachusetts, on Feb-
ruary 18, 1987.1 The meeting was scheduled to com-
mence at 9:30 a.m. However, at approximately 9:40 a in.
Respondent's attorney asked the Union for a half-hour
delay. According to Union Representative Robert Pelli-
grino, the attorney gave no explanation for the delay at
that time. According to Ray Faucher Jr., he, Louis
Faucher and their attorney met for breakfast prior to the
start of the scheduled negotiations. This was about 9 a.m.
on February 18 He further testified that just before 9:30
he received a call from his father, Ray Faucher Sr., in-
forming him that he had received a petition with a ma-
jority of unit employee signatures on it withdrawing rec-
ognition from the Union. Faucher Jr. passed this infor-
mation on to the attorney and he testified the attorney
then informed the union representatives that they
thought they had a good-faith doubt about the Union's
continuing majority and believed they would receive a
petition withdrawing recognition. Faucher testified he
then left the Inn and went to secure the petition from his
father.
Respondent's negotiating committee met with the
Union at approximately 10.45 that morning At this time,
Respondent's attorney advised the Union that Respond-
ent had received a petition signed by a majority of its
employees and that it was withdrawing recognition from
the Union. Respondent denied the Union's request to see
the petition.
By 11 o'clock that morning, Respondent had posted a
notice in its plant advising the employees that it had
withdrawn recognition from the Union and announcing
increases in wages and a new fringe benefits package,
consistent with what had been offered to the Union
during negotiations. The notice also advised employees
of a meeting to be held the following evening to explain
these new benefits.
The petition, which Respondent received on the morn-
ing of February 18, was signed by 19 employees, and by
Gerard Julian, the working foreman, who is a member of
the bargaining unit Julian testified that he was first ap-
proached with the petition by employee Ernie Paquin
when he arrived for work at 1:30 a.m. on February 18
Paquin, the second-shift mechanic, had already punched
out and was waiting for Julian. Paquin asked Julian to
circulate the petition among the employees on the first
shift. Julian testified that he had first declined to sign or
otherwise get involved in circulating this petition be-
cause of questions concerning his status as working fore-
man. Chris Bates, a mechanic, circulated the petition in-
stead. Sometime between 6-8 a.m., after several tele-
phone conversations with Paquin, Julian signed the peti-
1 All dates hereinafter are in 1987 unless otherwise noted
SUPERIOR BAKERY
tion himself and solicited the last two signatures-those
of Robert Therrien and Beatrice St. Cyr.
St. Cyr was not scheduled to come into work until
11:30 that morning . According to Julian , he telephoned
her at her home and went there to obtain her signature
before turning in the petition about 9:30 a.m. to Ray
Faucher Sr . Although Julian testified that he went to St.
Cyr's house after punching out for the day, his timecard
indicates he did not punch out until 9 .45 a.m . Since Ray
Faucher Jr . testified that he learned that his father re-
ceived the petition just before the scheduled 9:30 a in
start of negotiations, Julian must have solicited St. Cyr's
signature at her home while he was still on the clock,
being paid by Respondent According to Julian, he
stopped at 20 signatures and turned in the petition be-
cause Paquin told him that was the number he needed.
Two credibility resolutions are apparent from the fore-
going . One I find to be immaterial, that is, did Respond-
ent's attorney inform the Union 's representatives at the
scheduled bargaining session about 9:30 a.m . why there
was to be a delay as Respondent testified, or did Re-
spondent fail to give the union a reason as the Union's
representative testified . I credit the testimony of the
union representative that they were not informed, be-
cause if they had been informed , in all likelihood the
Union would have immediately attempted to verify that
a majority of employees in the bargaining unit had
signed a petition . Since the Union did nothing until after
10.40 a.m ., I believe that they were not informed of the
reason for the delay in the start of the meeting.
The second credibility resolution is more meaningful.
Was Julian still on duty and being paid at the time he
solicited the signature of employee St. Cyr ? His testimo-
ny on this point , which was not very convincing, was
that he was off the clock and on the way home Howev-
er, as he did not clock out until 9:45 a.m. and as Re-
spondent has testified that Ray Faucher Sr. had a peti-
tion in hand as of approximately 9:30 a.m ., the only logi-
cal conclusion to draw is that Julian left the plant some-
time in the morning, obtained St. Cyr 's signature, and re-
turned to the plant before clocking out . I therefore find
that he in fact was still on the Company's payroll at the
time St. Cyr 's signature was solicited and obtained.
On February 18, Respondent had 39 undisputed statu-
tory employees employed in the bargaining unit . In addi-
tion , another employee, Gertrude Fafard , was still car-
ried on Respondent's payroll as an employee on sick
leave, although she had not worked since late 1985. Ray
Faucher Jr. testified that he terminated Fafard about
1985 after a telephone conversation with Fafard 's sister-
in-law . The purpose of the sister -in-law's call was to seek
assistance in getting Fafard 's medical bills paid by the
Union 's insurance fund . According to Faucher Jr., after
giving Fafard 's sister-in-law the fund 's telephone number
to pursue her claims for reimbursement , he inquired as to
Fafard 's health . The sister-in-law allegedly informed
Faucher Jr. that Fafard was still institutionalized, was
not doing too well , and that her doctor had said she
would never again work.
According to Faucher Jr., based on this information,
he terminated Fafard 's employment . However , he further
testified that he notified no one about this termination.
259
Respondent 's bookkeeper continued to notify the Union
that Fafard was an absent employee until recognition
was withdrawn . Respondent 's production manager listed
Fafard on weekly work schedules at least through Janu-
ary 1987
As noted above, by a notice dated February 18, Re-
spondent informed its employees that it had withdrawn
recognition from the Union and invited the employees to
a meeting the following evening to learn about Respond-
ent's new benefits package This meeting was held on
February 19, at the American Legion Hall in Grosvenor-
dale, Connecticut . Louis and Ray Faucher Jr. were there
along with two representatives from Respondent's insur-
ance company who described the new health plan in-
tended to replace the Union 's health insurance benefits.
Ray Faucher Jr, testified that at this meeting Louis
Faucher gave a short introduction , at which time he in-
troduced the people who would be implementing the
new health insurance plan, and they talked for about an
hour going over various points of the health insurance
plan. He then testified that he took the floor and apolo-
gized for being delinquent in making contributions to the
Union 's insurance fund , which created problems for the
employees seeking reimbursement from the fund for
medical expenses
Faucher Jr . testified he then told the employees that
Respondent had no plans to change any of the operations
and began answering employees ' questions . He men-
tioned questions about a grievance procedure and proce-
dures to handle employee terminations . He then said that
an unidentified employee suggested that a smaller group
get together and review the proposal. He responded that
it would be fine if the employees wanted to appoint a
representative from each shift with whom Respondent
would meet whenever a disagreement or a grievance
arose. He testified that after a couple of other unrelated
questions he and Louis were asked to leave the meeting
and they did so.
An employee at the meeting, Gloria Albetski , testified
and generally corroborated much of Faucher 's version of
the meeting . She also added that a supervisor, Peter
Strik, stated at the meeting that some companies have
employee committees , and Ray Faucher Jr . commented
that the employees of Respondent could have the same
thing. After Faucher Jr left , Julian spoke to the employ-
ees. According to Albetski , Julian said the Employer of-
fered a good package and the employees ' should give
them a chance. He further stated that if the Employer
did not keep its word the employees could try to get the
Union back. He told the group that the Employer would
give them basically the same contract they presently had,
with a wage increase , as noted in the notice setting the
meeting.
Ray Dolloff, a driver for Respondent , testified that
after the meeting Faucher told the employees that the
employee committee would be composed of a representa-
tive from each employee group and that the employees
would vote to elect their own representatives.
Another employee attending the meeting, Claudette
Lefebvre, testified as to what is set forth above and also
testified that she complained that it was underhanded to
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
try decertify the Union because everyone was not in-
volved. She testified that Julian responded that he had
nothing to do with it at first, and that "Pacquin is the
one who started it and I finished it."
The parties stipulated to the following facts at the
hearing- On February 21 Julian conducted an election
among Respondent's unit employees to select employee
representatives to the committee. This election was con-
ducted at Respondent's facility. On February 23, Julian
met with the four elected employee representatives in an
office in the production area of Respondent's facility and
assisted them in preparing proposals concerning working
conditions or conditions of employment which were to
be discussed with Respondent. After this meeting, Julian
and the committee met with Respondent's representa-
tives, Louis and Ray Faucher Jr., to discuss these pro-
posals. Among these proposals were extension of em-
ployees' lunchbreaks by 15 minutes, a new warning
system, and an amnesty for warnings issued prior to Jan-
uary 1.
Did Respondent, through Supervisors Larry Brown
and Ray Faucher Jr., Violate Section 8(a)(1) of the
Act by Making Threats and Promises to Employee
Larry Dolloff on or about February 10 and 11?
Approximately 1 week before the decertification peti-
tion was submitted to Respondent, its supervisors, Larry
Brown and Ray Faucher Jr., had conversations with em-
ployee Larry Dolloff, which are alleged to violate Sec-
tion 8(a)(1) of the Act. Dolloff was employed by Re-
spondent as a truckdriver for approximately 6 months,
until he was terminated on March 3. Dolloff testified that
he had a conversation with his supervisor, Larry Brown,
on the night of February 10 while waiting for a new
truck to replace the damaged one he had been assigned.
Dolloff had earlier complained to Brown about being as-
signed the New York-New Jersey run. According to
Dolloff, Brown called him into the office and told Dol-
loff that he had been screwing up quite a bit lately and
that, if he got one more warning, he would probably be
fired. Brown allegedly told Dolloff that there was a peti-
tion circulating among Respondent's employees and that
if Dolloff signed it, he could help himself out a little bit.
Dolloff recalled that Brown might have also told him at
this time that Julian was going around with this petition
and would get hold of him. Dolloff testified that nothing
more was said and he left to take the New York run.
Dolloff testified further that, on his return from the
New York run, he found a note on the dispatcher's door
to see Ray Faucher Jr. Dolloff went to Faucher Jr.'s
office where he was questioned by Faucher Jr. regarding
his complaints about the New York run. Dolloff stated
that he told Faucher Jr. that he had not bid on that run
and felt that it should go to the junior man. Faucher Jr.
told Dolloff that the junior man was not qualified to
drive and that Dolloff would have to take the New York
run or be fired. Dolloff testified that Faucher Jr. asked
him during this conversation if he had heard anything
about a petition. Dolloff told Faucher Jr. that Brown
had said something to him about it. Faucher Jr. then re-
minded Dolloff that he had received two warnings al-
ready and it would probably be ,beneficial if Dolloff
signed the petition.
According to Dolloff, he had not seen any petition
before these conversations. He testified that the next day
Julian approached him in the breakroom and asked Dol-
loff to sign the petition, explaining it was to do away
with the Union. Dolloff refused to sign. Dolloff testified
that Julian and another employee spoke to him again
about the petition the next day in an office in the pro-
duction area, urging him to sign, but that he had again
refused.
Brown and Faucher admitted having conversations
with Dolloff on or about the date alleged which included
the discussion of Dolloff's unhappiness with driving the
New York run, but each denied making any statements
about a petition. Brown admitted to a discussion with
Dolloff around this time regarding Dolloffs warnings
and admitted telling Dolloff that he was on "shaky
ground," but denied mentioning an employee petition.
Faucher Jr. testified that he was not aware of any decer-
tification petition at Respondent's facility until February
'15, and Brown testified that the petition first came to his
attention on February 17. Both admitted that, before the
dates of their alleged conversations with Dolloff, they
had knowledge of a decertification petition which was
circulated among employees at the cake plant in Massa-
chusetts. Julian and Lefebvre testified that there was an
unsuccessful attempt to circulate a petition at Respond-
ent's facility a few weeks before the February 17 peti-
tion, which would have preceded Dolloff's conversation
with Brown and Faucher Jr.
As noted above, Brown and Faucher Jr. both denied
asking Dolloff anything about a decertification petition
and Julian denies having the conversation with Dolloff
as alleged. I credit the testimony of Faucher, Brown, and
Julian in this regard. Dolloff appeared to be a fairly hos-
tile witness and was unconvincing in his testimony with
respect to the alleged threats. A charge was filed by the
Union on Dolloff's behalf protesting his discharge, which
was subsequently withdrawn. Additionally, Dolloff filed
complaints against Respondent with the U.S. Department
of Transportation after his discharge Dolloff admitted
that he felt that his discharge was unfair. Additionally,
no other employee came forward alleging any threats by
Respondent's management or, for that matter, any re-
quest by Respondent's management to sign an earlier de-
certification petition With respect to Julian, I find it
highly unlikely that he would single out Dolloff, a driver
who was not in his immediate work unit to urge him to
sign a petition as alleged. This is especially true in light
of Julian's unwillingness at the outset even to circulate a
petition among his own shift when asked to do so on
February 18. Moreover, Dolloff was obviously antago-
nistic toward Julian, whom he blamed for a suspension in
December 1986.
As I do not credit any of Dolloff's testimony with re-
spect to the alleged threats or promises, I will recom-
mend the dismissal of the allegations in the complaint
that Respondent violated Section 8(a)(1) of the Act by
making threats and promises to Dolloff.
SUPERIOR BAKERY
Was Working Foreman Gerard Julian a supervisor
within the meaning of the Act?
Working Foreman Julian signed the decertification pe-
tition and was a member of the bargaining unit. The
General Counsel urges that Julian possessed and exer-
cised supervisory authority as defined by the Act, an as-
sertion Respondent denies. Julian was a working foreman
for approximately 3 years until he left Respondent's em-
ployment in mid-August.
According to Respondent's announcement to employ-
ees on August 8, 1984, the working foreman's position
was "created to ease the workload and improve commu-
nications between management and employees." The an-
nouncement states that "I am sure that you all realize his
job is not a piece of cake. I urge you to give him your
full cooperation." In its letter to the Union on the same
date confirming the agreement between the parties creat-
ing this position, Respondent referred to this position as
"a middle management position only without hiring,
firing, and disciplinary privileges. This position is created
with the intent of relieving our present lack of supervi-
sion and to aid the flow of production." Although there
is no evidence that Julian ever hired or fired employees,
Respondent's records revealed that he in fact issued writ-
ten warnings and suspended an employee in late 1986. In
a letter from Ray Faucher Jr. to Union Representative
Pellignno dated January 20, 1987, Faucher states in part:
"On the morning of December 18, 1986 at approximately
12:30 a.m., employee John Dolloff showed up at the
plant with a friend. Mr. Dolloff was serving a suspension
for repeated absences and tardiness. At this time, howev-
er, he was obviously intoxicated and was looking for
foreman Jerry Julian, the person who issued the suspen-
sion." Julian admitted issuing some written and verbal
warnings.
Julian testified that he merely prepared and signed
warnings and then submitted them to either admitted Su-
pervisors Peter Strik or Dana Faucher for final determi-
nation. He also testified that his recommendations re-
garding warnings were adopted by the supervisors 80
percent of the time. Neither Stnk nor Dana Faucher tes-
tified. As noted by the General Counsel, there is no evi-
dence concerning what, if any, independent investigation
was conducted by these two supervisors before they
adopted Julian's recommendations.
It is Respondent's practice that all warnings are to be
countersigned by a higher level of supervision so that
even warnings issued by admitted supervisors bear two
signatures. Julian further testified that he called employ-
ee Robert Beaureguard into the production supervisor's
office, with union steward Gloria Albetski present, to
warn Beaureguard about his performance before consult-
ing higher management. Beaureguard received a written
warning over this incident. Albetski, the steward, testi-
fied that Julian kept her appraised of all warnings he
issued. Julian asserts that the admitted supervisors deter-
mined when an employee's absence or tardiness became
excessive and merely instructed him to watch the em-
ployee and write him up if he was absent or late again.
Julian, however, admitted recommending discipline him-
self to his superiors when he thought an employee's ab-
sence was excessive and created hardships for other em-
261
ployees. Union steward Gloria Albetski testified that she
spoke to Julian about the warnings he had issued and
brought the matter to the attention of Pelligrino . Julian
stopped issuing written warnings after she spoke to him.
No date was given for this conversation but as noted, the
exhibits in the record indicate that Julian was still issuing
warnings as late as December 1986.
Julian was generally responsible for ensuring that pro-
duction ran smoothly and quality was good . He was re-
sponsible for opening the plant at the start of the first
shift-anywhere from 10 p . m. until midnight-and for
preparing the production schedule which tells the em-
ployees the amount and kind of products to make in
order to fill Respondent 's orders for that day. These
schedules were filled out pursuant to guidelines set out
by Julian 's supervisors . He was usually the first person to
arrive at the plant and was the only person in charge for
up to 5 or 6 hours before Strik arrived . During that time,
as many as 10 employees on the production crew, as
well as 3 to 4 sanitation and maintenance employees
would be in the plant with no other supervision. If an
employee had a problem during this time, he or she
would bring it to Julian 's attention. Julian testified he
could let an employee leave early if they had an emer-
gency. If an employee called in sick , or was late or was
otherwise absent, Julian would be responsible for record-
ing the absence . Julian would than fill-in himself or call
in a replacement from the second -shift crew . On those
occasions when there was more than one person out
Julian would call Strik who would come and take his
place watching the plant while Julian would filhn for
one of the absent people . He would then call in the
second person that had been designated to fill in for ab-
sences. Employee witnesses testified Julian generally
walked around overseeing production and also worked
in the production manager 's office. They estimated that
he spent as much as 80 percent of his time supervising
other employees rather than doing production work.
Employees also testified they believed that they had to
listen to what Julian told them and could not refuse an
order from him when he was in charge.
Julian received an additional $30 per week to compen-
sate him for his additional responsibilities . Respondent
had offered to make Julian a salaried supervisor before
he became working foreman . He declined this offer be-
cause he did not want to give up overtime and his union
pension . Before Julian became working foreman, Re-
spondent employed another individual, Dan Blain, as a
salaried , nonunion production supervisor . Witness Le-
febvre testified that Blain did many of the same things
that Julian did , including filling in for an employee who
was out and for whom there was no replacement. Ray
Faucher Jr . testified that Blain did not work as a supervi-
sor at Respondent 's facility for almost a year before
Julian was made working foreman . He also testified that
because business was down , Respondent could cover
both shifts with just two supervisors . Respondent also
employs a salaried , nonunion production supervisor, Igor
Iwanczuk , on second shift who works from approximate-
ly noon to 8 p.m. Iwanczuk also had his warnings co-
signed by Strik before issuing.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 2(11) of the Act defines a supervisor as one
who has:
Authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign , reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such
authority is not of a merely routine or clerical
nature, but would require the use of independent
judgment.
An individual need process only one of the criteria set
out above in Section 2(11) to qualify as a supervisor.
However, supervisory status exists only if the power is
exercised with independent judgment on behalf of man-
agement , and not in a routine or clerical manner.
From the evidence of record it appears clear that
Julian does not have the authority in the interest of the
Employer to hire, layoff, recall, promote, discharge, or
reward other employees. There is evidence that he has
exercised some limited authority to transfer or assign
other employees Ray Faucher Jr. testified that if Julian's
superior, Peter Strik, is on vacation the normal plan
would be for Faucher Jr. to set up the work schedule.
However, he testified that Julian may at times have to
implement it because he sees people Faucher does not
ordinarily see By this he explained he meant Julian
might assign work and notify people of the fact that they
have a change in status at that point or to come in at a
different time, depending on the day of the week, the
time of year and what not. Presumably, Julian would be
exercising independent judgment in this function because
he would select the people necessary to do the work at
times he chose.
It appears clear from the evidence that Julian had the
authority to discipline other employees. In his role,
Julian wrote out, signed, and issued written warnings to
employees. In at least one case, involving employee
Beauregard, Julian issued the warning in the production
supervisor's office, in the presence of the union steward,
without first consulting with anyone higher in the chain
of supervision. Julian also issued verbal warnings to em-
ployees with the verbal warning being the first step in
the Respondent's system of discipline. Respondent's posi-
tion in respect to Julian's action in this regard is that it
did not involve the exercise of any independent judg-
ment because his warnings had to be countersigned by
one of Respondent's admitted supervisors. On the other
hand, it is clear that all warnings, even those issued by
admitted supervisors, were required to be countersigned
by a superior. Julian's affidavit given to the Board indi-
cates that as many as 80 percent of his recommendations
regarding warnings are adopted and signed by higher
management . I agree with the position of General Coun-
sel that in the case of Beauregard, Julian clearly acted in-
dependently when he called the employee in the office
without first consulting Strik.
Respondent asserts that warnings signed by Julian re-
lating to attendance involved no exercise of independent
judgment because either Strik or Dana Faucher, admit-
ted supervisors, made the decision that employees' ab-
sences or tardiness had been excessive and instructed
Julian to issue the warning. Julian testified that Strik and
Faucher would tell him to watch a particular employee
with an attendance problem and to issue the warning the
next time the employee was absent or late. He also testi-
fied that he recommended such warnings on his own
when he felt an employee's absence was excessive. In
this regard, he testified he had made decisions to recom-
mend discipline for employees because of absences in
certain instances because it was a hardship on fellow em-
ployees as well as himself. Lastly, with regard to disci-
pline, there is evidence in the record that Julian suspend-
ed employee John Dolloff. Although Julian could not re-
member the circumstances of the matter, Respondent's
letter to the Union regarding Dolloff recites that "Dol-
loff was looking for foreman Jerry Julian the person who
issued the suspension." I believe with respect to the
matter of discipline, Julian had, until at least December
1986, authority from management to act independently in
issuing some forms of discipline. Clearly at all times ma-
terial to this proceeding, he had the authority to effec-
tively recommend discipline which upper level manage-
ment followed in the vast majority of cases.
I also find from the evidence that Julian had the au-
thority to responsibly direct other employees Julian was
the first to arrive for work on his shift, set up the work
by preparing the production schedule for the day, and
spent the majority of his time observing and overseeing
employees and making sure the production ran smoothly
and with good quality. Julian testified that he had the au-
thority to do whatever needed to be done to get produc-
tion out and to ensure good quality. Other employees
testified in the proceeding that Julian was "in charge"
and they felt they must follow his instructions. I find of
significance that for a substantial portion of his shift
Julian was the only person in authority at Respondent's
facility, with as many as 10 to 14 employees working
under him. Even Julian described his job as "watching
the plant."
I agree with General Counsel's position that further
evidence of Julian's supervisory status was that he was
higher paid than other employees, receiving an extra $30
a week as compensation for his additional responsibilities,
and that he worked in the same production supervisor's
office used by Strik and Iwanczuk. Respondent's letter to
the Union when the position was created, as well as the
notice to employees on the same date, indicates that
Julian was to eliminate a current "lack of supervision."
Julian was originally offered a salaried position out of
the unit and declined the offer because he did not want
to give up overtime and union pension benefits.
In conclusion, I find that Julian was at all times mate-
rial to this decision a statutory supervisor because he had
the authority, in the interest of the employer, to disci-
pline other employees and to responsibly direct them,
and to effectively recommend discipline exercising the
use of independent judgment.
SUPERIOR BAKERY
Did Respondent Have a good-faith doubt of the
Union's majority status at the time it withdrew
recognition of the Union on February 18, 1987
As the certified exclusive collective-bargaining repre-
sentative of Respondent's production and maintenance
employees and drivers, at the expiration of its most
recent contract, the Union was entitled to a rebuttable
presumption of continuing majority status. Respondent
has the burden of establishing either that the Union lost
majority support, or that Respondent had a good-faith
doubt, based on objective considerations, of the Union's
continuing majority support.
When it withdrew recognition on February 18, Re-
spondent relied on the decertification petition it had re-
ceived in the morning , bearing 20 signatures , as the basis
for its doubt of the Union's continuing majority One of
the signatures was that of Julian, whom I have found to
be a statutory supervisor. In addition, the Respondent
does not include employee Gertrude Fafard as a unit em-
ployee in determining majority.
There is no dispute that Fafard had worked as a bar-
gaining unit employee until she was hospitalized as a
result of a nervous breakdown in late 1985. As noted ear-
lier in this decision, Faucher testified that he considered
Fafard's employment to have been terminated when he
learned of her medical condition from Fafard's sister-in-
law in June or July 1985 Respondent asserts that no evi-
dence was introduced that the Company had a practice
of granting extended leaves of absence for medical or
any other reason . It also argues that no evidence was in-
troduced that Fafard continued to receive any of the
normal employee benefits. Faucher testified that it was a
company practice that no formal separation notice was
sent to Fafard or to any other employee terminated
except for disciplinary reasons. It also argues that under
the contract between Respondent and the Union, Fa-
fard's termination was in the nature of a resignation and
her seniority would have been "deemed terminated."
The General Counsel points out that no notice of Fa-
fard's termination was sent to Fafard, the Union, or Re-
spondent's own bookkeeper and supervisors No notation
of discharge was placed in Fafard's personnel file.
Faucher did not tell Fafard's sister-in-law that he was
terminating her. In conclusion , there is no evidence
whatsoever that Fafard in fact was terminated except
Faucher's testimony. As noted briefly above, the General
Counsel introduced an employee status report submitted
to the Union for the week ending February 14, 1987, on
which Fafard's name appears. Faucher explained that the
document was prepared by the Company's bookkeeper
who was never notified of Fafard's termination. Also in-
troduced by General Counsel was the Company's hand-
written work schedules for January 1987. These sched-
ules set forth the hours of work for each production em-
ployee. Fafard's name appears on each schedule, though
no hours are listed next to her name and no reference is
made to a medical leave or excused absence. Faucher ex-
plained that he did not see the work schedules and he
had simply neglected to inform the production manager
who drew up the work schedules that Fafard had been
terminated. I find this difficult to believe as Faucher had
testified on a different topic that he sets up the work
263
schedules when his supervisors are on vacation. As Fa-
fard's name had apparently appeared on every work
schedule since her departure in 1985, certainly if Faucher
prepared any work schedule as indicated by his testimo-
ny at a different point, he would have seen her name
there. Apparently, the bookkeeper and the production
supervisor considered Fafard to still be an employee of
the Company as they continued to place her name on the
work schedules and on reports to the Union.
The General Counsel argues and I agree that the
Board's established rule regarding eligibility of absent
employees to vote in Board-conducted elections is also
applicable to the situation here, where it must be deter-
mined whether the employee petition submitted to Re-
spondent, and on which it relied in withdrawing recogni-
tion from the Union, demonstrates a loss of union sup-
port among the majority of unit employees. An employ-
ee on sick leave is presumed to continue in such status
unless and until the presumption is rebutted by an affirm-
ative showing that the employee has been discharged or
has resigned Red Arrow Freight Lines, 278 NLRB 965
(1986). Atlanta Dairy Cooperatives, 283 NLRB 327 (1987).
I do not believe that Faucher's testimony that he termi-
nated Fafard's employment after the conversation with
Fafard's sister-in-law constitutes affirmative evidence of
resignation or termination. Other than this testimony
there is absolutely no indicia Fafard was terminated and,
to the contrary, there is clear written evidence that she
was still carried as an employee, presumably with the ex-
pectation or at least the right to return to employment
when and if she was able. Also as noted by the General
Counsel, Fafard's eligibility to receive benefits under the
collective-bargaining agreement as a sick employee has
apparently never been terminated. Based on all the evi-
dence presented, it appears that everyone with the possi-
ble exception of Faucher still considered Fafard an em-
ployee and Faucher, for whatever reason , did not bother
until the time of hearing to share his decision to termi-
nate with anyone else in the Company. Based on the
credible evidence of record, I cannot find that Fafard
was ever terminated or resigned from the Company and,
under the holding in Red Arrow Freight Lines, supra, was
still a part of the unit
Including Fafard, Respondent would have had a total
of 40 statutory employees and 1 statutory supervisory,
Julian, for a total of 41 persons, in the unit on February
18.
The General Counsel contends that Julian' s signature
should not be counted as he was a statutory supervisor.
In support of this position, the General Counsel draws an
analogy between the present situation and the situation
of a decertification petition filed by a supervisor. The
General Counsel cites authority for the proposition fact
that a decertification petition filed by a supervisor does
not raise a valid question concerning representation even
if that supervisor is a unit member. He also cites case law
for the proposition that the Board will not count cards
signed or solicited by supervisors in determining whether
a representation petition is supported by a sufficient
showing of interest. Lastly, the General Counsel cites
cases to the effect that a statutory supervisor will not be
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
permitted to vote in a Board-conducted election even
when the union and employer agree to include him in
the unit. He argues that the rationale of these cases is ap-
plicable here, i e., that it would contravene the purposes
and policies of the Act to allow supervisors to cast a
vote which might be determinative of a union's represen-
tational status.
On the other hand, Respondent offers that Montgomery
Ward & Co., 115 NLRB 645, 647 (1956), holds that it is
permissible for statutory supervisors who are included in
the bargaining unit to initiate, circulate, and sign any
union petition, so long as there is no evidence that the
employer authorized or encouraged the activity of the
unit supervisor. Respondent also cites the recent case of
Indiana Cabinet Co., 275 NLRB 1209 (1985). Indiana
Cabinet, like the instant case, involved an antiunion peti-
tion which formed the basis of the company's withdraw-
al of recognition from the union. Also like the instant
case, in Indiana Cabinet four out of five alleged supervi-
sors had signed the petition Indiana Cabinet does appear
to affirmatively hold that signatures of bargaining unit
supervisors are valid and are to be counted in determin-
ing whether 50 percent or more of the bargaining unit
members signed the petition. Based on this case, and in
light of the fact that there are no surrounding unfair
labor practice charges found against Respondent with re-
spect to the petition, and no direct knowledge by Re-
spondent of the actions of Julian in signing the petition
prior to his signing, I feel constrained to hold that Ju-
lian's signature can be counted on the decertification pe-
tition.
On the other hand, the Board-in Indiana Cabinet ap-
pears to also hold that signatures secured or solicited by
a bargaining unit statutory supervisor are tainted and
should not be counted. Although the Board in Indiana
Cabinet indicates that it would have ruled in this fashion
in that proceeding, it was constrained from doing so by a
stipulation entered into by the parties in that proceeding.
However, I believe that the decision of the Board sup-
ports the position of the General Counsel that the signa-
tures of employees Therrien and St. Cyr should not be
counted because they were directly solicited by Supervi-
sor Julian. The circumstances surrounding Julian's solici-
tation of St. Cyr's signature demonstrates why her signa-
ture should not be counted. Julian had issued a warning
to St. Cyr in November, 3 months prior to soliciting her
signature on the new decertification petition. I agree
with General Counsel that it is doubtful that St. Cyr
would have viewed Julian as a mere fellow employee,
rather than a member of management when he visited
her house with the petition and asked her to sign on the
morning of February 18. Moreover, as noted earlier, em-
ployees testifying in this proceeding perceived Julian as
being in charge of them and felt constrained to follow
his instructions as they would any other supervisor. I do
not believe that employees Therrien and St. Cyr could
have regarded Julian as "one of themselves," as contem-
plated in Montgomery Ward, supra. See Dominguez Valley
Hospital, 287 NLRB 149 (1987).
On this point, I would also agree with General Coun-
sel that if at a later date it is decided by the Board that
Julian is not a statutory supervisor, I would still consider
him to be an agent of Respondent as Respondent placed
him in a position where employees could reasonably be-
lieve he acted on behalf of management. Sears Roebuck
Co., 284 NLRB 149 (1987).
When the signatures of Therrien and St. Cyr are dis-
counted, the petition is left with 18 signatures in the unit
of'40 employees and 1 statutory supervisor. This is insuf-
ficient to establish the Union's actual loss of majority
support. Respondent argues that at the time of withdraw-
al, it had a good-faith doubt based on objective consider-
ations of the Union's continued majority status. It bases
this argument on (1) the fact that it obviously considered
that the signatures of Therrien and St. Cyr to be valid
and there is no showing that it had knowledge that their
signatures were solicited by Julian, (2) that Faucher did
not consider Fafard to be in the bargaining unit since he
considered her to have been terminated in 1985, and (3)
that it considered Julian to be a member of the bargain-
ing unit and that his vote would count.
The argument of Respondent does,not persuade me for
two reasons. The first is that when the signatures of
Therrien and St. Cyr, which I find certainly could have
been coerced signatures, are not counted, the Employer
has only 18 signatures in a unit of 40 employees, leaving
out Fafard as Respondent would do. It is thus really un-
clear as to what the majority of the Respondent's em-
ployees want in respect to union representation. Second,
the decision to withdraw was made with the availability
of labor counsel. It would appear to me that in the cir-
cumstances, some question about the supervisory status
and validity of Julian's vote would have come into ques-
tion and at least a cursory investigation conducted to see
what the Company's records showed was the employee
complement. Had the investigation been done, it would
have become apparent to the Respondent that Fafard
was still carried on a number of written lists as an em-
ployee, albeit being an absent one. However, there ap-
pears to have been very little, if any, thought given by
Respondent to either of these considerations or to check-
ing the accuracy of the signatures or the circumstances
under which they were secured. Immediately on receiv-
ing the petition, Respondent announced withdrawal of
recognition from the Union and on the very next day
held a meeting which resulted in the formation of an em-
ployee committee to replace the Union. Considering the
speed with which Respondent acted on a bare bones, un-
verified petition which contained the name of a person
who could be easily considered as a statutory supervisor,
I do not find that the Respondent's withdrawal was the
result of a good-faith doubt of the Union's continued ma-
jority status based on objective considerations. I there-
fore find and conclude that the withdrawal of recogni-
tion was unlawful and in violation of Section,8( a)(1) and
(5) of the Act.
Did Respondent violate Section 8(a)(2) of the Act
by rendering aid and assistance to the employee
committee?
An employer violates Section 8(a)(2) of the Act by
forming an employee committee to deal with it regarding
its employees' terms and conditions of employment or to
SUPERIOR BAKERY
adjust grievances. It is also unlawful for an employer to
render aid and assistance in the formation and adminis-
tration of a labor organization among its employees. The
parties have stipulated that the employee committee
formed after the February 19 meeting satisfies the Act's
definition of a labor organization. They have further stip-
ulated to the facts regarding Julian 's actions after the
February 19 meeting with respect to the formation of the
committee, the election of the employee representatives,
and his meetings with these representatives at Respond-
ent's facility to formulate the proposals which were then
discussed with Respondent 's upper level management.
Because Julian was a statutory supervisor at the time
these events occurred, his aid and assistance to the em-
ployees would be attributable to Respondent and unlaw-
ful under the Act. The General Counsel urges that the
fact that Julian was also a member of the bargaining unit
at the time would not absolve Respondent of responsibil-
ity for its actions because of evidence which establishes
Respondent encouraged, authorized , and ratified Julian's
conduct with respect to the employee committee.
The General Counsel argues that at the February 19
meeting Ray Faucher Jr. suggested that employees form
such a committee to represent their interest in dealing
with management. He points out that as soon as the
Fauchers left the room, Julian began organizing the com-
mittee. The election of representatives occurred at Re-
spondent's facility the next day. The committee's first
meeting occurred in the production supervisor's office
with Julian assisting the committee and formulating their
proposals, followed immediately by a meeting with Re-
spondent to discuss these proposals. The General Coun-
sel contends that these circumstances would neccessarily
lead employees to believe that Julian was acting for, and
on behalf of, management.
The only factual dispute on this issue relates to Ray
Faucher Jr.'s comments at the February 19 meeting on
the subject of an employees' committee. As noted earlier,
Faucher Jr. testified that his statement regarding the em-
ployee committee was initiated by employee questions.
On cross-examination on this point, Faucher testified as
follows:
Q. Now you testified that you told the employees
that there would be no change in the operations?
A. Right.
Q. But there was some questions from some of
the employees there?
A. There were a lot of questions.
Q. Do you recall who it was that asked what was
going to happen now that the union was gone?
A. At least two to three people. I couldn't tell
you exactly who it was.
Q. You don't have any recollection at this time
who asked those questions?
A. For some reason , Leo Duchesne sticks in my
mind . He may have been one, but I don 't know for
sure . But it was a general feeling that everybody
was-not everybody, but there was a number of
people concerned what was going to happen with-
out a union.
265
Q. And you testified that in response to some of
these questions, you told them that if you want to
have a grievance system , we will set one up?
A. They were wondering how they were going
to handle the grievance system , and I said well, we
can set up some type of system, if that's what you
want, to try to ease their fears.
Q. Who was it that brought up the subject of a
committee?
A. At this time, they were looking for some type
of system. I said that if we could appoint a repre-
sentative or you guys could elect a representative to
find out, you know, where we stand. If there's a
problem on any shift, then we could all get together
and talk about it, resolve it.
Q. Well who, specifically, brought up the subject
of that?
A. I believe it was in response to a question.
Somebody else raised the issue , and I followed
through on the issue.
Q. Well, that's the question I'm asking. Who was
the person who made the question?
A. I don't recall.
Q. Now, did you use the word committee first?
Was it your suggestion that a committee might be a
way that employees could handle grievance?
A. A committee or staff or something to that
effect, yes.
According to witness Albetski, at the meeting Produc-
tion Manager Strik "admitted that some places they do
have an employee committee. The employees take care
of it." Albetski also testified that Ray Faucher Jr. said
that "the Company would have the same thing and that
the Company would work with employees if they had
any grievances, that the employees could go see the
committee."
Employee Lefebvre testified that Faucher said the em-
ployees "would start a committee, would vote for a com-
mittee , and chose employees from each shift and that
there would be one employee from each shift that would
be on the committee "
I find that Faucher Jr.'s statements, even in response
to questions, set the stage for the formation of the em-
ployee committee. That, on his departure, the committee
was almost immediately set up under the direction of Su-
pervisor Julian could only indicate that the employees
would believe that the Respondent encouraged, author-
ized, and ratified Julian's action. I believe that the Re-
spondent's actions and in particular the statements by
Faucher Jr. and his Production Manager Strik, which
first set forth the idea of the employee committee as an
alternative for the Union for handling employee prob-
lems, and the followup formation of the committee under
the direction of its supervisor, Julian, constitutes a viola-
tion of Section 8(a)(2) of the Act.
CONCLUSIONS OF LAW
1. Respondent Superior Bakery , Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Local. 50, Bakery, Confectionery & Tobacco Work-
ers, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act:
All full-time and regular part-time employees in-
cluding leadmen, sponge mixers, dough mixer, di-
vider operators, reliefman, oven leadman, shipper,
shipper/yard person, assistant shipper/yard person,
pack machine operator, pack machine operator
helper, transport driver, straight driver, mainte-
nance man and general help ; but excluding all other
employees, casual part-time employees not assigned
to a regular part-time work schedule, and guards,
professional employees and supervisors as defined in
the Act.
tive-bargaining agreement between the Union and the
Respondent requiring: (1) that the Employer reinstate the
health insurance and pension plans that were in effect
prior to withdrawal of recognition, (2) that any employ-
ee who suffered any loss of benefits as a result of the
substitution of the Company for the union health insur-
ance program be made whole, (3) that the Employer pay
to the pension fund such contributions plus interest that
would have been made under the pension plan from the
date that the Employer ceased payment to the date that
it resumes payments, and (4) that the Employer compen-
sate the Union for union dues that would have been
checked off pursuant to written dues-deduction authori-
zations for all employees who have not terminated such
authorizations, with interest.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
4. The Union is now and has been at all times material
herein the exclusive representative of all the employees
in the above-described unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Working Foreman Gerard Julian was, at all times
material herein , a supervisor within the meaning of Sec-
tion 2(11) of the Act and an agent of Respondent at all
times material to this proceeding within the meaning of
Section 2(13) of the Act.
6. By soliciting signatures on a decertification petition
through its statutory supervisor and agent, Gerard
Julian, by withdrawing recognition from the Union on
February 18, 1987, based on the decertification petition it
had received on that date, and by refusing to bargain
with the Union as the exclusive bargaining representative
of all employees in the appropriate unit set out above,
the Respondent has violated, and is violating Section
8(a)(1) and (5) of the Act. By the act of Ray Faucher
Jr.'s suggestion on February 19 that employees form a
committee, and by the subsequent actions of its statutory
supervisor and agent, Gerard Julian, to establish the em-
ployee committee and to assist it in the preparation of
contract proposals, Respondent violated Section 8(a)(2)
of the Act.
7. The employee committee formed at the suggestion
of and with the assistance of the Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.
8. Respondent did not commit any other unfair labor
practice as alleged in the complaint.
9. The foregoing unfair labor practices are unfair labor
practice affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (2), and (5)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act, including
restoring the status quo ante that existed prior to with-
drawal of recognition of the Union and the discontinu-
ance of certain benefits called for under the last collec-
ORDER
The Respondent , Superior Bakery, Inc., North Gros-
venordale , Connecticut , its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Soliciting through statutory supervisors or other
agents of Respondent 's management signatures for decer-
tification petitions seeking withdrawal of recognition of
the Union as the certified bargaining representative for
Respondent 's employees in the appropriate unit.
(b) Withdrawing recognition and continuing to refuse
to recognize Local 50, Bakery, Confectionery & Tobac-
co Workers , AFL-CIO as the exclusive bargaining rep-
resentative for the employees in the appropriate collec-
tive-bargaining unit.
(c) Rendering aid and assistance to the employee com-
mittee established as an alternative to the Union as the
exclusive bargaining representative of the employees in
the described unit.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effecuate the policies of the Act
(a) Withdraw recognition from the employee commit-
tee established to take the place of the Union as the ex-
clusive bargaining representative of its employees in the
appropriate unit and to recognize and bargain, on re-
quest, with the Union with respect to any changes in
rates of pay and other terms and conditions of employ-
ment.
(b) Restore the status quo ante with respect to the
Union by reinstating the health insurance and pension
plans that were in effect prior to the withdrawal of rec-
ognition of the Union, make whole any employee who
suffered any loss of benefits as a result of the substitution
of the company plan for the union health insurance pro-
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SUPERIOR BAKERY 267
gram , pay to the union pension fund such contributions
plus interest that would have been made under the pen-
sion plan from the date the Employer ceased payment to
the date that it resumes payments , and compensate the
Union for union dues that would have been checked off
pursuant to deduction authorizations for all employees
who have not terminated such authorizations, plus inter-
est.
(c) Post at its facility in North Grosvenordale, Con-
necticut , copies of the the notices marked "Appendix."3
Copies of the notice on forms provided by the Regional
Director for Region 39, after being signed by Respond-
ent's authorized representative , shall be posted by Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered , defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
9 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 Nation - the United States Court of Appeals Enforcing an Order of the National
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Labor Relations Board "