Baptista's Bakery

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 547 (N.L.R.B. 2008)

BAPTISTA’S BAKERY, INC.
352 NLRB No. 72
547
Baptista’s Bakery, Inc. and Teamsters Local Union
No. 344 Sales and Service Industry, affiliated
with the International Brotherhood of Team-
sters. Cases 30–CA–17104, 30–CA–17268, and
30–RC–6604
May 30, 2008
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 22, 2006, Administrative Law Judge
Mark D. Rubin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief to the Respondent’s excep-
tions. The Respondent filed a reply brief and an answer-
ing brief to the General Counsel’s cross-exceptions.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions in part, to reverse them in part, and
to adopt the recommended Order as modified and set
forth in full below.2

1 On April 18, 2007, the Board issued an Order granting the General
Counsel’s motion to strike the Respondent’s exceptions 4 through 9.
Accordingly, there are no exceptions to the independent 8(a)(1) viola-
tions found by the judge, to the judge’s rejection of the Respondent’s
10(b) defense, or to the judge’s recommendation for a second election
based on objectionable conduct.
In addition, there are no exceptions to the judge’s dismissal of alle-
gations that the Respondent violated the Act by disciplining employee
Donna McCall; terminating employee Kathy Mankin; stating that the
Respondent had made mistakes but was trying to change things and
make them better; asking an employee for suggestions to make the
company better; restoring an employee’s vacation benefit; comparing
unionization to crack addiction; implying that the Respondent was
engaging in surveillance; offering to disclose confidential information
from an employee’s personnel file; and soliciting grievances in a March
23, 2005 letter.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
The General Counsel excepts to the judge’s dismissal of an allega-
tion that the Respondent violated Sec. 8(a)(1) by providing employees
with free jackets in order to discourage support for the Union. We find
The judge found that the Respondent violated Section
8(a)(3) and (1) by laying off five employees on February
2, 2005, in order to discourage union activity. The judge
dismissed an allegation that a sixth employee, Kathi
Szuszka, was also unlawfully laid off. We adopt the
judge’s dismissal with respect to Szuszka, because we
agree with the judge that she was not, in fact, laid off.
As to the other five employees, we find that the Respon-
dent proved that it would have laid them off for legiti-
mate business reasons even in the absence of union activ-
ity. Accordingly, we reverse the judge and dismiss the
allegation that the layoffs were unlawful.
I. FACTUAL BACKGROUND
Since 1999, the Respondent has been engaged in pro-
ducing snack products at its facility in Franklin, Wiscon-
sin. The snack business is seasonal, and the Respondent
experiences a downturn every winter after the Super
Bowl. Until the events at issue in 2005, the Respondent
had not laid off employees as a result of the seasonal
downturn. Instead, during the downturn, the Respondent
caught up on maintenance, reduced the number of tempo-
rary workers, shut down the plant for a few days, and/or
encouraged employees to take vacations. However, lay-
offs for economic reasons were not unprecedented. In
2002, the Respondent was producing a product line
called “Lunch Munchers” for General Mills. In Novem-
ber and December 2002, when the product line was dis-
continued, the Respondent permanently laid off about
seven employees.
A. The Respondent’s 2004 Expansion of Operations
Until 2004, the Respondent primarily produced bread-
sticks and bread toasts for General Mills, but the Re-
spondent was not profitable. In mid-2003, the Respon-
dent hired Tom Howe as president. Around the second
quarter of 2004, Howe decided to expand the business by
seeking a longer term contract with General Mills and by
producing a broader range of products for additional cus-
tomers, primarily Old Dutch and Weight Watchers, to be
sold under the customers’ labels.3 Some of these prod-
ucts were packaged in individual serving sizes, rather
than in bulk like the General Mills products. The Re-
spondent purchased new packaging machines and new

it unnecessary to pass on that exception. The judge found that the
Respondent violated Sec. 8(a)(1) by providing other benefits to em-
ployees, and there are no exceptions to those findings. An additional
violation would be cumulative and would not materially affect the
remedy.
We shall modify the judge’s conclusions of law and recommended
Order and substitute a new notice to conform to our findings and to the
Board’s standard remedial language.
3 The witnesses referred to these types of products as “private label”
products.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD548
equipment that increased its baking capacity by 50 per-
cent. Because the Respondent was producing a greater
variety of products, its production process became more
complex. The Respondent’s production volume doubled.
In July 2004, the Respondent implemented a new work
schedule to accommodate its increased workload. The
Respondent changed from three 8-hour shifts to four 12-
hour shifts (two from 6 a.m. to 6 p.m. and two from 6
p.m. to 6 a.m.). Under the new schedule, the plant oper-
ated 24 hours a day, 7 days a week. Employees worked
3 days in 1 week and 4 days the next. A memorandum to
employees announcing the new schedule stated in part:
“[W]e realize that continuing a 6 & 7 day operation re-
quires adding more permanent full-time positions . . . .
This 4-shift Rotation will continue as long as our orders
support working 6–7 production days every week and as
long as this schedule is effective in satisfying our cus-
tomers.” The Respondent also hired new employees and
some new managers to handle the increase in produc-
tion.4
B. The 2005 Shift Restructuring and Layoffs
As discussed in more detail in section III below, sales
of the Weight Watchers and Old Dutch products fell
short of expectations. By early 2005, the Respondent
was also on the brink of its annual post-Super Bowl
slowdown. Around the week of January 24, the Respon-
dent’s management began to discuss eliminating a shift
and laying off some employees.
The dispute in this case centers on the Respondent’s
reasons for the layoffs. Tom Mayer, the Respondent’s
vice president of human resources and operating ser-
vices, testified that during management discussions about
the potential restructuring, President Howe referred to a
“cyclical” slowdown, but also “foresaw that this would
go on for quite a while.” Mayer testified that the Re-
spondent had used methods other than layoffs in re-
sponse to past seasonal downturns. However, Mayer
also emphasized that “[w]e had a different business in
the past,” that “[w]e did not have cyclical slowdowns in
the past like we do now,” and that “[p]roducing private
label for other customers is much different than produc-
ing our own brand.” Marlenea Jackson, the Respon-
dent’s quality assurance and sanitation manager, testified
that both Howe and the Respondent’s vice president of
sales said that “sales were falling off. Specifically

4 Before 2004, the Respondent had regularly used a small number of
temporary workers, primarily to package products. Tom Mayer, the
Respondent’s vice president of human resources and operating services,
testified that the use of temporary workers in packaging increased in
2004 when the Respondent began its private label production. The
number of temporary workers needed also became less predictable,
because it depended on the particular mix of products being produced.
Weight Watchers was not meeting the projected numbers
that we thought that it would.” Jackson gave similar
testimony when discussing an early 2005 “change of
direction” in her department’s budget. She stated that
“we were having some sales issues and then also the
slow period of the year was coming up” (emphasis
added). She recalled being told that the “Weight Watch-
ers projections . . . were not where they were supposed to
be” and that there was a decline in sales to Old Dutch.
Ultimately, the Respondent decided to return to a 3-
shift operation, with 8-hour shifts operating 5 days a
week, and to lay off certain employees. Management
representatives testified that once the Respondent de-
cided that layoffs would be necessary, the selection of
individual employees was based on performance and, in
some cases, on a determination that certain positions
were no longer necessary under the new shift structure.
On February 2, the Respondent permanently laid off
five of the six alleged discriminatees: packaging em-
ployees George Ann Bohen and Lynda Starrett, bakery
process operator Dennis Sobiech, sanitation employee
Judy Zullner, and truck loader John Crowley.5 The Re-
spondent also laid off a shift supervisor. Contemporane-
ously, Howe issued a memorandum to “all shop employ-
ees,” stating in relevant part:
As all of you have noticed from our work activity, we
are experiencing the annual post-holiday lull in orders
that always affects the snack industry, something I ex-
plained in my notice of July 9, 2004, when announcing
our change to a 7/24 two-week rotation. This slow-
down is common throughout the snack industry, and
snack companies typically adjust their work schedules,
reduce their work weeks, and schedule plant shut-
downs.
As a result of this slowdown, it is necessary that we
remain flexible and also make adjustments in our work
schedule to reflect our current and near-term customer
demands.
Our first step is to change from the 7/24 two-week rota-
tion . . . to a 5/24 week with three 8-hour shifts. . . .
. . . .
The second step we’ve taken, and one that we regret
was necessary, is the layoff of some members of our
workforce to reflect our current and near-term business
level and added capacity going forward. These in-
volved tough decisions, we provided those people some

5 The sixth alleged discriminatee is Kathi Szuszka. As noted above,
we affirm the judge’s finding that she was not laid off.
BAPTISTA’S BAKERY, INC. 549
assistance to help during their transition to new oppor-
tunities, and our focus was on retaining people possess-
ing the skills, knowledge, flexibility, reliability and atti-
tude that provide the best foundation for building for
the future. [Emphasis in original.]
Please do not read anything into these changes beyond
it being a temporary seasonal adjustment. Our business
is growing, we have made significant investment in
baking and packaging equipment to foster that growth,
and potential customers are excited about what Bap-
tista’s [has] to offer.
Thanks to everyone for all of your efforts and for your
continuing flexibility. 2005 will be a great year for
Baptista’s and we look forward to all of you making a
significant contribution to Baptista’s growth and future
prospects.
Since February 2005, the Respondent has never re-
turned to a four-shift operation. At some point in late
2005, the Respondent further decreased its operation to
two 12-hour shifts, but it had returned to three 8-hour
shifts by May 2006. The Old Dutch product line was
ultimately discontinued in January 2006.
C. The Union Campaign
During the weeks preceding the layoffs, employees
had begun meeting with the Union to discuss an organiz-
ing campaign. The first contact with the Union was on
January 12. On January 20 and 22, the Union held meet-
ings with employees at the Union’s offices. The Union’s
representative told the employees that, for the time being,
they should keep the organizing drive to themselves, and
tell only other employees they thought might be inter-
ested. On February 7, after discussing the matter with
employees, the Union mailed and faxed a letter to Howe
listing the names of employees on the Union’s organiz-
ing committee. The Union filed a representation petition
on February 8 and an unfair labor practice charge on
February 11, alleging that the layoffs violated Section
8(a)(3).
The election was held on March 23. The vote was 21
for the Union and 22 against, with 3 challenged ballots,
which were cast by alleged discriminatees Bohen,
Szuszka, and Zullner. The Union filed objections, and
the representation case and unfair labor practice case
were consolidated.
II. JUDGE’S DECISION AND EXCEPTIONS
Applying Wright Line,6 the judge found that the Gen-
eral Counsel carried his initial burden to prove that em-
ployee union activity was a motivating factor in the lay-
offs. The judge observed that the General Counsel was
proceeding under a “mass layoff” theory: that the Re-
spondent ordered the layoff to discourage union activity
in general or to retaliate against the union activity of
some, and therefore it was not necessary for the General
Counsel to prove union activity or employer knowledge
as to each of the alleged discriminatees. See Davis Su-
permarkets, 306 NLRB 426 (1992), enfd. in relevant part
2 F.3d 1162 (D.C. Cir. 1993), cert. denied 511 U.S. 1003
(1994). The judge found that employees were engaging
in union activity beginning in mid-January, that the Re-
spondent had general knowledge of that activity by Janu-
ary 26, and that the Respondent’s 8(a)(1) violations
demonstrated animus.
The judge then found that the Respondent failed to
prove that it would have laid off the employees for le-
gitimate reasons regardless of any union activity. The
judge reasoned that the evidence did not establish that
the layoffs were based on anything other than the usual
seasonal downturn, during which, in prior years, the Re-
spondent had not resorted to layoffs. The judge further
found that the record contained “a paucity of contempo-
raneous documents” reflecting the layoff decision and
that Howe’s February 2 memo stated that the layoffs
were due to the “annual post-holiday lull.” The judge
discussed, but discredited, Howe’s testimony that the
layoffs were the result of a decline in Weight Watchers
and Old Dutch business.7 Finally, the judge noted that
the Respondent continued to use some temporary em-
ployees after the layoffs. The judge concluded that the
Respondent violated Section 8(a)(3) and (1) by laying off
Bohen, Crowley, Sobiech, Starrett, and Zullner.8

6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
Under Wright Line, the General Counsel must prove that antiunion
animus was a substantial or motivating factor in the employment ac-
tion. If the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove by a preponderance of the
evidence that it would have taken the same action even in the absence
of employee union activity. See Manno Electric, 321 NLRB 278, 280
fn. 12 (1996), affd. 127 F.3d 34 (5th Cir. 1997).
7 As discussed below, however, the judge declined to address other
testimony concerning the poor performance of those products.
8 Based on his findings concerning the layoffs, the judge overruled
the challenges to Bohen’s and Zullner’s ballots, and sustained the chal-
lenge to Szuszka’s. He sustained several of the Union’s objections and
ordered a second election, if necessary, after counting Bohen’s and
Zullner’s ballots.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD550
The Respondent excepts to the judge’s conclusion that
the layoffs were unlawful. The Respondent contends
that the General Counsel failed to prove that the Respon-
dent had knowledge of any employee union activity at
the time the layoff decision was made. The Respondent
further argues that, even assuming it had such knowl-
edge, it would have implemented the layoffs for eco-
nomic reasons regardless of union activity.
III. ANALYSIS
We find merit in the latter exception. Assuming ar-
guendo that the General Counsel met his initial burden to
prove that the layoffs were unlawfully motivated, we
find that the Respondent proved that it would have laid
off the employees for legitimate business reasons regard-
less of any union activity. We therefore dismiss the alle-
gation that the layoffs violated Section 8(a)(3) and (1).
Although the Respondent had weathered past seasonal
slowdowns without layoffs, this was the first year that
the Respondent had entered the slow season operating
four shifts with a recently increased work force. These
operational changes had been made largely to accommo-
date the anticipated Old Dutch and Weight Watchers
business. As Mayer testified, the Respondent “had a
different business in the past,” before it shifted its focus
to private label production. Mayer also testified that
Howe thought the shift restructuring was necessary be-
cause of a “cyclical slowdown,” but one that would go
on “for quite a while”—thereby suggesting something
beyond the norm. Jackson recalled being told that the
Respondent was having “sales issues” and that “Weight
Watchers was not meeting the projected numbers that we
thought that it would.” The judge did not discuss this
part of Jackson’s testimony, although elsewhere in his
decision he commented favorably on her demeanor.
In addition, the Respondent introduced documents to
support its contentions that sales of Weight Watchers and
Old Dutch products were faltering before the layoffs and
continued to falter after the layoffs. Respondent’s Ex-
hibit 143, reflecting Old Dutch sales from April to De-
cember 2004, showed that actual sales were well below
planned sales for 6 of the 7 months from June through
December. Respondent’s Exhibit 144, a chart created on
a monthly basis by the Respondent’s financial depart-
ment, compared actual sales and planned sales of the
Respondent’s products from January through May 2005.
The exhibit showed that in terms of dollars, planned sales
of the Weight Watchers and Old Dutch products ac-
counted for more than 50 percent of the Respondent’s
overall planned sales. Therefore, a decline in demand for
those products would be significant. Furthermore, ac-
cording to the exhibit, dollar sales of Old Dutch products
were below the planned levels in all months but January.
Dollar sales of Weight Watchers products were below
the planned levels in all months but March, and dropped
off precipitously in April and May.9 The foregoing evi-
dence is consistent with the Respondent’s argument that
it was already experiencing a decline in those products at
the time of the layoffs and that it anticipated a further
decline in the coming months.10
Thus, although the judge did not credit Howe’s testi-
mony about the layoff decision, that testimony was not
the only evidence supporting the Respondent’s defense.
We find that the testimony of other management repre-
sentatives, combined with the documentary evidence,
supports the Respondent’s argument that its private label
business was suffering, that the Respondent’s situation
heading into the 2005 seasonal slowdown was not com-
parable to the prior years in which layoffs had not been
necessary, and that the Respondent would have laid off
the employees regardless of any union activity.11
The judge reached a contrary conclusion, but on bal-
ance, we find his reasoning unpersuasive. First, we dis-
agree with his reliance on what he called the absence of
an “extraordinary crisis period” in early 2005. With re-
spect to the Old Dutch product line, the judge reasoned
that the gap between actual and planned sales was
smaller in November and December than it had been in
October, and that dollar sales in January were equal to
the plan. With respect to the Weight Watchers product
line, the judge noted that sales in March exceeded the
plan. As explained above, however, the documentary
evidence shows shortfalls in Old Dutch during most
months prior to the layoffs and a shortfall in Weight
Watchers in January, and there is unrefuted testimony
that sales of the Weight Watchers products were below
expectations at the time of the layoffs. At the same time,
the Respondent was operating with an increased work

9 The judge declined to rely on R. Exh. 144, because its production
figures for January 2005 are different from those in a position statement
submitted by the Respondent. However, R. Exh. 144 is a regularly
maintained business record, it is considerably more detailed than the
position statement, and it contains data for February through May as
well as for January. The judge did not find, and the evidence does not
suggest, that R. Exh. 144 was fabricated or that the data is incorrect. In
our view, the inconsistency in the January figures does not warrant
disregarding R. Exh. 144.
10 Actual events apparently bore out the Respondent’s concerns.
Employee Sharon Karboski testified that, in a meeting in 2005, Howe
said that the Respondent had “much less Weight Watchers business
than it had anticipated.” Former employee Kathy Mankin testified that
the Respondent “ran” (i.e., produced) Weight Watchers products much
less often in 2005 than in 2004. The Respondent changed from three
shifts to two in late 2005, although it had returned to three shifts by
May 2006.
11 Moreover, consistent with the Respondent’s argument that its
business would no longer support four shifts, the Respondent laid off a
shift supervisor along with the five employees.
BAPTISTA’S BAKERY, INC. 551
force and an extra shift. In the circumstances, we decline
to find that the downturn in business was not significant
enough to justify layoffs.12
Second, we do not agree with the judge’s reliance on
the February 2 memorandum to employees, which stated
that the layoffs were a “temporary seasonal adjustment”
in response to the “post-holiday lull.” In our view, the
memo as a whole is not consistent with the General
Counsel’s theory that the Respondent implemented the
layoffs to send a message to employees discouraging
union activity. The overall tone of the memo was reas-
suring and nonthreatening; it stated that “2005 will be a
great year” and “we look forward to all of you making a
significant contribution.” The memorandum did not
mention union activity or otherwise imply a connection
between union activity and the layoffs. Rather, by em-
phasizing that employees should not “read anything into”
the layoff decision, the memorandum took pains to reas-
sure the remaining employees that they should not fear
for their own jobs.13
Third, the judge’s emphasis on the “paucity” of other
documents memorializing the layoff decision is mis-
placed. The Respondent was a relatively small em-
ployer. Jackson, the Respondent’s quality assurance and
sanitation manager, testified that no one was tasked with
taking notes at management meetings, that there gener-
ally were no written agendas or minutes, and that fol-
lowup was usually in person rather than by e-mail. Un-
der these circumstances, we do not find the absence of
documentation critical.
Finally, we disagree with the judge’s statement that the
continued use of temporary workers after the layoffs
“casts additional doubt” on the Respondent’s defense.
Temporary workers were used primarily in two areas:
packaging and sanitation. With respect to packaging, the
evidence supports the Respondent’s explanation that the
need for additional workers was irregular, because the
amount of packaging work varied depending on whether
the particular products coming off the line were to be

12 See Gem Urethane Corp., 284 NLRB 1349, 1350 (1987) (“That
the difference between anticipated and actual orders narrowed . . . in no
way indicates that a layoff would be precipitous. . . . Whether proce-
dures other than a layoff might have been more or equally effective in
remedying the Respondent’s economic loss is not a matter the Board is
empowered to decide.”).
13 The memorandum also stated that the Respondent’s “focus was on
retaining people” with, among other things, the “attitude” that would
“provide the best foundation for building for the future.” Although the
General Counsel argues that “attitude” is a veiled reference to union
activity, we find that the single reference to “attitude” as one of many
qualities the Respondent was seeking in its employees did not change
the overall tenor of the memo. We also note that the General Counsel
expressly disclaimed any argument that the laid-off employees were
selected for layoff because they had a prounion “attitude.”
packaged in bulk or in small individual bags. Therefore,
the use of temporary workers did not necessarily reflect a
consistent need for additional permanent employees.
With respect to sanitation, Jackson testified that she
needed temporary workers during the first half of 2005
because she was preparing for a facility audit. Although
the Respondent, after the audit, continued to use varying
numbers of temporary workers in sanitation for an ag-
gregate of 56 or more hours per week, it is not clear how
those hours were allocated among the workers or
whether the Respondent had a consistent need for regular
employees. Furthermore, only one of the alleged dis-
criminatees was a sanitation worker, and Jackson testi-
fied that she was a poor performer who would have been
terminated eventually if she had not been laid off. Under
all of these circumstances, we find that the Respondent’s
use of temporary workers does not undercut its defense.
In sum, the Respondent’s situation in early 2005 was
not comparable to prior seasonal downturns in which the
Respondent had found layoffs unnecessary. The Re-
spondent was entering the slow season with an extra shift
and an increased work force. Those changes had been
made primarily to accommodate the anticipated demand
for Weight Watchers and Old Dutch products. The Re-
spondent’s July 2004 memo announcing the change to
four shifts emphasized that the change would continue
only “as long as our orders support” it. In February
2005, the Respondent concluded that its orders did not
support maintaining that schedule. The Respondent
therefore returned to the three-shift operation it had run
prior to July 2004, laying off five employees and a shift
supervisor. We find that the Respondent has carried its
burden to prove that it would have laid off the employees
for legitimate business reasons regardless of employee
union activity. Accordingly, we dismiss the allegation
that the layoffs violated Section 8(a)(3) and (1).14
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 9:
“9. Employees George Ann Bohen, Kathi Szuszka, and
Judy Zullner, whose ballots were challenged at the elec-
tion herein, were not eligible voters.”
2. Delete the judge’s Conclusion of Law 3 and renum-
ber the subsequent paragraphs.

14 Having found that none of the three challenged voters (Bohen,
Szuszka, and Zullner) was laid off unlawfully, we sustain the chal-
lenges to all three ballots.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD552
ORDER
The National Labor Relations Board orders that the
Respondent, Baptista’s Bakery, Inc., Franklin, Wiscon-
sin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting and offering to remedy employee griev-
ances in order to discourage support for a union.
(b) Promising improved benefits in order to discourage
support for a union.
(c) Telling employees that if they choose a union to
represent them bargaining would start from zero.
(d) Threatening employees that they would lose bene-
fits or the plant would close if they choose a union to
represent them.
(e) Telling employees that the reason they did not re-
ceive a pay raise was because of a union’s organizational
campaign.
(f) Telling employees that the Respondent could not
grow with a union or that choosing a union would wreck
the Respondent’s progress, in order to discourage support
of a union.
(g) Implying that employees who do not support a un-
ion or complain about their terms and conditions of em-
ployment are good employees by telling employees that
the Respondent has good workers who do not complain
or that the Respondent wants to move forward with em-
ployees with good attitudes.
(h) Providing employees with benefits including, but
not limited to, free baseball tickets, food, restaurant
meals, or employee-of-the-year awards with prizes, in
order to discourage support of a union.
(i) Distributing surveys for employees to complete,
which solicit grievances with an implied promise of reso-
lution, in order to discourage support of a union.
(j) Posting, restating, or repromulgating the Respon-
dent’s no-solicitation, no-distribution rule in response to
a union organizational campaign.
(k) 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
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Franklin, Wisconsin facility copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized repre-

15 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.”
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since February 18, 2005.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED with respect to the election
held in Case 30–RC–6604 that the election shall be set
aside and the case remanded to the Regional Director for
Region 30 for the purpose of conducting a rerun election,
as set forth below. The election notice shall contain
Lufkin16 language. The challenges to the ballots of
George Ann Bohen, Kathi Szuszka, and Judy Zullner are
sustained. Consistent with the findings herein, the objec-
tions lettered E, G, and I, are overruled, and the Union’s
objection and objections lettered A, B, C, D, F, and H are
sustained.
IT IS FURTHER ORDERED that Case 30–RC–6604 be
severed from the consolidated unfair labor practice cases,
and be remanded to the Regional Director for Region 30
for handling consistent with this Order, including the
conducting of a second election, as set forth below.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
[Direction of Second Election omitted from publica-
tion.]
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
this notice.

16 Lufkin Rule Co., 147 NLRB 341 (1964).
BAPTISTA’S BAKERY, INC. 553
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 solicit your grievances and offer to rem-
edy them, by survey or otherwise, in order to discourage
your support of a union.
WE WILL NOT promise improved benefits in order to
discourage your support of a union.
WE WILL NOT tell you that if you choose a union, bar-
gaining will start at zero.
WE WILL NOT threaten that you will lose benefits or
that we will close the plant if you choose a union.
WE WILL NOT tell you that the reason you did not re-
ceive a pay raise is because of a union organizational
campaign.
WE WILL NOT tell you, or imply, that the Company
cannot grow if you choose a union or that choosing a
union would wreck the Company’s progress.
WE WILL NOT imply that employees who do not sup-
port a union or complain about their terms and conditions
of employment are good employees by telling you that
we have good workers who don’t complain or that the
Company wants to move forward with employees with
good attitudes.
WE WILL NOT provide you with benefits including, but
not limited to, a free Major League Baseball outing in-
cluding food, restaurant meals, or an employee-of-the-
year award and prize, in order to discourage you from
supporting a union.
WE WILL NOT distribute surveys for employees to
complete, which solicit grievances with an implied prom-
ise of resolution.
WE WILL NOT post, restate, or repromulgate our no-
solicitation, no-distribution rule in response to a union
organizational campaign.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
BAPTISTA’S BAKERY, INC.
Angela B. Jaenke, Esq. and Paul Bosanac, Esq., for the General
Counsel.
John E. Murray, Esq., of Milwaukee, Wisconsin, for the Re-
spondent.
Timothy C. Hall, Esq., of Milwaukee, Wisconsin, for the
Charging Party/Union.
DECISION
STATEMENT OF THE CASE
MARK D. RUBIN, Administrative Law Judge. These cases
were tried in Milwaukee, Wisconsin, on various dates in Febru-
ary, April, and May 2006, based on charges filed in 2005 by
Teamsters Local Union No. 344 Sales and Service Industry,
affiliated with the International Brotherhood of Teamsters1 (the
Union) on February 11 and August 15, and a representation
petition filed by the Union on February 8, 2005. Both charges
were amended on various dates.
The Acting Regional Director’s amended consolidated com-
plaint dated February 22, 2006, alleges that Baptista’s Bakery,
Inc.2 (the Respondent) violated Section 8(a)(3) of the Act by
permanently laying off six employees,3 discharging employee
Kathy Mankin, and disciplining employee Donna McCall. The
complaint further alleges that the Respondent violated Section
8(a)(1) of the Act by the following actions related to the union
organizing activities of its employees: restatement or promulga-
tion of its no-solicitation rule; solicitation of; and positive re-
sponse to; grievances and promise of benefits; threats of loss of
benefits; informing employees that everything would “start
from zero;” that the Employer could not grow if the Union were
successful; and that the organizing campaign was preventing an
employee from receiving increased pay; threats of plant clo-
sure; informing employees that it wanted employees with
“good attitudes” and employees who “don’t cause trouble or
open their mouths” to move forward with, informing employees
that the Respondent was finally making money and that this
would be ruined “by bringing in a third party;” offering to dis-
close and disclosing confidential information about employees;
implying surveillance of union activity; comparing the Union to
a “crack addict;” and granting benefits including a major league
baseball outing; free jackets; an employee-of-the-year award;
and complimentary dinners at area restaurants.
The Respondent maintains variously, that certain of the al-
leged actions are precluded by Section 10(b), that others were
permissible under the National Labor Relations Act (the Act),
and that others did not occur or were, essentially, taken out of
context. The Respondent further contends that the alleged lay-
offs were unrelated to union organizing activities, and were,
instead, generated by a slowdown of the Respondent’s busi-
ness, and that the discharge of Kathy Mankin and discipline of
Donna McCall were not violative of Section 8(a)(3).
The parties also litigated election objections filed by the Un-
ion and challenges filed by the Respondent, which are essen-
tially parallel to the unfair labor practice allegations. The Re-
spondent challenged the ballots of George Ann Bohen, Judy
Zullner, and Kathleen Szuszka, all of whom were alleged in the
complaint to be permanently laid off in violation of Section
8(a)(3). In its brief, the Union maintains that the Respondent’s
challenges should be overruled and the votes counted, that if
the Union then prevails it should be certified, and that if it does

1 Charging Party or the Union.
2 Respondent or the Employer.
3 Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Star-
rett, Judy Zullner, and Kathi Szuszka.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD554
not or if the challenges are upheld, a rerun election should be
ordered pursuant to its objections.
At the trial, the parties were afforded a full opportunity to
examine and to cross-examine witnesses, to adduce competent,
relevant, and material evidence, to argue their positions orally,
and to file posttrial briefs. Based on the entire record, including
my observation of the witnesses and their demeanor, and after
considering the oral argument and brief of the Respondent, and
the briefs of the counsel for the General Counsel and the Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, maintains an office and place
of business in Franklin, Wisconsin,4 where it has been engaged
in the snack food manufacturing business. During the calendar
year 2005, in conducting the business, the Respondent pur-
chased and received goods and materials valued in excess of
$50,000 directly from suppliers located outside the State of
Wisconsin. It is admitted, and I find, that the Respondent is
now, and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
I find, and it is admitted, that the Union is, and has been at
all times material, a labor organization within the meaning of
Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Respondent operates a bakery/factory in the Milwaukee,
Wisconsin metropolitan area at which it manufactures baked
snack foods. Sometime in January 2005,5 an employee con-
tacted the Union, and an organization drive was put into mo-
tion. On February 2, the Respondent permanently laid off six
unit employees. The General Counsel maintains, and the Re-
spondent denies, that the Respondent had learned of the union
activity prior to the layoff decision. The Union filed a repre-
sentation petition with the Board on February 8, and both the
Respondent and the Union engaged in an election campaign
that culminated in a Board-conducted election on March 23. At
the election, of 44 eligible voters, 21 cast ballots for the Union,
22 against, and the Respondent challenged three voters, suffi-
cient to affect the results of the election. The Union filed ob-
jections to the conduct of the election on March 29. The al-
leged unfair labor practices took place both before and subse-
quent to the election.
B. The Respondent
The Respondent’s predecessor company, Gardetto’s, along
with one of its two bakery manufacturing facilities, was sold to
General Mills in 1999. Nan Gardetto, Respondent’s CEO, and
identified in the record as the Respondent’s owner, then formed
Baptista’s in August 1999, and located its operations at the

4 The only facility involved here.
5 All dates refer to 2005, unless otherwise indicated.
Franklin facility involved here, the Gardetto’s facility that was
not included in the General Mills transaction. Gardetto’s pro-
duced snack mixes at its two plants, with the Franklin plant
producing bread stick pieces that were part of the snack mixes.
After the Respondent began operations, the Franklin plant util-
ized two ovens to produce breadstick pieces for the General
Mills snack mix, which were packaged in large cardboard totes
that held up to 700 pounds, and also produced breadsticks and
toasts which were packaged in trays. Respondent is managed
by its president, Tom Howe, and CFO Jon Becker. Reporting
to Howe, among other managers, are Vice President, Human
Resources, and Operating Services Thomas Mayer, and Man-
ager of Quality Assurance and Sanitation Marlenea Jackson.
At the time the events discussed herein occurred, Brent Lepak
was the vice president,of manufacturing.
Howe was hired by the Respondent in mid-2003. In mid-
2004, he decided to change the direction of the business by
signing a 3-year contract to supply General Mills and by seek-
ing new business involving baking product, including pretzels
and other snack foods, for major customers including “Old
Dutch” and “Weight Watchers,” to be sold under the cus-
tomer’s labels. In order to facilitate this new business plan, the
Respondent purchased new equipment including a large-scale
oven,6 increasing its baking capacity by 50 percent, and new
packaging machines. As a result, by July 2004, the Respon-
dent’s production volume increased approximately twofold.
In July 2004, the Respondent implemented a new work
schedule to accommodate the increased workload, which
changed its operation from a three-shift daily schedule, to four
shifts, operating 24 hours a day, either 6 or 7 days a week. To
man the new shift structure, the Respondent hired new employ-
ees in July through September 2004, many of the new hires
coming from the newly defunct American Italian Pasta Com-
pany in nearby Kenosha, Wisconsin.7
Much of the testimony and evidence dealt with the issue of
the state of the Respondent’s business at the time it decided on
and implemented the permanent layoffs in early 2005. The
Respondent’s evidence consisted mainly of testimony by its
managers to the effect that the Respondent’s business, and the
snack food business in general, is seasonally cyclical and that,
further, due to poor sales, the Old Dutch and Weight Watchers’
business had never reached expected goals, with the Respon-
dent experiencing and expecting reductions in the amount of
product that needed to be produced for these two customers.
This issue is discussed, in detail, below.
C. The Layoffs, Union Organizational Activity, and
Respondent’s Knowledge
Paul Brzezinski, an employee of the Respondent, first con-
tacted the Union on January 12, which resulted in a meeting on

6 Added to the then current two ovens.
7 Various witnesses described tensions between the existing Bap-
tista’s employees, and the newly hired “pasta employees” or “pasta
people,” as they were frequently referred to in the record. From these
accounts, I find that these tensions were at least partially caused by the
then current employees’ resentment over the Respondent’s decision to
hire and/or promote some of these new employees to lead, supervisory,
and managerial levels.
BAPTISTA’S BAKERY, INC. 555
January 17 at the Union’s offices in Milwaukee with Business
Agent/Organizer James Dillon. Brzezinski and Dillon agreed
to arrange two meetings for Respondent’s employees and Dil-
lon at the Union’s offices on January 20 and 22. Brzezinski,
who was on medical leave at the time,8 telephoned various
employees to inform them of the union meetings. Dillon con-
ducted these two meetings, and discussed with the employees
present what was entailed in organizing a union, including the
necessity of obtaining signed authorization cards and forming
an organizing committee. At these meetings, Dillon told the
employees that for the time being they should keep the fact of
the organizing drive to themselves and to other employees they
thought would be interested.
The Respondent announced the permanent layoffs of the al-
leged discriminatees, and the restructuring of its shift schedule
on Wednesday, February 2. The February 2 memo from Re-
spondent’s president, Howe, to “all shop employees” began
with the following two paragraphs:
As all of you have noticed from our work activity, we
are experiencing the annual post-holiday lull in orders that
always affects the snack industry, something I explained in
my notice of July 9, 2004, when announcing our change to
a 7/24 two-week rotation. This slowdown is common
throughout the snack industry, and snack companies typi-
cally adjust their work schedules, reduce their work
weeks, and schedule plant shutdowns.
As a result of this slowdown, it is necessary that we
remain flexible and also make adjustments in our work
schedule to reflect our current and near-term customer
demands.
The memo from Howe also, in pertinent part, stated as follows:
The second step we’ve taken, and one we regret was neces-
sary, is the layoff of some members of our workforce to re-
flect our current and near-term business level and added ca-
pacity going forward. These involved tough decisions, we
provided those people some assistance to help during their
transition to new opportunities, and our focus was on retain-
ing people possessing the skills, knowledge, flexibility, reli-
ability and attitude that provide the best foundation for build-
ing for the future. [Emphasis contained in original.]
Finally, the memo stated as follows, in pertinent part:
Please do not read anything into these changes beyond it be-
ing a temporary seasonal adjustment. Our business is grow-
ing, we have made significant investment in baking and pack-
aging equipment to foster that growth, and potential custom-
ers are excited about what Baptista’s to [sic] offer.
During their shifts on February 2, the Respondent laid off
five of the six employees who are alleged in the complaint as
permanent layoffs in violation of Section 8(a)(3): Judy Zullner,
Dennis Sobiech, John Crowley, Lynda Starrett, and George
Ann Bohen. They were informed of their layoffs, and escorted
out of the plant. The sixth alleged discriminatee named in the

8 He eventually returned to work 6 days before the representation
election.
complaint as being permanently laid off on February 2, Kathi
Szuszka, was not, in fact, laid off by the Respondent. Her
situation is discussed below.
Dillon held another organizational meeting for the Respon-
dent’s employees on February 5. At this meeting, Dillon dis-
cussed forming an organizing committee and opined that the
easiest way to protect union supporters was to tell the Respon-
dent their names. On February 7, the Union mailed and faxed a
letter to the Respondent’s president, Howe, notifying the Re-
spondent of the names of the employee members of the Union’s
organizing committee, including Bohen, Zullner, and Szuszka.
The Respondent’s vice president, Mayer, received the Un-
ion’s fax the evening of February 7. Mayer called Howe,
Gardetto, and the Respondent’s legal counsel, and notified
them of the receipt of the union fax. Mayer, Gardetto, and
Howe met the following day to discuss the fax, and Mayer gave
Gardetto and Howe copies. They agreed not to discuss the
union organizing until they had spoken to legal counsel, but to
meet the following day, February 9, with the management
group including the shift managers and supervisors.
On February 9, Mayer, Gardetto, Howe, Vice President of
Manufacturing Brent Lepak, Director of Engineering Gary
Olson, Maintenance Supervisor Jeff Sertich, and Manager Rus-
sell Sparks met to discuss the developments. Mayer told the
group that he had received a fax two evenings earlier regarding
an organizing committee for the Union. Gary Olson responded
that weeks before, he heard Brzezinski say that “we ought to
get a union.” Olson said he thought it had been a “passing
remark.” Sertich said that maintenance mechanic Terry
Cantwell had made a comment about a union to him weeks
earlier as well, and that Sertich had reported the remark to
Lepak within a day or two of hearing the comment. At the
meeting, Lepak acknowledged that Sertich had so informed him
a couple of weeks earlier.9
Brzezinski’s comment to Olson concerning “we ought to get
a union” occurred at a gathering about January 26, or earlier in
January 10 for an employee leaving the Respondent’s employ
(unrelated to the issues in this case), at a Franklin, Wisconsin

9 My findings as to what occurred at this meeting are based on the
credited testimony of Mayer, and the admissions in Respondent’s posi-
tion statement submitted to the Region during the investigation and
introduced as an exhibit. As to the position statement, see Dobbs Inter-
national Services, 335 NLRB 972 (2001).
10 I find that this conversation occurred about January 26 based on
the testimony of Mayer to the effect that Olson admitted at the February
9 management meeting that the conversation had occurred weeks ear-
lier, the admission of the Respondent in its counsel’s position statement
to the Region that the Olson conversation with Brzezinski had occurred
“two weeks earlier,” and the testimony of Brzezinski that the conversa-
tion probably occurred in January, but he did not know the exact date
other than it was after January 17. Respondent called Olson as a wit-
ness, but Olson did not testify as to the Brzezinski-Olson bar conversa-
tion, notwithstanding a claim to the contrary in the Respondent’s brief.
Olson’s testimony that at the time of the meeting, he believed he was
unaware that the “Teamsters were interested in an organizing campaign
at Baptista’s,” may simply reflect that Brzezinski mentioned a union to
Olson, but nothing about the Teamsters specifically. My finding of fact
as to the contents of the conversation reflects Brzezinski’s credible and
unchallenged testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD556
bar. Brzezinski began talking about a union with those present,
including Olson. At some point Olson and Brzezinski had a
conversation while playing pool. Olson commented that he
thought, “it’s a good thing that—what you are doing.” Brzez-
inski responded that he also thought it was good, that he “don’t
have nothing to lose anyways.”
Kathi Szuszka
Szuszka was employed as one of four QA techs,11 each one
assigned to one of the then four shifts. Szuszka worked on the
third shift. Quality Assurance Manager Marlenea Jackson and
Vice President Lepak met with Szuszka the evening of Febru-
ary 2. Jackson told Szuszka that she was a good worker and the
Respondent was not going to let her go, but a shift was being
eliminated so Jackson wanted her to work on the first shift as a
sanitation specialist. Szuszka responded that she preferred to
work on the third shift. Jackson said that if the Respondent
returned to a four-shift schedule, Szuszka would be the mostly
likely candidate to move into that position, but that she was
being assigned to the first shift to receive more training so as to
be better prepared to return to a QA tech position in the fu-
ture.12 Jackson told Szuszka that she hoped that being assigned
to the first shift wouldn’t interfere “with her part-time job,”
apparently a reference to Jackson’s belief that Szuszka had a
part-time job elsewhere. Szuszka said it would be no problem,
but did not directly respond to Jackson’s comment that she had
a part-time job elsewhere. Szuszka testified that she, in fact,
had no part-time job elsewhere. Lepak suggested that it was
possible that maybe the Respondent could move her to second-
shift packaging if there was an opening there. The meeting
ended with Lepak saying that he would see if “someone had
dropped out or something else that was available.”13
When Szuszka reported to work on February 3, she learned
she was not on the schedule for the following week. She went
to Mayer’s office and the two spoke. Szuszka told Mayer that

11 Szuszka, Leslie Fintak, Sharon Cassel, and Judy Rautio.
12 Jackson credibly testified that in the past she had perceived that
Szuszka had some performance related problems related to the QA tech
position, and that additional training would be necessary.
13 My findings here are based on the testimony of both Jackson and
Szuzska. Lepak did not testify as to this conversation. As noted else-
where here, both Jackson and Szuzska demonstrated by their demeanor
an intent to truthfully answer questions of counsel for both sides. On
the other hand, this single conversation took place some time before the
trial, and recollections are affected by the passing of time. Jackson
testified that, in effect, Szuzska admitted that a second job would cause
her problems moving to the first shift. Szuzska testified that she did not
have a second job, that she didn’t tell Jackson she had a second job, and
it was Jackson who brought up the subject. On the other hand, Szuzska
admits that when Jackson brought up the subject, she didn’t affirma-
tively tell her that she had no second job. I find that while Szuzska did
not affirmatively tell Jackson she did not have a second job, she left
Jackson with that impression by not denying such. I further find that no
matter the exact words used by each the meeting ended with Jackson
under the impression that Szuszka would not accept a transfer to first
shift and that Lepak would see if there was an opening on another shift
more acceptable to Szuzska, but that if there was no such opening there
would be nothing for Szuzska. Szuzska left the meeting under the
impression that she had expressed opposition to the first shift, but had
closed no doors.
she was not on the schedule for the following week. Mayer
responded that she had refused a job. Szuszka said that Lepak
was going to get back to her. Mayer again responded that she
had refused a job. There was additional discussion, and then
Mayer asked her if she was going to finish her shift. Szuszka
said, “No.” Mayer asked for her employee badge and then
escorted her out of the plant.
D. The Election Campaign: Captive Audience
Speeches/Meetings14
1. The Nan Gardetto speech
The Union filed its representation petition with the Board on
February 8. On February 18, Nan Gardetto spoke to all unit
employees at a captive audience meeting held on the Respon-
dent’s premises. Gardetto used a prepared outline of points she
wanted to communicate to the employees, but departed from
the outline occasionally.15 Gardetto told the assembled em-
ployees that she felt embarrassed; that she felt shame that she
had let the employees down, and that she hadn’t done a good
enough job communicating with them. She said she cared a lot
for her employees, “and because of my situation at home16—I
really was feeling like I wasn’t enough.” She told the employ-
ees that she “felt very hurt and abandoned when she received
the letter” from the Union, and expressed to the employees her
thought that “that’s exactly how my employees must have felt”
about her lack of communication with them. Gardetto told the
employees that her accessibility and communication with them
would be getting better and that her door was always open if
they had any questions or concerns.
Gardetto further told employees at the meeting that she
wanted to correct any behavior that may have caused the em-
ployees to feel unappreciated, and to correct any feelings of
fear, to speak out by creating a new culture based on open
communication, problem solving, and effective teamwork and
trust. She said that the union organizing attempt was a “wake-
up call,” that she hoped she could discover “where the discon-
nect and hurts occurred” and to make changes needed to con-
tinue a strong family business, and that Baptista’s “was not
taking the time to say thank you enough.” She informed the
employees that she hoped she would be able to continue going
through the year addressing all their needs, the needs of cus-
tomers, and the need for profitability without the involvement

14 Both the counsels for the General Counsel and the counsel for the
Respondent used the term “captive audience speech” in their briefs to
describe speeches given by various management representatives to
assembled groups of employees during the course of the union cam-
paign. The dates of some of these captive audience speeches and the
order in which they occurred is not clear from the record, except that
they all occurred during the period beginning with the Gardetto Febru-
ary 18 speech through about March 23.
15 Much of my findings as to what Gardetto said at the meeting are
based on Gardetto’s own testimony. Gardetto said she could not re-
member what she said “verbatim,” but could remember the “gist.” I
took Gardetto’s “gist” comment to apply not just to the specific ques-
tions of counsel, but to her testimony as to her speech in general, unless
she testified to the contrary.
16 Gardetto testified that her time had been occupied dealing with her
husband’s illness.
BAPTISTA’S BAKERY, INC. 557
of a third party, that she was committed to having Tom Mayer
focus on attending to employees’ needs again, and committed
to creating opportunities for “collaboration and communication
on goals,” and celebrating employee successes. She also told
employees that she was human and had made mistakes but
wanted employees to come to her so she could fix them, that
she was not too proud to hear what they needed and to make the
changes that they needed, that she was going to be more avail-
able in the plant and more conscious and aware of what was
going on, and would actively participate in ensuring that the
changes needed would happen.17
2. The Brett Lepak speech
Brett Lepak, the Respondent’s vice president of operations
during material times,18 gave a captive audience speech to em-
ployees during the course of the union election campaign. De-
spite the testimony of five witnesses, including Lepak, the re-
cord does not establish the exact date of the speech. Further,
neither Lepak nor the other witnesses could definitively estab-
lish whether Lepak gave one speech to assembled employees or
similar speeches to assembled groups on each shift, although
Lepak testified, “I believe it was shift by shift.” I, thus, make
no finding as to the exact date of the speech, other than it was
during the course of the union election campaign, nor as to
whether it was one speech or similar speeches to each shift.
In his captive audience speech(es), Lepak told the assembled
employees that Baptista’s had made mistakes but wanted to do
better,19 that the Company was doing well and they were not
headed towards more layoffs, that he didn’t care whether the
employees had a union or not but that the Company couldn’t
grow with a union, that Baptista’s wanted to move ahead peo-
ple with good attitudes, that employees shouldn’t forget to vote,
and that whether an employee voted “yes” or “no” it wouldn’t
be held against him/her. Employee Sharon Cassel asked Lepak
about why employee Joe Carvalho had his lead position and
pay taken away. There is no evidence as to Lepak’s answer, if
any. Employee Leslie Fintak asked Lepak about employee
Dennis Sobiech’s layoff. Lepak responded that a mistake made
by Sobiech had cost the Company $20,000. Lepak also said

17 One employee present for Gardetto’s speech, Joe Carvalho, testi-
fied that Gardetto said that people who were not happy should leave the
company. No other witness for the General Counsel so testified and,
indeed employee Leslie Fintak testified that Gardetto did not make the
comments testified to by Carvalho and that, further, such comments
would be out of character for her. In their brief, counsels for the Gen-
eral Counsel do not mention or rely on Carvalho’s testimony as to the
alleged comment by Gardetto. On balance, I do not credit Carvalho’s
recollection of this alleged comment by Gardetto.
18 Lepak voluntarily left the Respondent’s employ for another job in
February 2006.
19 In their brief, counsels for the General Counsel assert that this
statement constitutes solicitation of grievances and promise of a bene-
fit, but concede that the statement was not alleged as a violation in the
amended consolidated complaint introduced during the hearing. Inas-
much as the statement is not alleged as a violation, nor was there an
attempt to amend the complaint to add the allegation, and in view of my
findings herein which make any findings as to the statement redundant,
I have not made any findings herein as to whether, in fact, Lepak’s
statement was a solicitation of grievances or promise of benefits.
that the Company wanted to have midyear reviews for all em-
ployees and to have raises in June.20
3. The Tom Howe speech
Respondent’s president, Tom Howe, conducted 30-minute
captive audience speeches with each of three shifts on March
17.21 Howe talked to the assembled employees about the state
of the Respondent’s business including: that at one point the
Respondent had been ready to close the doors; that the Respon-
dent’s Weight Watchers business had not done well in the mar-
ketplace; that the Company had made a substantial capital in-
vestment in pretzel baking and packaging equipment; that sales
had now grown from 5 million to 9–10 million; that the Re-
spondent was committed to find new products and customers to
grow the business; that the Respondent was committed to make
the business work by better training for and communication
with its employees including using quarterly team meetings to
share the state of the business; that he didn’t want the Union to
come in and that he and Nan (Gardetto) were working hard on
changing things; that he was asking the employees to support
the direction the Respondent was going in; that they did not
need union representation in order to move forward and that
union representation could become a “hurdle” in that the Re-

20 In finding that this is what Lepak said, I generally credit the testi-
mony, except as set forth to the contrary, of all five witnesses who
testified as to the captive audience meeting(s), each of whom answered
questions forthrightly and, generally, without hesitation on direct and
cross-examination, and demonstrating an intent to honestly answer,
rather than avoid, questions: Manager Lepak, and employees Mankin,
Karboski, Fintak, and Mang. Of course, the event testified to occurred
over a year prior to the testimony and not all of the recollections were
equally strong. Lepak, for one, said, in effect, he was more comfort-
able testifying as to the “gist” of conversations, and his memory ap-
peared somewhat hazy as to certain questions. For example, Respon-
dent’s counsel asked whether he made any comments that “specifically
referenced the union or organizing campaign?” Lepak began his an-
swer, “Nothing that I can think of specifically.” The Respondent’s
counsel asked Lepak whether he recalled telling employees that if the
Union won the election, the company could not grow. Lepak answered,
“No,” and thus not denying that he said it, but testifying that he could
not recall saying it. I, thus, chose to credit the specific testimony of
Mankin and Mang to the effect that Lepak said the Company couldn’t
grow with a union. And while there was no other supporting testimony,
I chose to credit Mankin’s specific testimony that Lepak said words to
the effect that the Company wanted to have reviews in midyear for all
employees to have raises in June. Lepak was not asked about this
alleged statement and, thus, did not deny it. However, the General
Counsel has not alleged this as a violation. Thus, and because a finding
of a violation would be redundant in view of my other conclusions
herein, I do not conclude that Lepak’s comment as to midyear reviews
and raises violated the Act.
21 An exhibit, a memo from Tom Mayer to “All Shop Employees,”
established the date of the speeches. In addition to Howe, General
Counsel witnesses Sharon Karboski, Sharon Cassel, and Rex Mang
testified as to the content of Howe’s captive audience speeches. Inas-
much as the testimony of the witnesses does not differentiate between
the speeches given to each shift and in considering the overall sense of
Howe’s testimony, I find that essentially the same words were used
during each speech. Both Cassel and Mang attended the meeting for
first-shift employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD558
spondent’s flexibility would22 be restricted by the rules of a
union contract; and that bringing in a third party or union would
ruin or wreck the progress the Respondent was making.23
4. Gary Olson/Mario Blanquel speeches/meetings
Olson gave two captive audience speeches to employees dur-
ing the election campaign, each time giving a similar speech to
each of all three shifts.24 At the first speech, the supervisor of
the shift on which the speech was given was present. During
the second speech, Shift Supervisor Mario Blanquel was pre-
sent at least for the meeting on the first shift.25 At the two cap-

22 Howe’s actual testimony is, “That we would be—in a union situa-
tion, we would be—could be restricted insofar as needing to follow the
rules of the union contract.” Then, in answer to a question of the Re-
spondent’s counsel, Howe testified that he didn’t recall whether he used
the word “would” or “could.” There was no other evidence as to which
word Howe used. Because Howe first used the word “would” in his
testimony before appearing to catch himself and say “could,” I con-
clude that the initial words of his testimony are the reliable ones in
respect to this issue, and that, in fact, Howe used the word “would.”
23 Employees Rex Mang and Sharon Cassel, both witnesses for the
General Counsel, testified that Howe, in talking about the Respondent’s
upbeat plans for the future, said words to the effect of asking employ-
ees why they would want to “wreck” everything by bringing in a union.
Mang testified that Howe said, “why ruin this by bringing in another
party.” Cassel testified that Howe said that “[b]ringing in a union . . .
would wreck everything.” Howe, when asked by the Respondent’s
counsel whether he had made any comment to the effect that if the
employees voted for a union, it would ruin the company or ruin the
company’s progress, answered, “No.” While Mang and Cassel did not
use identical words, the import of the words of their testimony is the
same: that is, that Howe told the assembled employees that choosing
the Union would ruin the Respondent’s otherwise upbeat progress. The
fact that they did not use identical words does not detract from the
credibility of either witness. Based on my observations of their de-
meanor as witnesses, including their generally unhesitating and forth-
right answers to the questions of all counsel, I credit their testimony
rather than the denial of Howe. Howe’s credibility is discussed in more
detail, infra.
24 The record does not definitively establish the dates of the speeches
except that they occurred during the union election campaign after the
Gardetto speech and before the election.
25 I found, and Olson so testified, that he attended and spoke at two
series of meetings, each series consisting of a similar speech to each
shift. I also find that Blanquel at least attended and spoke at the first
shift meeting for the second speech, which Olson also attended. Olson
testified that the first-shift supervisor (Blanquel) attended the first-shift
meeting for the first speech, and that Blanquel attended all three shift
meetings for the second speech. Blanquel testified that he only at-
tended the first-shift meeting for the second speech. The four General
Counsel witnesses, all employees, had differing recollections: Sharon
Karboski testified to remembering only one meeting with Olson. Rex
Mang remembered two meetings with Blanquel and Olson, the first of
which Mayer also attended. Kathy Mankin remembered one meeting
with Blanquel and Olson. Sharon Cassel remembered one meeting
with Olson and Blanquel on the first shift. Because of this widely
divergent testimony, some of which may or may not have been caused
by some of the employee-witnesses not attending all the meetings, I
cannot reach a definitive finding as to how many of these meetings
Blanquel attended, other than he attended at least the second speech for
the first shift, but may also have attended all three shift meetings for the
second speech, and either one or all three shift meetings for the first
speech. Nevertheless, my factual findings as to what Blanquel and
tive speeches he gave, Olson told employees that he was there
to talk about the Union, that he was against the Union, that
choosing a union is overdoing it just like putting a tourniquet
rather than a “Band-Aid” on a cut finger is overdoing it, and
that the Respondent had made mistakes but that he, Blanquel,
and Lepak were trying to change things and make them better
and treat them fairly by giving them, for example, enough ad-
vance warnings of shift changes. Olson told the employees, as
to notice of shift changes, that Tom Howe had stated that he
“would make sure that we would give them ample notice from
that point on,” and that Howe had also stated that “we were not
going to work Sundays.”26
At the meeting or meetings he attended, Mario Blanquel told
the employees he had worked for union employers, and unions
promise a lot of things, but “why would you want to pay union
dues,” and that he would treat the employees fairly. At one of
the meetings, employee Joe Carvalho asked why he hadn’t been
paid as a lead person. Blanquel responded that if the Respon-
dent ever went back to three shifts Blanquel would consider
him the lead, and would do his best to get Carvalho what he
deserved.
At one or both of the Olson meetings, the subject of the per-
manent layoff of alleged discriminatee Dennis Sobiech came
up.27 At the first captive audience meeting, one or more of the
employees present brought up the subject of the permanent
layoff of Dennis Sobiech, and questioned why he wasn’t of-
fered another position with the Respondent.28 One of the em-
ployees asked why Sobiech wasn’t offered another job if he
couldn’t handle the baking process operator job. Olson said he
would check into it. After the meeting, Olson met with Mayer,

Olson said at these meetings are based on my credibility assessments of
all of these named witnesses, no matter at which meeting(s) the com-
ments may have been made.
26 Much of my findings as to what Olson said at the meetings come
from his testimony, which I have credited as to these meetings. How-
ever, Olson did not appear to have a complete memory of these meet-
ings, including comments such as “I don’t remember exactly,” in his
testimony. I have, thus, also credited the General Counsel’s witnesses
who added to Olson’s testimony and whose testimony Olson did not
deny. I have credited Rex Mang and Kathy Mankin that Olson said that
the Respondent had made mistakes, that it wanted to do better, and
employees should give Respondent a chance, and credited Sharon
Cassel that Olson said he was at the meeting to talk about the Union
and that he was against it.
27 General Counsel witnesses Karboski, Mang, Mankin, and Cassel
testified as to the subject of the layoff of Sobiech being discussed at
one or both meetings, as did Respondent witnesses Olson and Blanquel.
The version of each witness is slightly different, but not necessarily
inconsistent, except that both Olson and Blanquel took credit for ad-
dressing the Sobiech issue at the second meeting. All of the witnesses
impressed me both by their demeanor and answers, as making signifi-
cant efforts to recall an event that occurred some time ago and testify-
ing truthfully as to it. Thus, I credit Olson as to the Sobiech discussions
at the meetings, and supplement that finding with the not inconsistent
testimony of both the General Counsel’s and the Respondent’s wit-
nesses.
28 I credit both Olson and Cassel who testified that employees had
questions as to the Sobiech layoff.
BAPTISTA’S BAKERY, INC. 559
and mentioned the question raised at the meeting.29 Mayer told
Olson that one of the disciplinary writeups in Sobiech’s per-
sonnel file contained a notation to the effect that Sobiech
should consider relocating to a different position. At Olson’s
request, Mayer gave Olson a copy of the writeup.
Olson took Sobiech’s writeup with him to his second captive
audience meeting. At the second meeting, Olson, with Blan-
quel, told the assembled employees that, in fact, Sobiech had
been offered another position and that he had it in writing,
“right here.” None of the employees asked to look at the write-
up, and Olson did not actually show the write-up to any of the
employees at the meeting.
After the meeting, Olson, Blanquel, Cassel, and Mankin had
a side conversation. Mankin and Cassel asked questions about
why Sobiech was laid off. Olson and Blanquel offered to show
them Sobiech’s personnel file. Cassel asked why the “pasta
people” (the employees who had come over from AIPC) were
being hired at higher wages than the Baptista’s employees had
been earning. Blanquel answered that it was because of “what
they brought to the table.” Both Blanquel and Olson asked if
Cassel and Mankin had any ideas on “how to improve,” and
said that they wanted to make things better. Blanquel said that
if any of the employees wanted to meet them outside of work,
at any time, they would be willing to answer questions and “try
to convince us that Baptista’s was going to be a better place for
us and things were changing and they were striving to work
towards that.” At that point Cassel and Olson left the conversa-
tion.30
After Olson and Cassel left, Blanquel and Mankin continued
to talk. Blanquel again asked Mankin if she had any ideas on
how the Respondent could improve. Mankin responded that
she would have to think about it. Blanquel said that he would
take Mankin out to dinner and would pay for it so they could
discuss her ideas. Mankin responded that she wouldn’t do that
by herself. Blanquel said that she could take anyone and he
would pay for it out of his own pocket. Mankin responded that
she would think about it.31
I credit Blanquel’s testimony that during the course of his
employment by the Respondent as a supervisor he had previ-
ously solicited suggestions from a number of employees. The

29 In their brief, counsels for the General Counsel state that Olson
testified that Mayer was present at the first meeting, so it isn’t logical
that Olson would report to Mayer what happened at the meeting, if
Mayer had attended the meeting. But I do not view Olson’s actual
record testimony as necessarily meaning that Mayer attended the first
meeting.
Q. Who else from management was there?
A. In the first round of meetings the supervisor of the particu-
lar shift was there.
Q. Okay.
A. And then Tom Mayer.
Further, even if Mayer had attended the meeting, that doesn’t preclude
Olson and Mayer from later discussing what happened at the meeting.
30 My finding as to what was said during this conversation is based
on the credited and uncontradicted testimony of Cassel and Mankin.
As to this conversation, both witnesses demonstrated excellent recall
and answered questions without hesitation.
31 My finding as to what was said between Mankin and Blanquel is
based on the credited and uncontradicted testimony of Mankin.
essence of Blanquel’s testimony was that from the time he
started work as a supervisor he solicited suggestions from em-
ployees under his supervision as to how their work could be
performed better, easier, and faster. Blanquel testified that he
asked for such suggestions “because they do the job so they
should know what can we do for them to get the job easy. A lot
of times we in management we overlook things and when we
ask them they come up with good ideas.” Blanquel also testi-
fied, “A lot of times the employees they bring it up before me
to a manager and it was not accomplished and it’s something
we can do that is not costly, they can get things done faster and
better.”
E. The Election Campaign: Supervisor/Employee
Conversations
1. Blanquel conversation with Karboski
About 3 weeks before the election, Karboski was told by her
leadperson to report to Blanquel’s office where Blanquel and
Karboski spoke. Blanquel told Karboski that he wanted to give
her his take on the Union; that he didn’t believe in unions, and
that it’s not always the way they say it’s going to be. Karboski
said she wanted the Union in. Blanquel said that in the bargain-
ing, the parties could start from zero and employees could lose
their vacation.32
2. Blanquel conversations with Carvalho
Supervisor Blanquel and employee Carvalho had five con-
versations during the election campaign period in February and
March. In mid-February, Carvalho was told to report to Blan-
quel’s office. Blanquel told Carvalho that he might get paid the
following week as a lead baking process operator (BPO), rather
than just as a BPO.33 Blanquel then asked Carvalho if he knew
anything about the Union, Carvalho said he didn’t. Blanquel
told Carvalho that Carvalho would lose his vacation and senior-
ity and that everything would start from zero if a union came in,
and that the owner would close down the plant. Blanquel said

32 My finding as to what was said between Blanquel and Karboski is
based on Karboski’s testimony and Respondent’s admissions in its
answer, par. 9(a)(ii). Karboski was taken through the conversation a
number of times by counsel for the General Counsel, counsel for the
Respondent, and me0. She impressed me as trying her best to honestly
and accurately answer all of the questions of counsel. Her answer to
the last question from Respondent’s counsel, as clarified by me, is
consistent with the rest of her testimony and is credible. She testified,
“My basic recollection is he said we could start out from zero and could
lose our vacation.” In its answer, the Respondent admitted words simi-
lar to those testified to by Karboski, but denied she was told vacation
would be lost. The Respondent counsel’s position statement, admitted
in the record, was consistent with the Respondent’s answer. Blanquel
testified as to employees he had one on one conversations with, but did
not mention Karboski. He also testified that he didn’t remember speak-
ing to any employee about how contract bargaining worked or recall
telling any employee that if a union came in, everything started from
zero. Again, based on Karboski’s credited testimony and Respondent’s
answer, I find that either Blanquel’s memory is faulty or his testimony
as to this issue is not credible.
33 Carvalho had been acting as a lead person from June 2004 until
February 2005, but was not receiving pay commensurate with the lead
position. At the time of this conversation Carvalho was acting as a
lead.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD560
that he had worked for a union shop for 9 years and knew the
Union is a bad thing.34
About a week to 10 days after the first conversation, Blan-
quel and Carvalho spoke in the hallway outside the supervisor’s
office. Carvalho asked why he wasn’t receiving the pay for a
lead BPO. Blanquel said because “we were in the process of
union [sic] campaign.” Carvalho asked why he hadn’t been
paid as a lead since he had been performing the work for 8
months. Blanquel said, “It’s up to people upstairs.”
At the end of February, Carvalho complained to Blanquel
about receiving remuneration for 2 days in his paychecks in
lieu of 2 vacation days, when he did not request such in lieu
pay. Carvalho had, in previous years, accumulated all of his
vacation days to use in one long annual vacation and did not
want pay in lieu of vacation days because he wanted to con-
tinue his vacation practice.35 Blanquel told Carvalho that “it’s
the way it’s supposed to be, is new administration, new man-
agement.” In mid-March, Blanquel walked up to Carvalho in
the lunchroom and told Blanquel, “Joe, you were right. You
don’t have to take vacation days paid if you want.”36 Carvalho
then signed a form proffered by Blanquel, agreeing to pay back
the Respondent.
I also find, as to pay in lieu of vacation, that in July 2004 the
Respondent had introduced a new policy as to combining vaca-
tion pay and holiday pay into a single bank of paid time off,
and allowing employees the option of taking paid time off or
receiving remuneration in lieu of the time off.

34 In my observations, Carvalho, while experiencing some English
language difficulties, demonstrated the demeanor of a witness earnestly
attempting to truthfully answer the questions of counsel, both on direct
and cross-examination. He demonstrated good recall and was generally
consistent in his testimony. I find Carvalho to be a credible witness.
While his testimony as to the conversations with Blanquel was gener-
ally uncontradicted, Blanquel did answer, “No,” when asked by Re-
spondent’s counsel, “Did you ever tell any employees that the plant
would be closed?” Blanquel was not asked specifically whether he said
that or similar words to Carvalho. I also note that when Blanquel was
asked to name the employees he recalled individual conversations with,
he named five employees, but not Carvalho. Based on my observations
of the demeanor of the two witnesses, and the impressiveness with
which Carvalho testified, I credit his testimony as to all of his conversa-
tions with Blanquel. Given the level of detail Carvalho credibly testi-
fied to as to his conversations with Blanquel, Blanquel’s testimony that,
in effect, he didn’t talk about the Union to Carvalho, is not credible.
35 In 2004, the Respondent had announced a policy allowing em-
ployees the option of either taking paid time off or receiving money in
lieu of the time off. There is no evidence that Carvalho had made such
a request. In fact, the evidence demonstrates that Carvalho wanted his
vacation days, not the pay in lieu.
36 Subsequent to this conversation with Blanquel, and prior to the
election, Tom Mayer also had a conversation with Carvalho in which
the subject of Carvalho’s vacation preferences came up. Mayer told
Carvalho that the Respondent had just reinstated two employees who
had missed work because they were in jail, that the same flexibility
which allowed the Respondent to reinstate the workers, allowed the
Respondent to grant Carvalho the 3 consecutive weeks of vacation each
year, and that Carvallho should think about it because if a union came
in it would be different. I credit Carvalho’s testimony on direct exami-
nation as to this, rather than the similar answers he gave to summary
questions on cross-examination.
Also towards the end of February, Blanquel spoke to Car-
valho in the plant mixing room. Blanquel told Carvalho, “So I
want to show you that it’s true that Dennis Sobiech got a write-
up and this is his signature.” Blanquel showed Carvalho a pa-
per which purported to be the Sobiech writeup. Carvalho
looked at the paper, but didn’t reply.
3. Mayer conversation with Karboski
The Respondent’s vice president for human resources and
operating services, Mayer, and employee Karboski spoke in the
packaging room the day before the election.37 Mayer said
“Good morning,” and told Karboski that he had heard that she
was going to be the Union’s observer for the election. Kar-
boski said, “Yeah.” Mayer said that he was surprised that the
observer wasn’t Paul (Brzezinski). Karboski said that she had
picked her side early on and that she was going to stick with it.
Mayer replied, “I hope you know what you’re doing.” Kar-
boski said, “Well, if it didn’t work out we could vote the union
out in a year.” Mayer replied, “That’s what crack addicts think
too, that they can get off of it.”38
4. Lepak conversation with Mang
In mid-February, Brett Lepak, the Respondent’s vice presi-
dent of operations, and employee Rex Mang spoke in the mix-
ing room. Lepak walked up to Mang in the mixing room and
told him that “[w]e have good work force, they’re good work-
ers, and you don’t complain too much.” Lepak also told Mang
that “[t]hings were looking good.”39
5. Gardetto conversation with Mang
About 2 weeks before the election, Mang and the Respon-
dent’s founder and CEO Nan Gardetto spoke in the mixing
room.40 Gardetto walked up to Mang, mentioned that they go
back a long time and that he knew her whole family. Gardetto
asked Mang about an old friend they both knew. She told
Mang that “things will be getting better” at the facility.
Gardetto told Mang that Respondent maybe was going to go
back to offering anniversary awards to employees. A previous
program, which had been discontinued, provided that on certain
anniversaries of employment an employee could pick a prize
from a catalog.41
6. Mayer conversation with Mang
A week or two before the election, Mang was told that
Meyer wanted to see him. Mang went to Mayer’s office.
Meyer told Mang he knew the employees were kind of upset
that the Respondent had let Dennis Sobiech go, but that Dennis
had been making mistakes and Mayer was going to show Mang
Sobiech’s personnel file showing that Sobiech had made mis-

37 Based on the record, it is impossible to determine who initiated the
conversation.
38 My finding as to this conversation is based on the uncontradicted
testimony of Karboski, who testified with impressive demeanor and is a
reliable witness. In his brief, the Respondent’s counsel does not dis-
pute Karboski’s version of the conversation.
39 I credit Mang’s uncontroverted testimony as to this conversation.
40 I credit Mang’s uncontroverted testimony as to this conversation.
41 The previous program had been discontinued in about 1996 and,
thus, may have been in effect at Gardetto’s rather than Baptista’s.
BAPTISTA’S BAKERY, INC. 561
takes in the past. Meyer showed Mang a file which contained
something about what another supervisor had written about
Sobiech.
7. Blanquel and Sparks’ conversation with Mang
About 2 or 3 weeks before the election, Mang met for about
10 minutes in a supervisor’s office with Blanquel and Supervi-
sor Russ Sparks. Blanquel said that he had worked for a com-
pany that had a union and “they didn’t do nothing for him,” and
asked Mang why he would want to “pay so much money for
union dues.” Sparks said he worked for a company that had a
union and he agreed with Blanquel that “they promise you this
and promise you that . . . the union is not all that it cracked [sic]
to be.” Sparks gave his opinion that a union destroyed hockey
and that the NHL lost a year of play. Sparks showed Mang a
list of employees’ names and how much it would cost him each
month for union dues. Blanquel asked Mang for suggestions to
“make the company better.” Mang suggested that there should
be job postings with a signup sheet.42 At some point after the
conversation, Mang saw job postings in the lunchroom.
Respondent, in fact, posted an available job and signup sheet
on the lunchroom bulletin board from March 2-5. Respondent
had posted such job openings and signup sheets in the past, but
not during 2005. Respondent had posted jobs in 2000 and
2002, and sometime in 2004.
Blanquel had, on previous occasions, talked to Mang about
improving production processes. In 2004, when Blanquel first
was employed by the Respondent, as a supervisor, he asked
Mang, the BPO with the greatest seniority at that time, and
other employees, questions about how they did their jobs, and
how the jobs could be done better. Blanquel continued to ask
for suggestions, focused on the production of the Respondent’s
products and how the production processes worked. Blanquel
also asked other employees for suggestions beginning upon the
inception of his employment with the Respondent. These sug-
gestions involved improvements in the production processes.

42 Blanquel denied that he ever spoke to Mang about the subject of a
union during the time of the organizing campaign. Blanquel admitted
that he had a conversation with Mang during that time period, but testi-
fied, “I don’t remember exactly the conversation.” Sparks did not
testify. As noted, I did not find Mang to be an infallible witness but
was generally impressed with his testimonial demeanor and his earnest
attempts to truthfully answer questions to the best of his ability, rather
than just to give answers which were helpful to the General Counsel’s
case. Here, Mang demonstrated a good recollection for detail as to this
conversation, and on balance I credit his testimony over Blanquel’s
denial that he spoke to Mang about the Union during the campaign.
I note that Blanquel testified that he didn’t remember if it was during
the union campaign, but that “[w]hen I asked my employees, the people
that work for me, I tell them, you know, things are going to get better
for them to make their job easy. One of the things that he brought up
was why can’t they post a job.” Blanquel testified that the conversation
occurred as Blanquel was talking to Mang about the Respondent bring-
ing in new stronger hoses for cleaning. Because I found Mang to be a
generally reliable witness, and because I found Blanquel less so, par-
ticularly here, where his recollections were not strong and changed
during the course of his testimony, I credit Mang’s testimony that this
conversation occurred during the course of the union campaign, and
during a conversation in which Blanquel and Sparks were presenting
reasons to Mang why he should oppose the Union.
For example, Carvalho suggested placing air hoses closer to the
production line for cleaning the ovens. Other employees sug-
gested to Blanquel placing hot water hoses next to a production
line, more automatic systems, and putting alarms into oven
systems that did not have alarms. Blanquel sought these sug-
gestions from the employees he supervised in the mixing room
and the packaging area in order to improve the production
processes, and he testified, “It’s something we can do that is not
costly, they can get things done faster and better.”43
In addition to asking Mang for suggestions, prior to Septem-
ber 2004, supervisors regularly asked Karboski for her opinions
as to how the Respondent was doing. After September or Oc-
tober 2004, when Lepak was hired by the Respondent, he met
with all employees and asked for suggestions as to how things
could operate better.44 There is no evidence as to the number of
such meetings or the dates on which they occurred.
F. Postelection
1. Election day memo posting
On the day of the NLRB election, after the election, the Re-
spondent posted a memo from Gardetto and Howe to all em-
ployees. The memo, in pertinent parts, stated as follows:
Folks, the NLRB has informed us that all of you voted
today to continue to operate without a union.
. . . .
The vote was 22 to 21, and we sincerely thank every-
one for your show of support for keeping Baptista’s as one
team, and for believing that your futures are brighter by
working together to become a unified team.
. . . .
We also appreciate the “wake-up call” presented by
this union organizing drive and this close election result.
We know that much work remains to bring everyone to-
gether under one banner. . . .
Because of “challenged ballots,” the election is not yet
final. . . .
We acknowledge that we should have done a better job
of communicating the need for changes that took place, as
well as providing opportunities for employees to actively
participate in effecting those changes. We realize that the
greatest success comes when there is effective, continuous
communication, sharing of information, and employee
participation. You’ve all helped us start on this path and
we commit that this will be our environment going for-
ward.

43 I largely credit Blanquel as to his seeking suggestions from em-
ployees under his supervision, and that his questions and the sugges-
tions principally dealt with production processes. This testimony is
consistent with Mang’s testimony.
44 Karboski credibly testified that she attended meetings where Brett
Lepak asked all employees for suggestions about how things could
operate better. No dates were established for these meetings, except
that it/they occurred after September 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD562
2. Consultant Susan Wehrley
Susan Wehrley is a self-employed organizational and em-
ployee development consultant. Following a discussion be-
tween Mayer and Gardetto in January, the Respondent retained
Wehrley. The record does not delineate the exact date Wehrley
was retained by the Respondent. The Respondent had previous
utilized Wehrley’s services in 2000 and 2001 to work with the
Respondent’s management in improving communication skills
and blending management styles and managers’ personalities.
This work principally involved the top managers of the Re-
spondent, including Gardetto and vice presidents. On February
10, Wehrley sent an e-mail to Howe, with copies to Gardetto
and Mayer, confirming a meeting on Saturday, February 12,
and stating, “Also, if there is a decision made ahead of time on
which way you are choosing to go with the union, be sure to let
me know ASAP, as that will change what I focus on in my
session.”
Wehrley met on February 12 with the Respondent’s manag-
ers, including Gardetto, Mayer, Howe, Olson, Lepak, Sertich,
Bequest, Ken Thompson, Blanquel, Sparks, Jon Becker, Amy
Roebuck, and Marlenea Jackson. Following the meeting,
Mayer sent an e-mail message to all of the attendees, with a
copy to Wehrley, which contained the following in pertinent
part:
Folks, thanks for spending your Saturday morning in
our meeting today.
. . . .
As we go forward in this effort, the best thing you can
do is to just be yourself, the person that people know. If
you worry too much about the legal aspects, or try to ex-
press your feelings in the legal words and phrases used by
our attorneys, it will be clear to the people on the shop
floor you’re not being yourself and they will not accept
you as sincere.
. . . .
By being yourself, keeping it simple, and following the
rules on the TIPS card you’ll satisfy the legal side of
things while having great communications with your peo-
ple offering facts and opinions that will help them realize
how the Teamsters are not in their interest.
We’ll all talk frequently as we go forward. I’ll be glad
to answer your questions, help you think-through how to
handle situations you may encounter, and we’ll overcome
any minor mistakes we make which I’m sure will be few
and far between.
Wehrley met three times in February with the Respondent’s
top management, including Gardetto, Howe, Mayer, and CFO
Jon Becker. At these meeting, Wehrley was informed of the
existence of the Union’s organizing drive, that management
was concerned about the drive, that management wanted to
know the cause of employees wanting a union, and manage-
ment desired not to have a union. Wehrley testified, “. . . it was
clear that they didn’t want a union, and there was concern about
why that there was an attempt, in the beginning, to even have a
union, what was the cause of the employees wanting a union.”
In tailoring her work for the Respondent, discussed below,
Wehrley designed her study, in part, to find out the root cause
for disgruntled employees. Wehrley testified, “It wasn’t neces-
sarily tied exactly to the union, but there was a concern about
why are people disgruntled.”45
Wehrley also conducted workshops with plant supervisors.
During these workshops, she talked about communication,
leadership, and teamwork, and “we talked about how might
they do that while the union was going on.” The subject of the
Union came up in more than one of these workshops.46
Wehrley also met with plant employees on three occasions,
the first being on May 10, almost 7 weeks after the election.
Attendance at the meetings was mandatory for the plant em-
ployees. At the first meeting, Mayer introduced Wehrley to the
assembled plant employees, and then left the meeting. Wehrley
told the employees that Gardetto had asked her to help improve
communications between Baptista’s and its employees, and to
help the longtime Baptista’s employees merge with the newer
employees hired from AIPC (the “pasta people”).47 Wehrley
distributed a 9-page questionnaire48 to the employees, asked
them to complete and return the questionnaires and promising
them a $10 gift certificate at a local restaurant in return, and
assured them the questionnaires would be kept confidential.49
Wehrley again met with plant employees on May 18. Prior
to this meeting, Mayer posted a memo to all employees an-
nouncing the May 18 meeting. The memo contained the fol-
lowing: “Please make sure your surveys are completed as best
you can and sealed in the envelopes that Susan provided. If
you’ve lost the envelope, please put your completed survey in
another envelope so that it remains confidential. Thanks, Susan
looks forward to meeting with everyone again, and she’ll have
$10 Culver’s Restaurant gift cards as a ‘thank you’ for every-
one who returns a survey to her.” Wehrley conducted this sec-
ond meeting, collected the completed questionnaires, and
passed out the Culver gift cards. Wehrley conducted a third

45 My findings here are based on exhibits, and the testimony of
Wehrley, which I have credited. Although displaying some of the
normal problems associated with trying to recall events that occurred
some time ago, Wehrley impressed me by her demeanor and answers as
making every effort to honestly answer the questions asked of her on
direct and cross-examination. While she maintained a longtime busi-
ness relationship with the Respondent, she did not demonstrate any bias
towards the Respondent’s position in her testimony. On occasions
when her memory failed, she was able to recall events upon being
shown exhibits which memorialized the events.
46 Again, this finding based on the credited testimony of Wehrley.
47 My findings as to the meeting are based on the credited, noncon-
flicting, testimony of Wehrley, Karboski, Mang, Brzezinski, and
Meyer.
48 It appears from the record that completing the surveys was volun-
tary in that an incentive gift certificate was offered for doing so. Kar-
boski testified on cross-examination as follows:
Q. She told you it would be strictly voluntary?
A. I don’t know if it was voluntary.
Q. It was not voluntary to come to the meetings but it was
voluntary to complete the assessment. Right?
A. Yes.
49 Karboski, on two occasions, testified that Wehrley told the em-
ployees that the questionnaires would be kept confidential. She also
testified that Wehrley said that the “assessment” would be shown to
management. The assessment is the document Wehrely prepared from
the information garnered from the questionnaires.
BAPTISTA’S BAKERY, INC. 563
meeting in late May with the plant employees during which she
explained her composite summary of the questionnaires.50
The survey, attachment 4 to the complaint, covers a wide
range of issues concerning employee attitudes about their jobs
and employment with the Respondent, including some directly
related to their terms and conditions of employment. Questions
which arguably impacted on terms and conditions of employ-
ment included: How would you rate your overall satisfaction
with the direction of the company? Name 1–3 changes you feel
have been most negative (positive) in the last year and why?
What do you need so that you can trust your manager more?
What is Baptista’s greatest weakness (strength)? What is the
greatest threat to Baptista’s? The survey also asks employees
to rank the Respondent on a 1 to 5 scale in areas including:
“There is recognition and incentives for a job well done.” “My
pay is competitive with jobs at other companies that involve
similar work.” “Vacation and holidays.” “Benefits.” The sur-
vey asks: “What suggestions do you have for recognition pro-
grams and incentive programs?” “List 3 instances in the past 6
months where [you] felt the Company went beyond your expec-
tations. In other words, what did the Company do for the em-
ployees to go the extra mile?” “What would you like the Com-
pany to do to go the extra mile for you?”
After the meetings with the plant employees, Wehrley con-
tinued to meet and consult with the Respondent’s management
from August through November in a “strategic planning proc-
ess.” There were four or five of these meetings, and the Union
continued to be a topic “on and off.” The main topic at these
meetings was a strategic plan for the Respondent, which was
broken up into “people,” “productivity,” and “profit.” During
these discussions, while the Union was not the focus, Gardetto
brought up the subject of the union organizational campaign,
that it was a “symptom,” that it was something that can’t be
ignored, and it was “something going on that we have to ad-
dress.”51
G. Providing Benefits
1. Employee-of-the-year award and prize
On March 28, 5 days after the election, the Respondent
awarded an “employee-of-the-year” prize, consisting of a $500
gift Sears gift certificate and a plaque, to plant employee John
Rautio. The Respondent had never previously awarded an
employee-of-the-year prize, although both in 2005, and in past
years it has awarded perfect attendance prizes both for the cur-
rent year and consecutive years. The single-year perfect atten-
dance award has been a $75 restaurant certificate and a plaque,
each year since 2001. The consecutive year’s perfect atten-
dance award has been a $100 savings bond for each year over
one, and a plaque, each year since 2001. Mayer testified that
the Respondent created the employee-of-the-year award be-
cause “2004 was a year of significant change and we had an

50 The record does not contain much detail as to this meeting. Only
Wehrley testified as to this third meeting, some of the other witnesses
only remembering two meetings. Wehrley, as discussed earlier, is a
reliable witness, and I credit her recollection of a third meeting.
51 From Wehrley’s credited testimony.
employee who really distinguished himself for all the different
things he did.”
2. Baseball game outing and jacket
In late April, the Respondent provided its plant employees
with free jackets with Baptista’s logo, in conjunction with a
complimentary catered outing to a Milwaukee Brewers baseball
game. Respondent gave plant employees their choice of jacket
style, including zip-up windbreakers and pullover fleece, and
color. The jackets were accompanied with a memo from
Gardetto and Howe which stated, “As we move Baptista’s for-
ward it is important that we do so as one unified team.” Re-
spondent requested employees to wear their new jackets to the
Brewers outing. Respondent purchased the jackets at a cost of
$2445.38.
The Respondent, in early April,52 invited its plant employees,
their children, and a guest, to be its guests at a Milwaukee
Brewers baseball game on May 1. The invitational memo
stated, “We have a block of tickets reserved for Baptista’s team
members . . . spouses or significant-others, and kids. Baptista’s
is providing the food and game tickets, your only cost will be
for parking.”
The baseball outing included tickets to the game, and a buf-
fet meal in the stadium’s “Dew Deck,” a private section. The
buffet included various main dishes, salads, cakes, soft drinks,
and two alcoholic beverages per ticket. Gardetto’s, the Re-
spondent’s de facto predecessor, had sponsored numerous
events at the Brewers’ ballpark, but the 2005 event was the first
one sponsored by the Respondent. Gardetto testified that the
Respondent had not previously sponsored a Brewers’ event
because, “. . . we weren’t making money.” Gardetto also testi-
fied that such an outing is “a very expensive event to hold and
we didn’t have the money.” At the time of the organizational
campaign, the Respondent was not making a profit and was not
consistently profitable until the first part of 2006.53
In the past, prior to 2005, the Respondent has sponsored
other social events for employees and given free clothing to
employees. In October 1999, the Respondent sponsored a bar-
beque to celebrate the new business and the fact that there was
no lost time due to employee injuries for a year. Mayer cooked
steaks and baked potatoes for all the employees. In December
1999, the Respondent sponsored an all-employee meeting and
dinner, to “talk about what was going on in the business,” and
conducted a drawing for six tickets to a Green Bay Packers
football game.
In March 2000, the Respondent sponsored a “chili cookoff,”
in which Mayer prepared his chili for the employees, and em-
ployees were requested to bring in to work their own chili or
side dishes. There were no prizes for the chili event. In Janu-
ary 2000, the Respondent sponsored a “baby guessing contest”
in which employees tried to match baby photos to the adult,
with a restaurant certificate prize. In April 2000, the Respon-
dent sponsored an all-employee meeting with barbeque, at
which the Respondent provided “brats and buns,” and employ-

52 The memo announcing the outing requested that employees sign
up no later than April 7.
53 Howe’s credited and uncontradicted testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
ees were requested to bring in other dishes and desserts. On
October 29, 2000, the Respondent sponsored a “First Anniver-
sary Party and Packer’s Blast” held in a park, at which employ-
ees were invited to bring side dishes and watch a Packers game
on television while the Respondent provided a pig roast and
soft drinks. Also, apparently in 2000, the Respondent spon-
sored a restaurant-catered lunch at the plant to thank employees
for shifting their work schedule prior to the Thanksgiving holi-
day.
Most years the Respondent has provided turkeys to its em-
ployees, at a cost to the Respondent of about $10 to $15 per
turkey, in conjunction with its annual holiday luncheon for
employees and has also provided “Fiesta Italiana” tickets to
employees during the summer, which tickets the Respondent
obtained at no cost to itself, but would have cost $10 to pur-
chase. On June 27, 2002, the Respondent sponsored an all-
employee meeting and barbeque at which the Respondent pro-
vided most of the food.54 On August 12, 2002, the Respondent
sponsored a third anniversary cookout, at which the Respondent
provided picnic fare, and invited employees to bring food to
share.
The Respondent has also previously purchased logo clothing
for its employees. In 2000, the Respondent provided Baptista’s
logo button-down khaki shirt with “Founding Team Member”
printed on the cuff to employees employed at the inception of
the Respondent, and green logo sweatshirts to employees in
August 2002. Respondent purchased the “Founding Team
Member” shirts at a cost of $1,377.40.
3. Two dinners for sanitation and quality control employees
I find, and the parties stipulated, that in June 2005, Marlenea
Jackson, the Respondent’s manager of quality assurance and
sanitation, invited all of the employees of those departments,
along with a guest, to a complimentary dinner at Famous
Dave’s restaurant for the stated purpose of thanking employees
for a successful sanitation audit by the AIB (American Institute
of Baking). I further find, and the parties stipulated, that 2 or 3
weeks later,55 Howe and Gardetto took the entire same group,
and Jackson, to Ingrilli’s restaurant for another complimentary
dinner, for the stated purpose of thanking employees for a suc-
cessful audit by the AIB. The price range for dinners at Fa-
mous Dave’s is $10 to $20. At Ingrilli’s, the price range is $15
to $25, and higher.56 The Ingrilli’s dinner included alcoholic
drinks, the Famous Dave’s dinner did not. Jackson testified
that she took out the entire quality assurance and sanitation
department for dinner because she was pleased with the rela-
tively high score the Respondent received from the AIB audit
and to reward the employees of those departments for their hard
work which she believed led to the audit score.
I credit Marlenea Jackson’s uncontradicted testimony as to
the background of the AIB inspection as follows: the Respon-
dent hired Jackson as quality assurance and safety manager in
late October 2004. Upon employment, Jackson determined that

54 Mayer testified that two to four times a year the Respondent has
some type of barbeque or employee meal.
55 Jackson testified that the second dinner was 2 or 3 weeks after the
first dinner.
56 Uncontradicted and credited testimony of Kathy Mankin.
the facility had not been properly maintained and that much
work needed to be performed so that the Respondent’s facility
could pass the AIB audit. The AIB auditor inspects for cleanli-
ness, equipment maintenance, cleaning cycles, and employee
sanitation, among other items. Preparation for the audit began
in December 2004 and continued up until the actual audit the
last week of May, and included the usage of eight or nine tem-
porary employees the weekend prior to the audit. The Re-
spondent scored 870 out of 1000 on the audit, an “excellent”
rating with “superior” being the highest, and a score that Jack-
son characterized as a “B.” There is no evidence as to when the
Respondent received the AIB inspection score.
H. No-Solicitation/No-Distribution Rule Posting
There is little factual dispute between the parties as to the
Respondent’s posting of its no-solicitation/no-distribution rule.
On February 21, the Respondent posted the rule on a glass-
enclosed bulletin board in the employee lunchroom. No rule
had been previously posted in the plant, and the Respondent
posted the rule solely in response to the Union’s organizing
campaign.57 Respondent had an existing rule published in its
employee handbook, but not posted, which prohibited solicita-
tions during working time, not including breaks, lunch, and
before or after scheduled work, and prohibited the distribution
of literature in working areas, which did not include the lunch-
room or parking lot.
The rule posted by the Respondent on February 21 restated
the existing rule and added the following: “Please be advised
that employees who violate this policy will be subject to disci-
plinary action, up to and including discharge from employ-
ment.” The posting also directed employees to bring any ques-
tions concerning the policy to management or to Mayer. The
no-solicitation rule contained in the handbook did not include
the disciplinary language posted in the notice. Little evidence
was presented as to the enforcement or nonenforcement of the
February 21 posting.
In a section of the employee handbook separate from the no-
solicitation rule, the Respondent sets forth a description of its
disciplinary procedures and penalties which, in general, sets
forth a five-step system of progressive discipline including
discharge for violations of the handbook’s guidelines, but also
states that “[t]here may also be instances where disciplinary
action will not be progressive, depending on the severity and
circumstances of the situation.” The disciplinary section of the
handbook also states as follows: “Baptista’s will attempt to
administer discipline fairly based on the circumstances. Be-
cause it is impossible to list every conceivable infraction, these
guidelines may not be all-encompassing and can be amended
by Management within its sole discretion.” The exact language
of the addition to the no-solicitation rule does not appear in the
handbook.
Although the complaint does not allege disparate enforce-
ment, and counsels for the General Counsel acknowledge that
the posted and preexisting rule is not facially invalid, the rule
appears not to have been particularly enforced either before or
after its posting in the lunchroom, either prior to or during the

57 Mayer so testified as to the reason for the posting.
BAPTISTA’S BAKERY, INC. 565
organizational campaign. Thus, sometime after the Union’s
organizing drive began, Supervisor Jackson solicited employee
Cassel for a fund raiser for her daughter, and handed her a bro-
chure in the lab area. Jackson handed Cassel a brochure,
pointed out an item to Cassel that she might like, told her to
show the brochure to other lab techs, and if they wanted to buy
something to give her the money. Cassel purchased two
items.58 This solicitation occurred during worktime. Jackson
also engaged in a similar solicitation of employee Mankin in
the lab on worktime, before the organizing drive.59 On a num-
ber of occasions, prior to the Union’s organizing drive, Kar-
boski observed solicitation for the sales of various products
including home interior products and Avon products through
the usage of catalogs left in the lunchroom. Additionally, about
3 or 4 years prior to the posting, Karboski sold raffle tickets in
the lunchroom to other employees and to at least one supervi-
sor.60 Further, the parties stipulated that prior to the date the
no-solicitation rule was posted in the lunchroom, “on various
occasions employees engaged in the sale of commercial items,
including for example for civic and charitable groups, in vari-
ous nonproduction areas of the plant including the office area,
without objection by the Respondent.”
I. Discharge of Kathy Mankin
QA tech (quality assurance technician) Kathy Mankin was
initially hired by the Respondent in about 1999. Prior to the
permanent layoffs of February 2, she had worked as a packager
(packaging department employee), but had also filled in as a
BPO, and as QA tech “once in a while.” Mankin was perma-
nently laid off along with a number of other employees on Feb-
ruary 2. When she was laid off, Mayer told her (and two other
employees who were with her at the time) that “it wasn’t a
reflection on our work, that the company just needed to cut
back.”61 The day after she was laid off, Mayer called Mankin
and offered her a position as a QA tech. Mankin began work as
a QA tech for the Respondent a few days later.
The Respondent discharged Mankin on August 7. During
the months prior to the discharge, the Respondent employed
three QA techs, Mankin, Sharon Cassel, and Judy Rautio, in its
quality assurance department, all of whom reported to Depart-
ment Supervisor Marlenea Jackson. Mankin was an avid sup-
porter of the Union, and Respondent was admittedly aware of
such support. The Union’s letters of February 7 and 25 to the
Respondent named Mankin as a member of the Union’s orga-
nizing committee. Mayer received a copy of the Union’s
March 23 “Vote Yes” campaign letter containing the signatures
of 14 employees, including Mankin. Jackson testified that she
observed Mankin wearing a union button on her coat “every
day, so I naturally assumed that she was for the Union.”
The Respondent concedes in its brief, that “Mankin was the
only QA tech whom Ms. Jackson believed to be a Union sup-
porter.” Indeed, fellow QA tech Cassel told Jackson that Cas-
sel was not for the Union, “she did not want the Union at Bap-

58 Uncontradicted and credited testimony of Cassel.
59 Uncontradicted and credited testimony of Mankin.
60 Uncontradicted and credited testimony of Karboski.
61 Uncontradicted and credited testimony of Mankin.
tista’s.”62 There is no record evidence as to the union leanings
of the third QA tech, Rautio, or the Respondent’s perceptions
of her leanings, except that she is not named as a member of the
Union’s organizing committee in the Union’s letters to the Re-
spondent.
Beginning in June, Mankin, Cassel, and Rautio experienced
a number of performance-related problems.63 About June 22, a
customer of the Respondent rejected a shipment of 2710 cases
of butter flavored pretzel spindles that had been produced on
June 20 and 21, because of what the customer deemed unac-
ceptable flavor. The rejection cost the Respondent over
$12,000 in lost revenue. Jackson investigated and discovered
that none of the three QA techs had documented sensory tests
which they were required to perform every 4 hours. Jackson
disciplined all three QA techs, handing Mankin and Rautio,
both of whom had no prior discipline, a first written warning,
and giving Cassel, who had received a written warning a few
months earlier, a second written warning. In her testimony,
Mankin claimed she actually had performed the tests, but had
failed to document them.
On July 26, Mankin received a performance counseling from
Jackson and Mayer. During the counseling, Jackson reviewed
perceived shortcomings in Mankin’s job performance, includ-
ing that she was spending too much time in the lab and needed
to spend more time on the production floor. During the meet-
ing, Mayer told Mankin that he had known her for many years
and had always thought of her as an intelligent person who
cares about job performance. Both Mayer and Jackson asked if
there was something they could do to help her do her job better.
Mankin responded that she didn’t know, and she apologized for
letting other people down and for not doing her job faster.64
On July 29, 3 days later, Mankin received a second written
warning for “unacceptable performance.” This discipline re-
sulted from Mankin’s admitted failure to perform sensory tests
as per a schedule that Jackson had imposed on the QA depart-
ment. In her testimony, Mankin conceded that she had not
performed the tests, and that coworker Judy Rautio had advised
her to perform the tests, but placed the blame as follows: on a
coworker who allegedly told Mankin that if Mankin didn’t
finish the tests, the coworker would; on coworkers who worked
other shifts and could have performed the tests but didn’t; on
Jackson who allegedly did not give her a schedule of “things to
do that evening;” and that it wasn’t really necessary to perform
the sensory tests according to the schedule because “the sen-
sories had been collected over a period of days, they hadn’t
been done every day.” Mankin also testified that even though
she did not perform the tests on Thursday as per the schedule,
she performed them her next day of work, Monday, and there
was no production in the plant between Thursday and Monday.
On August 4,65 Mankin received a final written warning for
“unacceptable performance,” involving the failure of all three

62 Uncontradicted and credited testimony of Jackson.
63 Conceded by counsels for the General Counsel in their brief.
64 My findings as to this counseling are based on a record exhibit,
and the noncontradictory testimony of Mankin, Jackson, and Mayer.
65 The shift overlapped from August 4 to 5. So, while the shift be-
gan on August 4, it ended on August 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
QA techs, Mankin, Rautio, and Cassel, to correctly weigh sam-
ples of a product in a production run. On August 5, Mankin
signed the warning, which contained the following: “I, Kathy
S. Mankin, have received this Final Warning for Unacceptable
Performance. I understand that my job is in jeopardy. I under-
stand that any future instance of Unacceptable Performance of
any sort will result in my discharge from employment with
Baptista’s Bakery, Inc. [capitalization in original].” When
Jackson handed the written warning to Mankin, she told her
“that this was a final written warning and that the next step for
her would be out the door.”66
The incident resulting in Mankin’s final warning began on
the August 4 shift. As part of their job duties, QA techs were
supposed to weigh sample bags of “Houdini Smoky Mozza-
rella” during their production run, to ensure that the bags were
between 3 and 3.125 ounces. Mankin, admittedly, simply com-
pared the weight of the sample bag to the range of bags
weighed during the prior shift, rather than to the guidelines for
the weight. Inasmuch as the prior shift’s bags were under-
weight, so were the bags on Mankin’s shift, which resulted in
the production of 55,000 bags of the product which were un-
derweight and had to be repackaged. Thus, all three QA techs
had documented the wrong weights, and all three were disci-
plined. Cassel, further along in the Respondent’s progressive
discipline system, was discharged. Rautio received a second
written warning. In her testimony, Mankin blamed the weigh-
ing problem on her difficulty converting grams to ounces.
Thus, instead of doing the conversion, she simply checked to
see whether the weight range during her shift was the same as
the range during the prior shift. It turned out both shifts were
wrong.
Earlier on the same shift beginning on August 4 Jackson had
instructed Mankin explicitly that she was to perform certain
tasks before the end of her shift. Mankin testified, without
contradiction, that Jackson told her to “take the two products
that were on hold and take samples out of each box of the prod-
ucts and to look at them and put them on the side for her for the
next day to look at.” Jackson told Mankin that “they felt that
there was probably some burned product in some of them and
they may not be acceptable to send out.”67 At Mankin’s re-
quest, Jackson wrote a note to Jackson detailing the tasks.
At the end of her shift, when she was called in to Mayer’s of-
fice to receive her final written warning, Mankin had started,
but not completed, the tasks assigned to her earlier by Jackson.
As a result of receiving the final written warning, Mankin be-
came upset and left the plant, leaving no notes to the effect that
she had not finished the assigned tasks, or any explanation
therefor. Further, Mankin did not tell Jackson or Meyer that the
assigned tasks were not completed, when meeting with them to
receive the final written warning, nor note the failure in the
departmental logbook. Mankin testified, “I was very shaken,
and I didn’t even think to tell them that I hadn’t finished it.”

66 Based on Jackson’s credited testimony. During her own testi-
mony, Mankin did not mention this part of the discussion, but said
nothing to contradict it. Mankin also testified that Meyer was present
when Jackson presented the final written warning to her.
67 Uncontradicted and credited testimony of Mankin.
Later on August 5, after going home, Mankin’s husband took
her to a hospital, as she was extremely upset from the occur-
rences earlier at work. Mankin’s husband called the Respon-
dent and left messages for Jackson and Mayer to the effect that
she would not be in to work because she was very upset and
was being taken to the hospital. Mankin testified that at the
hospital she was diagnosed as having an “anxiety attack.”
The Respondent discharged Mankin on August 7. The dis-
charge memo referred to Mankin’s failure to perform the test-
ing duties Jackson had assigned to her on August 4, and re-
ferred to the other written warnings received by Mankin, in-
cluding the final written warning. There is no evidence that
Mankin’s failure to report to work on or after August 5 played
any role in the discharge decision. The Respondent did not
offer Mankin the alternative of a different job before it dis-
charged her.
Sharon Cassel, a QA tech, was also discharged based on a
series of performance-related disciplinary warnings. At the
time of her final warning, before her discharge, Mayer dis-
cussed with Cassel whether she would like to work in sanita-
tion, packaging, or as a fork truckdriver. Cassel testified that
Mayer asked, “[T]hat maybe I would even like some office
work.” A similar discussion occurred during a meeting which
Jackson also attended. In his testimony, Meyer denied that he
ever offered Cassel a different position.
In her testimony on direct examination, Cassel was asked if
she was offered different positions within the Company. She
answered, “Yes,” and testified that it occurred at the time of her
final warning. Counsel for the General Counsel then asked her
what positions she was offered, and Cassel answered in conclu-
sionary fashion as follows: “Sanitation, fork truckdriver, pack-
aging machine operator and then Mr. Mayer asked that maybe I
would even like some office work.” Cassel was not asked what
her response to Mayer was, and Cassel did not testify as to what
Meyer’s words were in conveying the alleged offer of another
job.
Based on Cassel’s testimony, and the denial by Meyer that
he offered another job to Cassel, I find that Mayer did not for-
mally offer Cassel another job, but was simply gauging Cas-
sel’s reaction as to that possibility. As I have noted elsewhere,
the testimonial demeanors of both Cassel and Mayer were im-
pressive, and they are reliable witnesses. Thus, I credit
Mayer’s testimony that he did not offer Cassel another job, and
I credit Cassel’s general testimony about the conversations, but
cannot conclude that an offer was, in fact, made. Cassel testi-
fied that she was offered different positions, but her testimony
was just in summary, and did not contain either the words or
the approximate words of the offer. In other words, both the
counsel for the General Counsel and Cassel, characterized
whatever words Mayer used as an “offer.” But the record does
not contain whatever words Mayer used, other than as set forth
above, or evidence other than Cassel’s conclusionary testi-
mony, from which I can find that, in fact, an “offer” was made
or that Mayer wasn’t being truthful in his testimony that he did
not make such an offer.
Prior to the union activity involved herein, on June 26, 2004,
Mayer met with Sobiech concerning alleged shortcomings with
BAPTISTA’S BAKERY, INC. 567
Sobiech’s work performance. In Mayer’s memo memorializing
the meeting with Sobiech, Mayer states as follows:
I suggested to Sobiech that he consider a move to Packaging
now, telling him that even though this would mean a wage reduc-
tion, he would at least be working in a job in which he might dem-
onstrate better performance and not risk losing his job if his errors
continue. Sobiech told me he was not interested in moving to
Packaging.
As with Cassel, I cannot conclude that Mayer’s comment to
Sobiech constituted an offer of a job in a different department.
J. Discipline of Donna McCall
Donna McCall was hired by the Respondent in 2002 and re-
mained employed until September 18, 2005. She took an ex-
tended medical leave from January 23 to April 27. During her
approximately first 2 years with the Respondent, McCall was
employed as a sanitation worker. During the balance of her
time with the Respondent, McCall was employed as a BPO. As
is conceded by the Respondent in its brief, the Respondent
learned McCall was active in the Union when it received the
Union’s February 7 letter naming her and others as members of
the Union’s organizing committee. McCall was also named as
a member of the Union’s organizing committee in the Union’s
second letter to the Respondent, and her signature appeared in
the “Vote Yes” letter.
On July 27, the Respondent issued a final written warning to
McCall. The warning memo was entitled, “Final Warning—
Unacceptable Conduct: Insubordination and Racially Offen-
sive Remarks.” What follows are my factual findings as to the
incident that led to the discipline, based on the largely noncon-
tradictory testimony as to the incident of McCall and Blanquel.
On July 18, Blanquel, the Respondent’s shift manager, be-
came aware that the Respondent was short handed in the pack-
aging room. Blanquel called Raul Lara, lead person in the
mixing room, and asked Lara to send the “free person” to the
packaging room.68 Lara responded that McCall “was just
cleaning the oil room.” Blanquel instructed Lara to send
McCall to the packaging room. Blanquel testified that boxes
needed to be made in the packaging room because the produc-
tion line couldn’t be stopped, and if there were no boxes, prod-
uct could be wasted or thrown away, and that it was, thus, an
emergency.
At the time Blanquel called Lara, McCall was cleaning a
spill in the oil room. Lara went to the oil room and told McCall
that she “had to go to packaging.” McCall responded, “You got
to be kidding me.” Lara told her that he wasn’t kidding her.
McCall said, “Let me finish what I started [cleaning the spill].”
Lara told her she had to go right then. McCall responded that
she thought “it was bullshit, that there were other BPO’s that he
could have took and I feel like I’m being treated like a nigger69

68 Blanquel testified that there was usually one free person in the
mixing room, apparently an employee without immediately pressing
duties.
69 In order to avoid burdening this decision with repeated use of the
slur, I have chosen to use the euphemism “N-word” hereafter.
around here.” McCall eventually threw down the squeegee she
had been using and walked towards packaging.
At this point, after waiting for about 15–20 minutes, when
nobody from the mixing room appeared in the packaging de-
partment, Blanquel walked towards the mixing room to see
what the problem was. Blanquel arrived in time to see Lara and
McCall speaking, and McCall throw the squeegee. Lara told
Blanquel what McCall had said to him. Blanquel and McCall
then walked through the mixing room to get to the packaging
room. McCall stopped along the way and spoke to another
employee.70 Blanquel told her, “I told you I wanted you to go
to packaging.” McCall told Blanquel, “You always treat me
like a [“N-word”].” Blanquel asked her, “Why did you even
say that. If you didn’t want to go I can send somebody else or
something. There is no reason for you to treat me this way.”
McCall then walked to the packaging room and began perform-
ing the requested work.
A few hours later, McCall walked up to Blanquel and said,
“I’m really—I was so hot. I was so angry about the situation. I
apologize for what I say.” I didn’t mean the “N-word”71 like
you think I meant the word.” Blanquel responded, “Well, it
was offensive for me because I’m a minority too, you know.
I’m Mexican.” McCall responded, “Well, I’m an Indian.”
On July 27, 9 days later, Blanquel, accompanied by Supervi-
sor Jerry Bequest, told Human Resources Vice President Mayer
of the incident involving McCall, Lara, and Blanquel. Blanquel
told Mayer that McCall had made a racially offensive remark to
him and Lara. Blanquel described the incident to Mayer.72
Mayer asked Blanquel questions about the incident.73 Mayer
told Blanquel and Bequest that he thought a disciplinary action
was appropriate for something “so offensive.” Blanquel and
Bequest agreed. Mayer asked why they waited 9 days to tell
Mayer of the incident. Blanquel responded that he had to think
about it because it was something that was upsetting, but he
also wanted to make sure he wasn’t reacting because of that
upset. Mayer told Blanquel that he should have told Mayer of
the incident when it happened. Mayer, Blanquel, and Bequest
agreed to a disciplinary final warning, but Mayer decided to
also speak to Lara before imposing the discipline.
That same day, Mayer spoke to Lara about the incident.
Lara told Mayer that Blanquel had asked him to send McCall
from the mixing room down to the packaging room, and that
when he told her to go to the packaging room she said, “Why
do you always treat me like an ‘N-word?’” Lara also reported
that McCall threw down the squeegee. Lara told Mayer that he
was bothered by the incident, that he had never treated McCall

70 McCall did not remember talking to an employee along the way. I
credit Blanquel, who demonstrated good recall as to this incident, but
there is no substantive significance to whether or not McCall paused to
speak to an employee.
71 It’s not clear from the record if McCall here, used the actual slur
“nigger,” or used the euphemism, “the N-word.” I had asked the wit-
nesses not to burden the record by continuously using the slur after the
first use, and it’s unclear whether Blanquel, in his testimony, was sim-
ply following my instructions or accurately quoting McCall.
72 The record does not contain the words Blanquel used to describe
the incident.
73 The record does not detail the questions Mayer asked.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
with anything but respect, and that he couldn’t figure out why
she would say something like that to him.
After speaking to Lara, Mayer asked Blanquel and Bequest
to bring McCall to his office. When they arrived at his office,
Mayer told McCall what he had been told about the incident
and what she was reported to have said. Mayer asked her if
she, in fact, had said the words she was accused of. McCall
admitted she said the words. Mayer told her it was inappropri-
ate. McCall responded that she didn’t mean it like it sounded.
McCall said she was being taken to a different area several
times and felt like she was being treated like an [“N-word”].
Mayer told her that the words were inappropriate regardless of
the intention, that when she utters a remark like that, the people
she says the words to don’t know her intentions, that it was a
violation of the Respondent’s rules, that there was never a cir-
cumstance that it would be tolerated, and that type of thing
could be a dischargeable offense. Mayer told McCall that she
was receiving a disciplinary warning, and McCall then apolo-
gized to everybody present. Mayer told her that if it ever hap-
pened again she would lose her employment. Finally, Mayer
told her that her objection to going to another job was unac-
ceptable and bordered on insubordination.74
While admitting that she used the “N-word” as described
above, McCall testified that Blanquel had also used the “N-
word” on at least two prior occasions in conversations with
McCall at work. McCall testified that a few years earlier,
Blanquel used the “N-word” in referring to a supervisor that
Respondent was about to hire. McCall also testified that Blan-
quel used the “N-word” in early July, in the presence of lead
packaging machine operator Mike Stanford, and that she was
“pretty sure Greg was there.” The reference to “Greg” is ap-
parently a reference to Gregory Glyzewski, who was, at the
time, employed by the Respondent as a BPO (baking process
operator). According to McCall, “he kept calling her the “N-
word” over and over.” McCall testified that Blanquel’s alleged
use of the slur was directed at Jackson, and that the conversa-
tion occurred by the picnic tables outside the plant. Stanford
testified that he never heard Blanquel use the “N- word.”
Blanquel testified that he never used the “N-word” at work, that
he never used the “N- word” in reference to Jackson, that he
never heard anybody else use the “N-word” in reference to
Jackson, and that the only person he ever heard use the “N-
word” at work was McCall.
Gregory Glyzewski, who voluntarily left the Respondent’s
employ in August, and who was employed as a BPO and was a
member of the Union’s organizing committee during the organ-
izational campaign, testified he was present during a conversa-
tion at the picnic table outside the plant with himself, Blanquel,
and Stanford in July 2005. Glyzewski testified only that the
three of them were present, and did not mention McCall.
Glyzewski testified that during the conversation, Stanford said,
“um, something to the effect of, uh—that Marlenea is nothing
but a big, fat ‘N-word.’” Glyzewski further testified that after

74 Most of my finding as to this discussion is based on the credited
testimony of Mayer. McCall also testified as to this conversation, but
her testimony was not as detailed as Mayer’s. Their testimony was not
inconsistent on any significant detail of the conversation.
Stanford spoke, Blanquel “kinda chuckled.” Stanford, who
denied that he ever heard Blanquel use the “N-word,” also de-
nied that he ever used the word during his employment with the
Respondent, denied that he ever used the word in Blanquel’s
presence, and denied that he ever used the word to describe
Jackson. There is no evidence that Blanquel or Stanford was
ever disciplined in connection with using the “N-word.”
Based on the above discussion, my assessments of the rele-
vant witnesses, and the weight of the evidence, I cannot con-
clude that either Blanquel used the “N-word” at work or that
Stanford used the word in Blanquel’s presence. All of the wit-
nesses, to some extent, had a vested interest in their testimony,
as Jackson and Stanford are current employees, Glyzewski was
a former employee but an active supporter of the Union during
his tenure, and McCall stands to have discipline removed from
her record should the General Counsel be successful in this
litigation.
Significantly,75 Glyzewski’s testimony, similar in some re-
spects, differed from McCall’s in two key aspects; that is, that
McCall places herself at the Blanquel/Stanford conversation,
while Glyzewski testified that only he, Blanquel, and Stanford
were present, and Glyzewski testified that Stanford used the
slur in Blanquel’s presence while McCall testified that Blan-
quel used the slur in Stanford’s presence. While there could
have been two different conversations, certain details of their
testimony, including the approximate date of the conversation
and its location, make it appear that they were testifying as to
the same conversation.76 Thus, McCall testified that the con-
versation she heard occurred 2 or 3 weeks before her July 27
discipline. Glyzewski testified that the conversation he heard
occurred in July. Both testified that the conversation they heard
occurred at the picnic tables outside the plant. Both testified
that Stanford was present. Both testified that Jackson was the
subject of the slur.
Further, McCall admitted that in the investigatory affidavit
she gave to the Board during the investigation she never men-
tioned that she had heard Blanquel use the “N-word” in the past
at work, and at no step of the disciplinary procedure did McCall
defend herself by alleging that Blanquel had used the same slur.
Based on the similarities, I find that McCall and Glyzewski
were testifying to the same conversation. Based on the signifi-
cant inconsistencies in their testimony and McCall’s failure to
mention in her affidavit that she had heard Blanquel use the slur
at work, and because Blanquel’s demeanor was relatively more
impressive, I find his testimony here more reliable than that of
McCall or Glyzewski. McCall and Glyzewski were not unim-
pressive witnesses in demeanor, but the key inconsistencies in
their testimony lends significant doubt to their credibility.

75 Significant, because if McCall wasn’t present at this conversation,
then her testimony as to this conversation is not credible, and resultant
doubt is thrown on the rest of her testimony. McCall testified that she
was “pretty sure Greg was there.” But the issue as to credibility is not
whether Gregory Glyzewski was present, but whether McCall was
present.
76 While McCall, in answering the General Counsel’s questions,
does not use Blanquel’s name in testifying as to who spoke the offend-
ing words, the context and sense of her testimony makes it clear she is
speaking of Blanquel.
BAPTISTA’S BAKERY, INC. 569
Analysis and Conclusions
A. Preelection Alleged 8(a)(1) Actions: Solicitation
of Grievances and/or Promises of Benefits
Counsels for the General Counsel argue that Gardetto, in her
speech of February 18, solicited grievances and promised
benefits in violation of Section 8(a)(1). The General Counsel
also maintains that further solicitation of grievances and/or
promises of benefits occurred as follows: the captive audience
speech held by Olson and Blanquel, Olson and Blanquel’s con-
versation with Mankin and Cassel, the conversation between
Gardetto and Mang, the conversation between Blanquel and
Carvalho, and the conversation between Mang, Sparks, and
Blanquel.77
The Board’s test for interference, restraint, and coercion un-
der Section 8(a)(1) is an objective one, and depends on
“whether the employer engaged in conduct which, it may rea-
sonably be said, tends to interfere with the free exercise of em-
ployee rights under the Act.” American Freightways Co., 124
NLRB 146, 147 (1959). The Board has long held that, in the
absence of a previous practice of doing so, the solicitation of
grievances by an employer during an organizational campaign
violates the Act when the employer promises to remedy those
grievances. See, e.g., Uarco, Inc., 216 NLRB 1, 2 (1974). The
solicitation of grievances alone is not unlawful, but it raises an
inference that the employer is promising to remedy the griev-
ances. Blue Grass Industries, 287 NLRB 274 fn. 4 (1987).
This inference is particularly compelling when, during a un-
ion organizational campaign, an employer that has not previ-
ously had a practice of soliciting employee grievances institutes
such a practice. Amptech, Inc., 342 NLRB 1131, 1136 (2004).
While an employer who has had a past practice and policy of
soliciting grievances may continue to do so during an organiza-
tional campaign, an employer cannot rely on past practice if it
“significantly alters its past manner and methods of solicitation
during the campaign.” House of Raeford Farms, 308 NLRB
568, 569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert.
denied 511 U.S. 1030 (1994).
B. Gardetto Speech
The General Counsel, in paragraph 8(a) of the complaint, re-
ferring to her captive audience speech, alleged that Gardetto
“solicited grievances and made promises of benefits.”
Gardetto’s speech sent a strong, personal, and very emotional
message to employees of her feelings against the Union. In
their brief, counsels for the General Counsel concede that “not
every word that Ms. Gardetto said was unlawful.” The only

77 In their brief, counsels for the General Counsel argue that Lepak’s
statement in his captive audience speech, to the effect that Respondent
had made mistakes and wanted to do better, was a solicitation of griev-
ances and promise of benefits, but acknowledge that there was no such
allegation in the amended consolidated complaint introduced at the
hearing. Counsel’s for the General Counsel take the same position as
to the nonalleged statement of Mayer to Carvalho concerning his vaca-
tion days. Inasmuch as counsels for the General Counsel did not move
to amend the complaint to add these allegations, I will make no conclu-
sions of law as to either conversation, but did include them in my fac-
tual findings.
two passages in her speech that arguably solicited grievances
are as follows: (1) “that she was human and had made mistakes
but wanted employees to come to her so she could fix them,
that she was not too proud to hear what they needed and to
make the changes that they needed, that she was going to be
more available in the plant and more conscious and aware of
what was going on, and would actively participate in ensuring
that the changes needed would happen”; and (2) that her door
was always open if employees had any questions or concerns.
In her speech, Gardetto made generalized comments about
things improving, but also made specific promises that commu-
nication with employees would improve, and “that she was
committed to having Tom Mayer focus on attending to employ-
ees’ needs again, and committed to creating opportunities for
collaboration and communication on goals, and celebrating
employee successes.” In his brief, the Respondent’s counsel
concedes Gardetto’s comments about improving communica-
tions and her open door invitation to employees for questions
and concerns, but argues that Gardetto did not link her efforts
to improve communication to the outcome of the organizing
campaign and that “she did not say that the results of the elec-
tion would affect her efforts to improve communication with
employees.”
Based on the above, and my finding of facts, I conclude that
in the context of an emotional personal speech about February
18 from the Respondent’s highest official, geared to defeating
the Union’s organizational attempt, and without evidence that
Gardetto’s invitation and promises were merely a continuation
of past policy, her linking of an invitation to employees to talk
to her about any questions and concerns with promises to im-
prove communications, to have Mayer focus on attending to
employees’ needs, and to celebrate employee successes,78 con-
stituted a solicitation of grievances and either a direct or im-
plied promise of remedy, in violation of Section 8(a)(1). See,
for example, Center Service System Division, 345 NLRB 729,
729–730 (2005). I reject Respondent’s characterization in its
brief that Gardetto’s “commitment to improve communication
was nothing more than a commitment to return to the open
communication the Company had enjoyed for most of its exis-
tence.” In reality, the brief’s characterization is a concession
that Gardetto’s comment was a promise to change from the
then current policy, back to the policy that had allegedly existed
at an earlier time. Further, while there is evidence that on occa-
sion, lower level supervisors may have asked employees for
suggestions in the past, this is a far different scenario than a
speech from the Respondent’s highest official.
Further, I disagree with the argument in the Respondent’s
brief that the Board’s decision in Curwood, Inc., 339 NLRB
1137, 1139–1140 (2003), stands for the proposition that “open
invitations for employees to present questions or concern is not
an unlawful solicitation of grievances.” In Curwood, the Board
weighed the meaning of the following communiqué (in perti-
nent part) from the employer to its employees: “If you have
questions, I highly encourage you to write them down and re-

78 As to celebrating employee successes, see also my finding that the
Respondent made good on this promise by its institution of an em-
ployee-of-the-year award with concomitant cash award.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
turn them in the envelope provided.” As to the passage, the
Board held, “The context of the letter as a whole reasonably
suggests that the Respondent was soliciting questions about the
mechanics of the election process and about its own views con-
cerning unionization.” Thus, rather a setting forth an all-
encompassing general rule, the Board simply ruled that in the
context of the entire letter the quoted passage did not imply a
promise to resolve their grievances. I concluded here to the
opposite; that in the context of the entire speech, Gardetto’s
invitation conveyed an implication that grievances raised would
be resolved.
C. Gardetto Conversation with Mang
The General Counsel alleged in paragraph 8(b) of the com-
plaint that in March, Gardetto promised an employee “things
would get better around the facility.” As found, about 2 weeks
before the election, Gardetto initiated a conversation with Mang
in which she told Mang that “things will be getting better” at
the facility and that Respondent “maybe” was going to go back
to offering anniversary awards to employees. Respondent, in
its brief, argues that “. . . Gardetto did not elaborate on what
would get better, nor did she make any promises.” I conclude
that, in fact, Gardetto did elaborate on what would get better by
implying that the Respondent would revert to a policy of pro-
viding employees with anniversary awards.
I agree with the Respondent’s argument in its brief, citing the
Board’s decision in MacDonald Machinery Co., 335 NLRB
319 (2001), that general, nonspecific, comments about an em-
ployer’s desire to make things better, without more, do not
constitute an unlawful promise in violation of Section 8(a)(1).
See also National Micronetics, 277 NLRB 993 (1985), where
the Board found the statements at issue to be “too vague to rise
to the level of illegal promises of benefits,” and noted that
“[t]he statements do not promise that anything in particular will
happen.” Here, however, Gardetto went beyond a general as-
sertion that “things will be getting better” and coupled those
words with a specific reference to reinstituting anniversary
awards. I conclude that such words implied a promise of bene-
fits in violation of Section 8(a)(1). Further, as noted above,
there is no evidence that Gardetto, the Respondent’s highest
official, engaged in such solicitation of employee grievances
prior to the organizational campaign. This is not a continuation
of a past practice as, for example, found by the Board in Ameri-
can Red Cross Missouri-Illinois Blood Services Region, 347
NLRB 347 (2006).
D. Olson and Blanquel Captive Audience Meeting
The General Counsel alleges, in paragraph 10(a) of the com-
plaint, that Olson and Blanquel solicited grievances at a meet-
ing. In their brief, counsels for the General Counsel argue that
the following, which they assert occurred at a captive audience
meeting, constitutes a solicitation of a grievance and a promise
of a benefit: “He [Olson] said that he and Blanquel were striv-
ing very hard with Lepak to change things around there and
make them better.” In my findings of fact, I found that Olson
also told the assembled employees that “the Respondent had
made mistakes but that he, Blanquel, and Lepak were trying to
change things and make them better and treat them fairly like
by giving them enough advance warnings of shift changes.”
Based on my findings of fact, and the record as a whole,
there is no evidence that Olson or Blanquel solicited grievances
at this meeting, and I conclude that they did not. Olson did
advocate against the Union at his captive audience meetings,
and did tell the assembled employees that the Respondent had
made mistakes but that “he, Blanquel, and Lepak were trying to
change things and make them better and treat them fairly like
by giving them enough advance warnings of shift changes.”
But the General Counsel does not allege in the complaint intro-
duced at trial that such constituted an illegal promise of benefit,
and there was no motion to so amend the complaint. I, thus,
decline to find such a promise of benefit, and because such
findings would, in any case, be redundant in view of my other
conclusions herein.
E. Olson and Blanquel Conversation with Mankin
and Cassel
In paragraph 9(d) of the complaint, the General Counsel al-
leges that Blanquel solicited grievances and promised benefits
after a meeting. In paragraph 10(b) of the complaint, the Gen-
eral Counsel alleges that after a meeting, Olson and Blanquel
solicited employee grievances. As found, after a captive audi-
ence meeting at which they advocated against the Union, Olson
and Blanquel spoke with employees Mankin and Cassel. Blan-
quel and Olson told Mankin and Cassel that they “wanted to
make things better,” and asked them if they “had any ideas on
how to improve.” After Olson and Cassel left, Blanquel again
asked Mankin if she had any ideas on how the Respondent
could improve and told Mankin that he would take her and a
companion out to dinner and would pay for it so they could
discuss any ideas she had. The General Counsel alleges in
complaint paragraph 10(b) that these comments by Olson and
Blanquel were illegal solicitation of employee grievances. The
Respondent maintains that Blanquel was doing nothing differ-
ent from what he has done over the course of his employment
as a supervisor, that is, solicit suggestions from employees, and
cites Wal-Mart, Inc., 339 NLRB 1187 (2003), for the proposi-
tion that an employer who has a past policy and practice of
soliciting employees’ grievances may continue such a practice
during an organizational campaign.
I find that Blanquel’s and Olson’s comments to Mankin and
Cassel constituted illegal solicitation of grievances in violation
of Section 8(a)(1). The solicitation of grievances was accom-
panied by statements that the Respondent wanted to make
things better, and followed a captive audience meeting at which
the employees were urged to oppose the Union. Additionally,
Blanquel even offered to pay for dinner for Cassel and a com-
panion as part of the solicitation. Respondent’s argument is
accurate in that Blanquel had previously solicited suggestions
from employees, but those solicitations were clearly of a differ-
ent character, in a different context, and did not involve dinner
invitations. As noted, the Board has ruled that an employer
cannot rely on past practice if it “significantly alters its past
manner and methods of solicitation during the campaign.”
House of Raeford Farms, supra. The solicitations here were
clearly not geared to work processes, were accompanied by
BAPTISTA’S BAKERY, INC. 571
antiunion rhetoric, and included offers to pay for dinner. Under
these circumstances, they were not a continuation of past prac-
tice, and were illegal.
F. Blanquel and Sparks’ Conversation with Mang
The General Counsel alleges in paragraph 9(a)(v) of the
complaint that shortly before March 23 Blanquel “solicited
grievances and thereafter made changes in response to those
grievances.” I found that about 2 or 3 weeks before the March
23 election Mang met for about 10 minutes in a supervisor’s
office with Supervisors Blanquel and Sparks. In the course of a
conversation during which Blanquel and Mang engaged in
antiunion rhetoric, Blanquel asked Mang for suggestions to
“make the company better.” Mang responded with a sugges-
tion that there should be job postings with a signup sheet. Sub-
sequent to this conversation, such a signup sheet was posted on
the bulletin board in the lunchroom and stayed posted for a
week or two. I also found that on previous occasions, prior to
any union activity, Blanquel had solicited ideas from employ-
ees under his supervision, but those solicitations were geared to
production processes. Finally, I found that the Respondent had
posted job openings in the past in 2000, 2002, and sometime in
2004, but not in 2005.
I agree with the Respondent’s argument that, as to Blan-
quel’s solicitation of Mang, there is insufficient evidence in the
record from which I can conclude that Blanquel’s solicitation
was a deviation from past practice. I have found that in the
past, before any union organizational activity, Blanquel solic-
ited suggestions from employees, and put some of those sug-
gestions into effect. As in the Board’s Wal-Mart decision,
supra, the issue here is whether during the campaign the Re-
spondent solicited grievances in a manner that was significantly
altered from its past manner and methods. Here, the only dif-
ference in Blanquel’s solicitation of grievances from Mang,
from what Blanquel did in the past, was to accompany the so-
licitation with antiunion rhetoric, none of which is alleged to
violate the Act. There is no evidence in the record as to
whether the Respondent acted quicker to resolve Mang’s griev-
ance than it had in the past to resolve grievances presented to
Blanquel. I, thus, conclude that Blanquel’s solicitation of
Mang was not a significant change from his practice prior to
any union organizational activity, and did not violate the Act.
G. Other Preelection Alleged 8(a)(1) Violations
1. Blanquel’s conversations with Carvalho and Karboski
The General Counsel alleges in the complaint that the fol-
lowing violations of Section 8(a)(1) were committed by the
Respondent’s supervisor, Blanquel, during the preelection cam-
paign period, and at trial and in their brief counsels for the
General Counsel maintained that the violations occurred during
conversations Supervisor Blanquel had with employee Car-
valho as follows: (1) complaint paragraph 9(a)(i)—shortly be-
fore March 23 told an employee that he would lose his seniority
and vacation because if the Union came in everything would
start from zero; (2) paragraph 9(a)(iii)—shortly before March
23 told an employee that the union organizing campaign was
preventing him from receiving increased pay; (3) paragraph
9(a)(iv)—shortly before March 23 told an employee that he
would receive a benefit by having his vacation restored; and (4)
paragraph 9(c)—on or about mid-February made threats of
plant closure. Counsels for the General Counsel further main-
tain in their brief that Respondent violated Section 8(a)(1) as
alleged in complaint paragraph 9(b) by Blanquel’s comments in
a conversation with Karboski.
I found that in mid-February Blanquel told Carvalho that he
would lose his vacation and seniority because if the Union
came in everything would start from zero, and the owner would
close down the plant. I further found that about a week to 10
days after the mid-February conversation, Carvalho asked
Blanquel why he wasn’t receiving lead pay, and that Blanquel
responded that “we were in the process of union campaign.” I
also found that near the end of February Carvalho complained
to Blanquel that he had received remuneration for 2 days of pay
in lieu of vacation when he had not requested such, that Blan-
quel had responded that it was supposed to be that way, “new
administration, new management,” that in mid-March Blanquel
told Carvalho that Carvalho was right that he didn’t have to
take the vacation days, and that Blanquel had Carvalho sign a
form to pay the vacation remuneration back to the Respondent
and restore his vacation days.
I further found that about 3 weeks before the election, Blan-
quel told Karboski that he wanted to give her his take on the
Union; that he didn’t believe in unions, and that it’s not always
the way they say it’s going to be. Blanquel said that in the
bargaining, the parties could start from zero and employees
could lose their vacation.
As to “start from zero,” it is well settled that employer
statements to employees during an organizing campaign that
bargaining will start from “zero” or from “scratch” are “dan-
gerous phrases” which carry within them “the seed of a threat
that the employer will become punitively intransigent in the
event the union wins the election.” Coach & Equipment Sales
Corp., 228 NLRB 440 (1977). “Although such statements are
not per se unlawful, the Board will examine them, in context, to
determine whether they ‘effectively threaten employees with
the loss of existing benefits and leave them with the impression
that what they may ultimately receive depends in large measure
upon what the union can induce the employer to restore,’ or-
conversely-whether they indicate that any ‘reduction in wages
or benefits will occur only as a result of the normal give and
take of collective bargaining.’” Federated Logistics & Opera-
tions, 340 NLRB 255 (2003), quoting Plastronics, Inc., 233
NLRB 155, 156 (1977). Blanquel’s further threat during the
same conversation that the owner would close the plant, adds
further context to the “start from zero” comment, and also vio-
lates Section 8(a)(1).
I conclude that Respondent violated Section 8(a)(1), as al-
leged in complaint paragraph 9(a)(i), when Blanquel told Car-
valho in mid-February79 that he would lose his vacation and
seniority if the Union came in because everything would start
from zero. Blanquel’s comment is not simply an explanation as
to how collective bargaining works, but a bald threat to Car-

79 Carvalho credibly testified that this conversation occurred in mid-
February rather than the March 23 date pleaded in the complaint. The
issue was fully litigated and I perceive no prejudice to the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
valho. I further conclude that Blanquel’s comment, in the same
conversation that the owner would close down the plant to be a
threat in violation of Section 8(a)(1). Evergreen America
Corp., 348 NLRB 178 (2006). I find no separate violation as
alleged in complaint paragraph 9(b).80
As to Blanquel’s response to Carvalho’s question about his
pay raise, “it is well settled that, in deciding whether to grant
benefits while a representation election is pending, an employer
should act as if no union were in the picture.” “Thus, if an
employer withholds wage increases or accrued benefits because
of union activities, and so advises employees, it violates the
Act. However, where employees are told expected benefits are
to be deferred pending the outcome of an election in order to
avoid the appearance of election interference, the Board will
not find a violation of the Act.” Centre Engineering, Inc., 253
NLRB 419, 421 (1980) (citations omitted). Here, Blanquel’s
response to Carvalho’s question about his pay raise was not
made in the context of an explanation that the pay raise was
being withheld to avoid influencing the outcome of the elec-
tion. As a result, Carvalho would have been left with the im-
pression that but for the Union’s campaign he would have re-
ceived a pay raise. I, thus, conclude that the Respondent vio-
lated Section 8(a)(1) when Blanquel told Carvalho that, in ef-
fect, Carvalho was not receiving his pay raise because of the
union campaign.
As to Blanquel’s comments and Respondent’s actions sur-
rounding the remuneration to Carvalho in lieu of vacation days,
even in the context of the other unfair labor practices found
herein, I cannot conclude that such violated Section 8(a)(1) or
was caused by anything more than an apparent mistake and
then correction of the mistake, made by Respondent in respect
to its vacation pay policy. Blanquel admitted the mistake in the
application of the policy to Carvalho, and then corrected the
mistake by allowing Carvalho to repay the Respondent, and
regain his vacation days. In the absence of contrary evidence,
the Respondent’s explanation makes sense, and I will not find
its actions motivated by the organizational campaign based
only on the animus and other unfair labor practices found
herein.
2. Lepak’s captive audience meeting, and conversation
with Mang
The General Counsel’s complaint alleges as violations of
Section 8(a)(1) the following actions of then Vice President of
Manufacturing Brett Lepak: (1) in paragraph 11(a) that Lepak,
during a captive audience meeting in February, “said that the
Respondent wanted employees with good attitudes and that
they were trying to move forward”; (2) in paragraph 11(c) that
“shortly before March 23,” Lepak stated in a captive audience
meeting that if “the Union won the election, the Employer
could not grow”; and (3) in paragraph 11(b) that in about mid-
February Lepak “told an employee that the Employer was look-
ing for workers that don’t cause trouble or open their mouths

80 Complaint par. 9(a)(i) mentioned “seniority and vacation” being
threatened. Complaint par. 9(b) mentions only vacation being threat-
ened. I find no violation as alleged in complaint par. 9(a)(ii), a similar
allegation, as there is no evidence to support said allegation.
that much about stuff.” In their brief, counsels for the General
Counsel point to record evidence concerning a mid-February
conversation between Lepak and employee Mang in support of
the latter allegation.
I found that during the course of the organizational cam-
paign, Lepak gave a speech or speeches as part of the Respon-
dent’s campaign against the Union, and that Lepak told the
assembled employees that the Company was doing well and not
headed for more layoffs, that he didn’t care whether the em-
ployees had a union or not but that the Company couldn’t grow
with a union, and that the Respondent wanted to move ahead
with people with good attitudes. I also found that Lepak told
the assembled employees that they shouldn’t forget to vote and
that whether an employee voted “yes” or “no,” it wouldn’t be
held against them.
Counsels for the General Counsel argue in their brief that
Lepak’s comment as to the Respondent not being able to grow
with a union violated the Act, and that his coupling of his com-
ment about no more layoffs with his comment of moving ahead
with people with good attitudes would cause employees to fear
that to achieve no layoffs they would have to demonstrate good
attitudes, meaning not supporting a union. Respondent’s coun-
sel, in his brief, concedes that Lepak told employees that “the
Company wanted to move forward with workers who had a
good attitude” but maintains, as to these alleged violations, that
in the context of everything Lepak said to the assembled em-
ployees, including that he didn’t care whether or not the em-
ployees had a union, and that the Respondent would not hold
anything against an employee no matter how he/she voted,
Lepak’s words were not coercive.
I conclude that Lepak violated Section 8(a)(1), as alleged,
when he told the assembled employees that the Company could
not grow with a union and that the Company wanted to move
ahead with people with good attitudes. The Board has viewed
the usage of certain words in respect to union or protected con-
certed activity to be code words for that activity. See Phillips
Petroleum Co., 339 NLRB 916 (2003). “Attitude” is such a
word. See Bronco Wine Co., 256 NLRB 53, 54 (1981). Here,
Lepak’s reference to moving ahead with people with “good
attitudes” coupled with his references to the Company not be-
ing able to grow with a union conveys a coercive message to
the assembled employees that good attitude meant not favoring
a union and that such attitude was the key to avoiding future
layoffs. Lepak mentioned that the Respondent was not headed
to more layoffs, but the assembled employees knew full well
that the Respondent a month or so earlier had permanently laid
off employees. Urging employees to vote, telling them that
how an employee voted would not be held against him/her, and
that Lepak did not care whether the employees had a union or
not, did not and could not ameliorate the veiled and unveiled
threats contained in the rest of his message.
I also find that Respondent violated Section 8(a)(1) when
Lepak told employee Mang in mid-February that “[w]e have a
good work force, they’re good workers and you don’t complain
much.” Lepak’s comment, which equates being a good worker
with not complaining, is coercive in that it occurred in the con-
text of an organizing drive and a vigorous Respondent counter-
BAPTISTA’S BAKERY, INC. 573
campaign, and followed on the heels of the Respondent’s per-
manent layoff of other plant employees.
3. Mayer’s conversation with Karboski
The General Counsel alleges in the complaint that the fol-
lowing actions of Vice President of Human Resources and Op-
erating Services Thomas Mayer on March 22 violated Section
8(a)(1): (1) paragraph 15(a)—“expressed his opinion whom the
Union’s observer should be”; (2) paragraph 15(b)—“disparaged
the Union by comparing it to a crack addict,” and (3) paragraph
15(c)—“by the conduct described above in paragraph 15(a),
impliedly engaging in surveillance.” In their brief, counsels for
the General Counsel rely on Mayer’s conversation with em-
ployee Karboski to support these complaint allegations.
Karboski was the Union’s observer at the election. I found
that the day before the election, Mayer spoke to Karboski in the
plant’s mixing room. Mayer said he had heard that Karboski
was going to be the Union’s observer at the election. Karboski
acknowledged she was the observer. Mayer said he was sur-
prised the observer wasn’t Brzezinski. Karboski responded that
she had picked her side early on and she was going to stick with
it. Mayer responded, “I hope you know what you’re doing.”
Karboski said that if it did not work out the employees could
vote the Union out in a year. Mayer responded, “That’s what
crack addicts think too, that they can get off of it.”
Counsels for the General Counsel, in their brief, argue that
Mayer’s comment about crack addicts was disparaging of the
Union in violation of Section 8(a)(1), that Mayer’s comment
about Brzezinski implied surveillance of union activity, and
that Mayer’s comment that he “hoped that Karboski knew what
she was doing” (not alleged as a violation in the complaint) was
not “harmless.” The Respondent’s counsel, in his brief, main-
tains that none of Mayer’s comments violated the Act, that
Mayer did not use the word “union” nor specifically mention
the Union in his “crack addict” comment, and that Mayer’s
statement of his mistaken belief that Brzezinski would be the
Union’s observer, instead of evidencing surveillance, demon-
strated the opposite.
Section 8(c) of the Act “implements the First Amendment”
such that “an employer’s free speech right to communicate his
views to his employee is firmly established and cannot be in-
fringed by a union or the Board.” NLRB v. Gissel Packing Co.,
395 U.S. 575, 617 (1969). It gives employers the right to ex-
press their opinions about union matters, provided such expres-
sions do not contain any “threat of reprisal or force or promise
of benefit. Progressive Electric, Inc., 344 NLRB 426, 482
(2005). “Thus, an employer may criticize, disparage, or deni-
grate 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,
36 (2006). “Denigration of the union is insufficient to support
a finding that the Respondent has violated the Act unless it is
such as to threaten reprisals or promise benefits.” Children’s
Center, supra, quoting Poly-America, Inc., 328 NLRB 667, 669
(1999).
Here, Mayer’s “crack addict” comment was clearly not di-
rected at the Union, but instead at Karboski’s belief that em-
ployees could vote the Union out after a year if they were not
happy. Inasmuch as it was not directed at the Union, it was not
disparaging of the Union. Even if it were directed at the Union,
Mayer was within his rights to express his nonthreatening, non-
coercive, albeit strong, opinion.81
The Board’s test for determining whether an employer has
created an impression of surveillance is whether the employee
would reasonable assume from the statement in question that
his union activities had been placed under surveillance. United
Charter Service, 306 NLRB 150 (1992). “The Board does not
require employees to attempt to keep their activities secret be-
fore an employer can be found to have created an unlawful
impression of surveillance . . . . Further, the Board does not
require that an employer’s words on their face reveal that the
employer acquired its knowledge of the employee’s activities
by unlawful means.” Id. at 151. “The idea behind finding ‘an
impression of surveillance’ as a violation of Section 8(a)(1) of
the Act is that employees should be free to participate in union
organizing campaigns without the fear that members of man-
agement are peering over their shoulders, taking note of who is
involved in union activities, and in what particular ways.”
Flexsteel Industries, 311 NLRB 257 (1993).
I do not find that Mayer’s comment as to who was the Un-
ion’s observer implied surveillance of union activity. As ar-
gued by the Respondent’s counsel in his brief, it was well-
known that Brzezinski was a strong supporter of the Union.
Brzezinski was designated as a member of the Union’s organiz-
ing committee in the February 7 union letter to the Respondent.
During Gardetto’s captive audience speech, Brzezinski made
comments to her supportive of the Union. Under these circum-
stances, with Brzezinski’s support of the Union is no secret, it
hardly suggests surveillance for the Respondent to be aware of
such support or to suggest to Karboski that Mayer thought
Brzezinski would be the Union’s observer. Viewed objec-
tively, Mayer’s “observer” comment to Karboski would not
reasonably have induced in her a fear that members of man-
agement were peering over her shoulders. At most, Mayer’s
comment was a sarcastic expression of his opinion. I, thus,
conclude that Mayer’s comments to Karboski did not violate
the Act as alleged.
4. Howe’s captive audience speech
The General Counsel alleges in complaint paragraph 12 that
about the second or third week in March, Tom Howe, Respon-
dent’s president, told employees during a meeting that “the
Company was finally making money and asked why they
would want to ruin it by bringing in a third party.” Counsels
for the General Counsel assert in their brief that Howe’s com-
ment was a “statement that selection of the Union was having
adverse consequences.” Respondent’s counsel, in his brief,
characterizes this complaint allegation as implicitly alleging a
threat of plant closure, and argues either that Howe did not say
what he was accused of and/or that what he did say was a law-

81 While a strong antiunion atmosphere prevailed under the circum-
stances of this case, including other violations of the Act (see, e.g.,
Ryder Transportation Services, 341 NLRB 761 (2004)), I cannot con-
clude that Mayer’s crack addict comment was threatening.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
ful expression of the Respondent’s opinion as to the Union,
citing Mt. Ida Footwear Co., 217 NLRB 1011 (1975).
I found that Howe told the assembled employees, in perti-
nent part, that the Respondent had made a substantial capital
investment, that Respondent’s sales had grown from $5 to $9 to
$10 million a year, that the Respondent was committed to find-
ing new products and customers to grow the business, that the
Respondent was committed to make the business work by bet-
ter training and communication with its employees, that he was
asking the employees to support the direction the Respondent
was going in, that union representation could become a hurdle
by the restrictive rules of a union contract, and that bringing in
a third party would wreck82 the progress.
Howe’s wrecking or ruining the Respondent’s progress
comment, is a clearly expressed prediction as to what would
happen if the Union were to be successful. The standard for
determining whether an employer’s prediction is an impermis-
sible threat was set forth in NLRB v. Gissel Packing Co., supra
at 618. The Board must focus on, “what did the speaker intend
and the listener understand.” Id. at 619. Any evaluation of the
speaker’s comments, therefore, “must take into account the
economic dependence of the employees on their employers, and
the necessary tendency of the former, because of that relation-
ship, to pick up intended implications of the latter that might be
more readily dismissed to the disinterested ear.” Id. at 617. In
further explication, the Court in Gissel held:
Thus, 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.” He may even make a prediction as to the precise ef-
fects 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 probable consequences beyond his
control or to convey a management decision already arrived at
to close the plant in case of unionization. If there is any im-
plication that an employer may or may not take action solely
on his own initiative for reasons unrelated to economic neces-
sities and known only to him, the statement is no longer a rea-
sonable prediction based on available facts, but a threat of re-
taliation based on misrepresentation and coercion, and as such
is without the protection of the First Amendment. [Id. at 618.
(Citations omitted).]
Howe’s words here do not constitute a carefully based pre-
diction based on objective fact. In context, they are words cal-
culated to make the assembled, listening employees fear that
the Respondent’s investment, efforts to find new business and
products, and commitment to make the business work, would
be torpedoed by an employee decision to choose union repre-
sentation. Decisions to invest, try new products, and seek new
business are within the control of the Respondent and are not
demonstrably probable consequences beyond the Respondent’s
control. Howe’s prediction that choosing a third party (e.g.,
union) would wreck or ruin the Respondent’s progress is a

82 Or “ruin.”
coercive threat unsupported by any objective fact cited by
Howe. I, thus, find that the Respondent violated Section
8(a)(1) by Howe’s words to the assembled employees.
H. Disclosure of Confidential Employee Information
from the Respondent’s Files
The General Counsel, in complaint paragraph 13, alleges that
shortly before March 23, various supervisors, in captive audi-
ence meetings, offered to disclose confidential information to
employees about an employee who had been permanently laid
off. In paragraph 14(a), the General Counsel alleges that some-
time in February, at a captive audience meeting, Supervisor
Blanquel disclosed confidential information to employees about
an employee who had been permanently laid off. In complaint
paragraph 14(b), it is alleged that shortly before March 23, at a
captive audience meeting, Vice President Mayer disclosed con-
fidential information about an employee who had been perma-
nently laid off. At trial, the only evidence introduced by the
General Counsel on this issue had to do with the Respondent
showing or offering to show employees, during the election
campaign, a disciplinary writeup from the file of laid-off em-
ployee Dennis Sobiech.
In their brief, counsels for the General Counsel rely on the
late February conversation between Blanquel and Carvalho as
evidence in support of complaint paragraph 14(a) although they
concede that the evidence demonstrated that Blanquel’s com-
ments were made in a one-to-one conversation rather than, as
alleged, at a captive audience meeting. Counsels for the Gen-
eral Counsel compare Respondent’s actions in respect to the
disclosure of the Sobiech disciplinary writeup to a campaign
letter sent by the Respondent to its employees, apparently in
respect to the Excelsior list requirement, in which Respondent
said, “Baptista’s has always respected the privacy of our em-
ployee’s personal information, and we apologize that in this
instance we are required to release your personal information to
the NLRB for the Teamsters without your permission.” Fi-
nally, counsels for the General Counsel, in their brief, argue
that, “[b]y Respondent’s actions and its earlier letter, employ-
ees would perceive that a union organizing campaign and sub-
sequent union success could lead to the disclosure of confiden-
tial information by Respondent.” Counsels for the General
Counsel cited no case law in support of this “chilling” argu-
ment.
Respondent, in its counsel’s brief, concedes that it engaged
in some disclosure to employees during the campaign, vis-à-vis
Sobiech’s personnel file, but that the disclosures are protected
by Section 8(c) of the Act and Wisconsin State law. “Not only
is Baptista’s limited disclosure protected by Section 8(c) of the
Act, but it is protected by Wisconsin law as well.” The Re-
spondent’s brief characterizes the evidence as to the Sobiech
disclosure as “largely undisputed,” and concedes the following:
that Supervisor Olson told employees at a captive audience
meeting that he had a copy of Sobiech’s writeup with him, that
Blanquel “offered to show employees the disciplinary writeup
in which Mr. Sobiech had been encouraged to consider another
position,” and that Blanquel offered to show employee Leslie
Fintak a copy of Sobiech’s disciplinary writeup.
BAPTISTA’S BAKERY, INC. 575
The Respondent, in its brief, argues that a number of em-
ployees had raised questions during the campaign as to the
fairness of the Respondent having permanently laid off Sobiech
without having offered Sobiech a different position, and that
the Respondent was just trying to alleviate those concerns. As
these questions were raised, Olson asked Mayer why Sobiech
had not been offered a different position. Mayer told Olson
that Sobiech had been offered the possibility of moving to a
different position at one time, and that this was documented in
a writeup in Sobiech’s personnel file. At Olson’s request,
Mayer provided him with a copy, which apparently is the copy
Olson and Blanquel offered to show employees.
The version of the facts as to the Sobiech disclosure issue
contained in Respondent’s brief is largely consistent with my
findings. I found that during an Olson captive audience meet-
ing one or more employees brought up the Sobiech subject and
asked why he had not been offered another position prior to his
layoff, that Olson inquired of Mayer as to Sobiech, who gave
Olson a copy of the Sobiech writeup which mentioned the pos-
sibility of another job, and that both Olson and Blanquel of-
fered to show this document to employees. I also found that
towards the end of February Blanquel told employee Carvalho
that he wanted to show Carvalho the Sobiech writeup, and he
showed it to him. Finally, I found that a week or two before the
election, in Mayer’s office, Mayer told employee Mang that
Mayer knew the employees were kind of upset that the Re-
spondent had let Sobiech go, but that he had been making mis-
takes and Mayer was going to show Mang Sobiech’s personnel
file showing that Sobiech had made mistakes in the past.
Mayer then showed Mang a file that contained something about
what a supervisor had written about Sobiech. I also found that
during the course of the election campaign some of the Re-
spondent’s employees had asked supervisors why the Respon-
dent had not offered Sobiech another job before laying him off.
Under these circumstances, I do not conclude that the Re-
spondent’s offer to show or actually showing the Sobiech
writeup containing language as to the possibility of another
position to other employees during the course of the organiza-
tional campaign chilled union activity or violated Section
8(a)(1). The information disclosed was limited to a single
writeup from Sobiech’s personnel file and it was in legitimate
response to employee questions to supervisors which arose
during the course of the campaign. Based on this record, I can-
not conclude that an employee would reasonably fear, based on
Respondent’s actions vis-à-vis the Sobiech writeup, that his/her
confidential information would be released by the Respondent
if he/she engaged in union activity, or if the union was chosen
to represent them. Accordingly, I conclude that the Respondent
did not violate the Act as alleged in complaint paragraphs 13
and 14(a) and (b).
I. Posting of No-Solicitation Rule
The General Counsel alleges in paragraph 7(c) of the com-
plaint that the Respondent violated Section 8(a)(1) by restating
and promulgating an addition to its no-solicitation, no-
distribution rule, in response to the union organizing drive.
Counsels for the General Counsel contend, in their brief, that
while the rule itself is “facially valid” the Respondent did not
just post the then-current rule but added language as to discipli-
nary consequences for violation of the rule. The Respondent
maintains, in its counsel’s brief, that the outstanding rule is
facially valid, that the language as to discipline in the newly
posted rule is merely an “abbreviated summary of the preexist-
ing disciplinary policy in Baptista’s handbook,” and, that in the
absence of evidence that the rule was discriminatorily enforced,
it was entitled to publish the rule. The Respondent asserts in its
counsel’s brief that “[w]hen a company published a valid, pre-
existing solicitation/distribution policy, and there has been no
disparate enforcement of that policy, there has been no viola-
tion of Section 8(a)(1),” but cites no case law in support.
There is no allegation here that the rule as posted or as in the
handbook is facially invalid. Unlike some cases, the Respon-
dent does not assert that the posting of the existing, but largely
dormant, rule was undertaken to preserve production and order
and there is no evidence of such. Instead, as found, the evi-
dence demonstrated that the rule was posted in the lunchroom
solely in response to the union organizing campaign.
While the Respondent’s argument that the posted rule does
not represent a change from the existing handbook rule is ini-
tially attractive and is accurate as far as it goes, it does not set
forth the whole story. As found, the posted rule, unlike the
handbook rule, includes explicit language as to violators being
subject to discipline, up to and including discharge. Respon-
dent’s counsel refers to such language as “an abbreviated sum-
mary” of the existing handbook language as to discipline. But
the handbook references discipline as progressive (acknowledg-
ing that “there may also be instances where disciplinary action
will not be progressive, depending on the severity and circum-
stances of the situation”). The posted “abbreviated summary”
makes no reference to progressive discipline. The Respondent,
of course, could have included in the posting, language refer-
encing readers to the current disciplinary policy included in the
handbook, but chose to use the language it did, which made no
reference to progressive discipline or to the current handbook
policy. I have also found that Respondent did not enforce the
no-solicitation, no-distribution policy either before or after the
posting in the lunchroom.
Inasmuch as the facial validity of the rule is not challenged
here, the only issue is whether the Respondent’s posting of the
rule in the lunchroom, with the additional reference to disci-
pline, during the course of the Union’s campaign violated the
Act. If the posted rule was just an amplification or clarification
of the existing handbook rule, its posting may not have violated
the Act. See Adams Super Markets Corp., 274 NLRB 1334,
1335 (1985).
Here, however, there is no evidence that the preexisting rule
was ever enforced and much evidence that it was not enforced
at all. Further, the posted rule emphasized the possibility of
discharge and other discipline for violation, whereas the hand-
book rule is directly accompanied by no mention of discipline
or discharge, and the handbook sets forth a policy of progres-
sive discipline, a possibility not mentioned in the posted ver-
sion. Finally, the Respondent presented no evidence that the
posting was generated by the need to preserve order and pro-
duction, but instead the evidence demonstrated that Respondent
posted the rule solely as a response to union organizing. See,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD576
for example, Harry M. Stevens, Inc., 277 NLRB 276 (1985).
Under all these circumstances, I conclude that the posting in the
lunchroom of a preexisting but unenforced rule, which empha-
sized discipline out of context, served to chill union activity in
violation of Section 8(a)(1), and such chilling was clearly the
purpose of the posting, no evidence to the contrary. See City
Market, Inc., 340 NLRB 1260 (2003), where in the context of a
case involving the timing of the promulgation of a no-
solicitation rule, the Board held,
Where, as here, the rule has lain dormant for a substantial pe-
riod of time, and is resurrected only in the context of a union
campaign, there is a reasonable presumption or a nexus be-
tween those two events. In addition, if the timing can be ex-
plained by matters apart from the campaign, the Respondent,
as the promulgator, is in the best position to adduce evidence
of that explanation. Phrased differently, once it is shown that
the rule was promulgated in the context of a union campaign,
the burden of the explanation lies with the employer.
I, thus, conclude that the Respondent violated Section 8(a)(1)
by its posting of the rule, as alleged in paragraph 7 of the com-
plaint.
J. Postelection Allegations
1. Respondent’s March 23 letter to employees
Complaint paragraph 18 alleges that the Respondent violated
Section 8(a)(1) by soliciting grievances, in the letter to employ-
ees from Gardetto and Howe on March 23, just after the elec-
tion. Counsels for the General Counsel, in their brief, point to
the following sentence contained in the letter as evidence of
solicitation of grievances: “We realize that the greatest success
comes when there is effective, continuous communication shar-
ing of information, and employee participation.” Respondent’s
counsel, in his brief, citing Curwood Inc., supra, maintains that
“[n]owhere in this memo do Ms. Gardetto or Mr. Howe solicit
grievances from employees.”
In agreement with the argument of the Respondent’s counsel,
I find no words in the letter soliciting grievances or even impli-
edly soliciting grievances, and find that the Act was not vio-
lated in this regard. However, the letter language cited by
counsels for the General Counsel may be construed, there are
no words from which I can conclude that grievances are being
solicited, even in the context of the other solicitations I have
found violative herein. Counsels for the General Counsel cite
Seville Flexpack Corp., 288 NLRB 518 (1988), for the proposi-
tion that an employer’s postelection solicitation of grievances
and grant of benefits are unlawful, when “granted for union
reason.”83 Seville, however, is inapposite in that it involved a
postelection grant of a benefit explicitly to thank employees for
voting against the union, a “Freedom Day” holiday. It is not
alleged, and I would not find, that the letter at issue here con-
veys a benefit upon employees. Further, I have found that there

83 “We find it unnecessary to rely on the implication in sec. II,E,4,
par. 3 of the judge’s decision that whether or not an election is pending,
the grant of a benefit explicitly for rejecting a union is unlawful. We
note that the benefit in this case was granted during the period when
objections to the election could still be filed.” supra at fn. 2.
are no words in the Respondent’s letter which solicit griev-
ances. Accordingly, I conclude that the Respondent did not
violate Section 8(a)(1) as alleged in paragraph 18 of the com-
plaint.
2. Employee-of-the-year award
Complaint paragraph 17 alleges that on March 28, the Re-
spondent granted a benefit in violation of Section 8(a)(1), by
presenting an employee-of-the-year award, which included a
$500 gift certificate to Sears. In his brief, the Respondent’s
counsel argues that 2004 was a trying year for the Respondent
in that employees worked long hours, that the recipient of the
award, employee John Rautio, distinguished himself in the
newly created job title of packaging machine operator (PMO)
by his “willingness to learn, his desire and the amount of hours
he was willing to work,” that there was no evidence that the
award was presented to Rautio for any reason other than his job
performance or for discriminatory reasons, and that the Re-
spondent has a history of giving attendance awards to employ-
ees each year. Finally, the Respondent argues that “[a] union
organizing campaign should not prevent employers from rec-
ognizing outstanding performance by individual employees.”
Counsels for the General Counsel, in their brief, simply argue
that giving the award constituted the granting of a benefit.
I found that, in fact, the Respondent, on March 28, 5 days af-
ter the election, awarded an employee-of-the-year prize consist-
ing of a $500 gift certificate and a plaque to employee John
Rautio, that the Respondent had never previously awarded an
employee-of-the-year prize, and that in past years, and in 2005,
it did award bonuses for perfect attendance.
In the instant case, the entire postelection period, with objec-
tions to the election still pending, is a critical period for the
consideration of Respondent’s actions, such period character-
ized by the Board as a “preelection context.” See Leland Stan-
ford Jr. University, 240 NLRB 1138 fn. 1 (1979). The Board,
in Honolulu Sporting Goods Co., 239 NLRB 1277, 1280
(1979), enf. 620 F.2d 310 (1980), cert. denied 449 U.S. 1034
(1980), analyzed the law as to the granting of benefits during
the critical period as follows:
The validity of wage increases or other benefits during the
pendency of representation petitions turns upon whether they
are granted “for the purpose of inducing employees to vote
against the union.” And a lawful purpose is not established
by the fact that the employer who took such action did not ex-
pressly relate the granted wage increases to the organizational
campaign. For as the Supreme Court observed in NLRB. v.
Exchange Parts Company, [375 U.S.] 405, 410 (1964), “the
absence of conditions or threats pertaining to the particular
benefits conferred” is not “of controlling significance.” Un-
der settled Board policy, a grant or promise of benefits during
the critical preelection period will be considered unlawful
unless the employer comes forward with an explanation, other
than the pending election, for the timing of such action [some
citations omitted].
Under the above-discussed circumstances here, I conclude
that the Respondent granted the employee-of-the-year benefit
for the purpose of inducing employees not to support the Un-
BAPTISTA’S BAKERY, INC. 577
ion, and thereby violated Section 8(a)(1). These circumstances
include the Respondent’s aggressive campaign against the Un-
ion, the other unfair labor practices found herein, and the fact
that the Respondent had never before provided such a cash
prize for superlative employee performance. The Respondent
argues that the award was granted after the election. But as
Respondent acknowledged in its letter to employees posted the
date of the election, just after the election, it was aware that the
election was not final, and Board law holds that the preelection
critical period extends to cover the disposition of challenges
and objections. The attendance awards granted by the Respon-
dent in the past are indeed benefits, but they are a different
benefit than the cash award for employee-of-the-year, and are
not a precedent for the granting of such new, different benefit.
Finally, while Respondent argues that the employee-of-the-year
benefit was granted for the legitimate business purpose of re-
warding a deserving employee who went beyond the call of
duty, it was created only after it was presented with the specter
of union organization.
In American Sunroof Corp., 248 NLRB 748 (1980), the
Board held that “the granting of benefits during an election
campaign is not per se unlawful where the employer can show
that its actions were governed by factors other than the pending
election. And the Board has further held that an employer can
meet this burden by showing that the benefits granted were part
of an already established company policy and the employer did
not deviate from that policy upon the advent of the union.”
Here, based on my finding of facts, I conclude that the grant of
the employee-of-the-year cash award was motivated by the
Union’s organizational campaign and not by factors other than
the election. I reject the Respondent’s implied argument to the
effect that recipient Rautio’s job performance in 2004 was so
far superior to any employee’s previous job performance under
whatever circumstances that it called out for the Respondent to
create this award.
3. Milwaukee Brewers outing
Complaint paragraph 16(a) alleges that the Respondent, in
violation of Section 8(a)(1), “within a week or two after March
23,” granted employee benefits of free food and game tickets
for the Milwaukee Brewers May 1 baseball game, and com-
plaint paragraph 16(b) alleges that in conjunction with the
baseball game, the Respondent provided free jackets to em-
ployees. The Respondent maintains, in its counsel’s brief, that
giving the free jackets to employees was part of an already
established company policy which the Respondent did not de-
viate from in that the Respondent had previously given items of
clothing to its employees, and that the Brewers outing and
jacket gift were for the Respondent’s business purpose of “team
building” among its employees.
I found that in early April the Respondent invited its plant
employees and their guests to a Milwaukee Brewers baseball
game, and included free tickets and food at the game. The
outing took place on May 1, and “was a very expensive event.”
In late April, the Respondent provided employees with their
choice of a free jacket with Baptista’s logo and in a memo re-
quested that the employees wear the jacket to the baseball
game; “As we move Baptista’s forward it is important that we
do so as one unified team.” The jackets cost the Respondent
$2445.38.
Again here, the issue is whether the outing and jacket bene-
fits were granted for the purpose of inducing employees to vote
against the Union, and the granting of benefits during an elec-
tion campaign is not per se unlawful where the employer can
show that its actions were governed by factors other than the
pending election . Honolulu Sporting Goods Co., supra. The
Respondent has demonstrated, and I found, that on some previ-
ous occasions it has granted a free clothing benefit to employ-
ees, free festival tickets, and has provided free Christmas
lunches/dinners and associated items such as holiday turkeys.
But although the previous free clothing benefit is difficult to
compare to the free jacket benefit, it is clear that none of the
other events (which generally included employees contributing
food or drink in a “pot-luck” type fashion) was of the magni-
tude of the very expensive baseball outing. The cost of the
baseball outing and its timing becomes even more striking
when compared with Gardetto’s testimony that the reason the
Respondent had never before sponsored such an outing was
because it was very expensive and the Respondent “wasn’t
making money” and Mayer’s testimony that the Respondent
was not making money during the time of the organizational
campaign and was not consistently profitable until 2006.
The Respondent, in its counsel’s brief, argues that when the
Respondent sponsored the Brewers outing in 2005, it was moti-
vated “by its desire to building a unified team out of its work-
force, not a desire to interfere with employees’ exercise of their
Section 7 rights.” This argument refers to my finding that the
hiring of the “pasta people” in the summer of 2004 caused
some hostility between that group and the preexisting Bap-
tista’s employees and references the memo from the Respon-
dent to its employees with the logo jacket which stated, “As we
move Baptista’s forward it is important that we do so as one
unified team.” But, in view of the Respondent’s extensive
campaign against the Union, and a record here replete with
evidence of the Respondent’s animus, including from its high-
est officials, I conclude that the mention in the Respondent’s
memo as to “moving forward as one unified team” more likely
was a reference to moving forward after the election without
the Union.
Under all these circumstances, I conclude that the expensive
baseball outing, at a time the Respondent was no better able to
afford it than it was in previous years when it sponsored no
analogous event, was intended to further inhibit employee sup-
port for the Union, and that the Respondent has not established
that said outing was governed by factors other than the pending
election outcome. Accordingly, I conclude that the Respondent
violated Section 8(a)(1) as alleged in complaint paragraph 16(a)
by providing to its employees the Brewers outing benefit. I
further conclude that providing the logo jackets did not violate
the Act as alleged in complaint paragraph 16(b) as the Respon-
dent has established a pattern of past benefits of a similar na-
ture.
4. Two dinners for sanitation department employees
Complaint paragraphs 20(a) and (b) allege that the Respon-
dent violated Section 8(a)(1) by granting benefits to employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD578
when Jackson took several employees to dinner at Famous
Dave’s Restaurant, and also violated Section 8(a)(1) when
Gardetto took several employees to dinner at Ingrilli’s Restau-
rant. In his brief, the Respondent’s counsel argues that the
dinners took place in June, months after the election, that the
invited employees were members of the departments which had
performed extraordinary work in preparation for the AIB audit,
that there was no evidence that any comment “was made about
the representation election at these dinners” or that the invita-
tions depended on whether employees supported or opposed the
Union, and that “[b]ased on the evidence which was presented,
Baptista’s has proven that its motivation for these dinners was
wholly independent of the Union’s organizing campaign.” The
Respondent’s counsel further argues that in the past the Re-
spondent has provided complimentary meals to employees.
I found that in June, Jackson treated all of the sanitation and
quality control department employees and their guests to a
complimentary dinner at Famous Dave’s Restaurant for the
stated purpose of thanking the employees for their work to-
wards the AIB audit, and that about 2 or 3 weeks later, Howe
and Gardetto took the same group to a complimentary dinner at
Ingrilli’s Restaurant, that the price range for dinners at the two
restaurants is $10 to $25 and higher, and that only the Ingrilli’s
dinner included alcoholic drinks.
Again, the test here is whether the two free dinner benefits
were granted for the purpose of inducing employee disaffection
with the Union, remembering that the granting of benefits dur-
ing an election campaign is not per se unlawful where the em-
ployer can show that its actions were governed by factors other
than the pending election. Honolulu Sporting Goods Co., su-
pra.
Based on my finding of facts, and the above-discussed cir-
cumstances, I conclude that the Respondent’s providing of two
free restaurant dinners to the employees of the sanitation and
quality control departments and their guests, violated Section
8(a)(1) in that it constituted the granting of benefits during the
critical period for the purpose of influencing their union lean-
ings. In reaching this conclusion, I do not ignore the Respon-
dent’s argument that the dinners were for the purpose of thank-
ing the employees for their work in preparation for the audit
and that the Respondent had previously provided free meals to
employees in the past.
But what the Respondent did here was unprecedented in that
there is no evidence that on any previous occasion the Respon-
dent took employees and their guests to a restaurant for a free
dinner or purchased alcoholic drinks at a restaurant for their
employees, and this first and only occasion “happened” to fall
during the critical period. In the further context, that these
actions occurred in the midst of the Respondent’s aggressive
campaign against the Union, expressed animus, and other un-
fair labor practices, and the fact that the Respondent found it
necessary to treat the employees to a restaurant dinner not just
once, but twice, I conclude that the restaurant dinners were
provided for the purpose of influencing employees during the
critical period, and that the Respondent thereby violated Sec-
tion 8(a)(1) as alleged in complaint paragraphs 20(a) and (b).
5. The Wehrley survey
Complaint paragraphs 19(a)-(d) alleges that on April 22, the
Respondent notified “all employees that they would be intro-
duced to Team Building & Communications Consultant, Susan
Wehrley,” that about May 10, Wehrley distributed surveys to
employees, that as an inducement to return the completed sur-
veys, employees were offered and given $10 gift certificates,
and that the surveys, in violation of Section 8(a)(1), solicited
grievances with the implied promise that wages, hours, and
working conditions would be improved. In its counsel’s brief,
the Respondent argues that it had previously utilized Wehrley’s
services long before any union activity and that the record
demonstrates that the Respondent had a legitimate business
reason for utilizing Wehrley’s services as follows: “Unques-
tionably, Ms. Wehrley’s assessments solicited employee feed-
back and complaints. However, Baptista’s has a legitimate
business justification for doing so.”
In support of its argument that an employer may rebut the
preliminary finding of unlawful solicitation of grievances by
showing a legitimate business reason for the challenged prac-
tice, the Respondent cites Torbitt & Castelman, Inc. v. NLRB.,
123 F.3d 899, 907 (1997). Respondent also cites Leland Stan-
ford Jr. University, supra at fn. 1, as an analogous case in
which the Board concluded that an opinion survey rendered by
an employer to unrepresented employees and soliciting their
grievances concerning working conditions, does not violate the
Act even during the critical period, where “the opinion survey
was conceived for legitimate business reasons and was not
designed in response or opposition to the Union’s organizing
effort.”
I found that Respondent retained Wehrley in January, after
previously utilizing her services in 2000 and 2001 to work with
the Respondent’s management in improving communication
skills and blending management styles and manager’s person-
alities. This previous consulting work did not involve plant
employees subject to the current organizational effort. Wehrley
met with the Respondent’s top managers, including Gardetto,
on February 12 and Mayer’s e-mail following the meeting to all
attendees, thanking them for attending the Saturday meeting,
also addressed how supervisors should deal with employees
during the course of the Union’s organizing drive. Wehrley
met three times in February with the Respondent’s top man-
agement and was informed at these meetings of the existence of
the organizing drive, that management was concerned about the
drive, that management wanted to know the cause of employees
wanting a union, and management desired to have a union.
Wehrley, herself, testified as to designing the employee survey
that, “It wasn’t necessarily tied exactly to the union, but there
was a concern about why are people disgruntled.”
As discussed above, Section 8(a)(1) prohibits employers
from soliciting employee grievances in a manner that interferes
with, restrains, or coerces employees in the exercise of Section
7 activities. American Red Cross Missouri Illinois, supra. “An
employer who has a past policy and practice of soliciting em-
ployees’ grievances may continue such a practice during an
organizational campaign,” Johnson Technology, Inc., 345
NLRB 762, 764 (2005), but an employer cannot rely on past
practice to justify solicitation of grievances where the employer
BAPTISTA’S BAKERY, INC. 579
“significantly alters its past manner and methods of solicita-
tion.” Wal-Mart, supra (quoting Carbonneau Industries, 228
NLRB 597, 598 (1977).
Here, the Respondent, prior to the Union’s organizational
campaign, occasionally solicited suggestions or grievances, and
the Respondent has, in the past, used Wehrley’s services. But,
the Respondent never before circulated surveys among its plant
employees within the unit that is the subject of the organiza-
tional campaign and never before provided a benefit to employ-
ees for completing surveys. Under the circumstances here, I
conclude that the Respondent’s method of using surveys with
incentives for completion is a significant departure from any
past solicitation.
Inasmuch as the solicitation occurred in the critical period84
and in the context of the unprecedented usage of a gift certifi-
cate for completion of the surveys, Respondent’s aggressive
campaign against the Union, and concomitant unfair labor prac-
tices, I conclude that the surveys constituted a solicitation of
grievances with inference of a promise to remedy in violation
of Section 8(a)(1) of the Act. See, for example, American Red
Cross Missouri-Illinois, 347 NLRB 347, 350–352, where the
Board found the survey not to violate Section 8(a)(1), but in a
context where the employer, before union organizational activ-
ity, had utilized surveys to solicit employee grievances: “More-
over, the Respondent’s use of a survey is consistent with its
history of soliciting employee feedback with surveys.”
Moreover, in light of Wehrley’s testimony to the effect that
management wanted to know the cause of employees wanting a
union and that she was looking to find out why employees were
disgruntled, and the continuing pattern of unfair labor practices
I have found herein, there is a clear nexus between the organi-
zation drive and the survey. See Amptech, Inc., supra at 1137.
Finally, while the Respondent advances its asserted need to
build teams as a legitimate business reason for the surveys and
argues that it deliberately waited until after the election to con-
duct the surveys, I note that the Respondent did not “discover”
its need to build teams and implement the surveys until it faced
the specter of the Union’s organizing campaign, and that the
survey was conducted during the critical period, at a time it was
well aware of the nonfinality of the election and the Union’s
continuing interest in organizing its employees. I, thus, con-
clude that the Respondent has failed to rebut the inference that
the survey was designed to correct the discontent that led up to
the organizing drive and to ensure that the pending organization
effort failed.85 Accordingly, I conclude that the Respondent
violated Section 8(a)(1) as alleged in paragraphs 19(a)–(d) of
the complaint.

84 Postelection, but while objections and determinative challenges
were pending.
85 The instant situation is unlike that in Leland Stanford Jr. Univer-
sity, supra, where the Board found, “The record is clear that for a con-
siderable period of time, both prior and subsequent to the distribution of
the survey, there was no active campaigning on the part of either the
Union or the Respondents. . .” Here, the survey was distributed less
than 2 months after the unresolved election and the record does not
suggest that there was no active campaigning on the part of the Union
and the Respondent. In fact, I found that the Respondent’s unfair labor
practices continued after the election.
K. The 8(a)(3) Allegations
1. Kathy Mankin discharge
The complaint alleges that the Respondent discharged Kathy
Mankin in violation of Section 8(a)(3). The Respondent, in its
counsel’s brief, concedes that it was aware of her support for
the Union, but argues that she was discharged for job perform-
ance and “the General Counsel has failed to prove any causal
connection” to her support for the Union.
In deciding whether the Mankin discharge violated Section
8(a)(3), I apply the criteria laid down in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
To prove a violation under Wright Line, the General Counsel
must first show that protected [or union] activity was a moti-
vating factor in the Respondent’s decision to take adverse ac-
tion against the alleged discriminatee. The General Counsel
can satisfy this initial burden by proving that the alleged dis-
criminatees engaged in protected [or union] activity, that the
Respondent was aware of it, and that the Respondent demon-
strated some animus toward that activity. The burden then
shifts to the employer to demonstrate that the same adverse
action would have occurred even absent the protected activ-
ity.”
American Red Cross Missouri-Illinois Blood Services Region,
supra at 349.
The General Counsel has satisfied its initial burden in respect
to Mankin. Thus, I found Mankin participated in union activity
including being a member of the Union’s organizing commit-
tee. I also found, and Respondent conceded, it was aware of
Mankin’s activities and support for the Union. Finally, I found
that the Respondent engaged in an aggressive campaign against
the Union, committed other unfair labor practices and otherwise
demonstrated animus. The burden, thus, shifts to the Respon-
dent to demonstrate that it would engaged in the same adverse
action even absent the union activity.
In their brief, counsels for the General Counsel essentially
concede that Mankin experienced the work performance prob-
lems asserted by the Respondent, and that all three QA techs,
including Mankin, a union supporter, and Cassel who opposed
the Union, were repeatedly disciplined for their performance
shortcomings. Counsels for the General Counsel instead argue
that Mankin was treated differently because of her support for
the Union, and was, unlike Cassel—a union opponent—not
offered a position in a different department.
As found, the Respondent followed its policy of progressive
discipline in respect to all three QA techs, concluding in the
discharge of all three. While the Respondent did not offer
Mankin the chance to transfer to a different job, I could not find
that QA tech Cassel was extended such an offer by the Respon-
dent. Further, I found that Mayer told Sobiech, at a time prior
to his permanent layoff, that he should consider a move to a
different department, but Sobiech was laid off, not discharged,
and while Mayer told Sobiech to consider a different job, he did
not offer the job. The record demonstrates, and I found, that
Mankin was repeatedly disciplined for job performance short-
comings, and that the Respondent followed its policy of pro-
gressive discipline in respect to Mankin. Under these circum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD580
stances, I conclude that the Respondent has satisfied its burden
of demonstrating that it would have discharged Mankin even
absent her union activity. I, thus, conclude that the Respondent
did not violate Section 8(a)(3) by discharging Mankin.
2. Donna McCall discipline
Complaint paragraph 21(a) alleges that the Respondent dis-
ciplined Donna McCall in violation of Section 8(a)(3). The
Respondent, in its counsel’s brief, argues that McCall was dis-
ciplined for cause, that “there was no evidence of any relation-
ship between her union activity and this discipline,” and that
“there was no evidence that McCall was treated differently
than any similarly-situated employee who opposed the Union.”
Counsels for the General Counsel, in their brief, essentially
concede, as they must, that McCall engaged in the egregious
actions she is accused of, but maintain that she was disciplined
disparately: “While the General Counsel readily admits that
using the “N-word” is unacceptable, what needs to be consid-
ered is whether action taken against others who used that word
was consistent with this situation, involving a union supporter.”
In support of this disparate treatment argument, counsels for the
General Counsel cite McCall’s testimony that she heard Blan-
quel use the “N-word” on two occasions, and Glyzewski’s tes-
timony that he overheard lead packaging machine operator
(PMO) Mike Stanford refer to Manager Marlenea Jackson with
the “N-word” in the presence of Blanquel.
I apply the Wright Line test to the McCall discipline,86 as
discussed above. Under that test, I conclude that the General
Counsel has met his initial burden of showing that protected or
union activity was a motivating factor in the Respondent’s de-
cision to take adverse action against McCall. Thus, the General
Counsel has proved that McCall engaged in union activity, that
the Respondent was aware of it, and that the Respondent dem-
onstrated some animus toward that activity. I also conclude
that the Respondent has met its resultant burden by demonstrat-
ing that it would have taken the same disciplinary action even
absent the union activity, and thus did not violate Section
8(a)(3) of the Act by administering discipline to McCall, as is
alleged in the complaint. McCall clearly committed the acts
she was accused of and the Respondent did not act in a manner
inconsistent with its own disciplinary policy in administering a
final warning to McCall. Mayer imposed the discipline when
he learned of the incident.
Finally, in my findings, I have not found that either Blanquel
or Stanford in Blanquel’s presence used the racial slur involved
herein. Inasmuch as there is no other evidence involving an
employee similarly situated to McCall, I reject the disparate
treatment argument advanced by counsels for the General
Counsel. Accordingly, having applied Wright Line, I conclude
that the Respondent did not violate Section 8(a)(3) by adminis-
tering a final warning to McCall.

86 I note that the discipline of a final warning was not inconsistent
with the Respondent’s then-existing disciplinary policy. While the
policy provided for progressive discipline, the Respondent’s discipli-
nary guidelines also provide as follows: “There may also be instances
where disciplinary action will not be progressive, depending on the
severity and circumstances of the situation.”
3. The Respondent’s 10(b) argument
The Respondent maintains that most of the allegations added
by the General Counsel’s amendment to the complaint of Feb-
ruary 17, 2006, are untimely in that they were never alleged in
any prior charge or complaint. These allegations appear in the
amended consolidated complaint of February 22, 2006, the
operating document of the litigation, as paragraphs 8(a)–(b),
9(c)–(d), 10(a)–(b), 11(a)–(b), and 20. The February 22
amended consolidated complaint added no new allegations, and
was introduced at the trial by the General Counsel, without
objection, at the undersigned’s request, so that the parties
would have one operating document for reference during the
litigation, rather than a series of documents. The Respondent
raised the 10(b) issue as an affirmative defense in the answer it
filed on February 22 to the amended consolidated complaint.
Counsels for the General Counsel do not address this issue in
their brief.
The General Counsel previously issued a complaint in Case
30–CA–17104 on June 30, 2005, and issued a complaint in
Case 30–CA–17268 on December 30, 2005. The original
charge in Case 30–CA–17104 was filed on February 11, 2005,
and amended charges were filed on April 29 and May 31, 2005.
The original charge in Case 30–CA–17268 was filed on August
15, 2005, and amended charges were filed on September 15,
October 31, and November 2, 2005. The specific allegations,
which the Respondent argues are precluded by Section 10(b)
and which were added by the February 17 amendment to com-
plaint, are as follows: In the first or second week of February,
Gardetto solicited grievances; in March, Gardetto promised an
employee things would get better; in mid-February, Blanquel
made threats of plant closure; in February or March, Blanquel
solicited grievances and promised benefits after a meeting; in
February or March, Blanquel and Olson solicited grievances
during and after a meeting; in February, Lepak told employees
that the Respondent wanted employees with good attitudes and
that the Respondent was trying to move forward during a cap-
tive audience meeting; in mid-February, Lepak told an em-
ployee that the Respondent was looking for workers who “don’t
cause trouble or open their mouths that much about stuff;” in
June, Jackson took employees to dinner at Famous Dave’s Res-
taurant; and in June, Gardetto took employees to dinner at
Ingrilli’s Restaurant.
Traditionally, the Board and the courts have allowed the
General Counsel to add complaint allegations outside the 6-
month 10(b) period if they are closely related to the allegations
of the timely filed charge. Redd-I, Inc., 290 NLRB 1115, 1116
(1988). There is a three-factor test for determining whether a
sufficient relationship exists between an otherwise untimely
allegation and a timely filed charge. Id. at 1118.
First the Board assesses whether the otherwise untimely alle-
gation involves the same legal theory as the allegation in the
timely charge. Second, the Board examines whether the alle-
gations arise from the same factual situation or sequence of
events. Third, the Board may look to whether the Respondent
would raise similar defenses to both allegations.”
Precision Concrete, 337 NLRB 211 (2001). See also Regency
Grande Nursing & Rehabilitation Center, 347 NLRB 1143,
BAPTISTA’S BAKERY, INC. 581
1143 fn. 2 (2006).
The charges and amended charges filed by the Union here87
contain allegations as follows: (1) original charge in Case 30–
CA–17104: alleges that the mass layoffs violated Section
8(a)(3); (2) first amended charge in Case 30–CA–17104 added
the following relevant 8(a)(1) allegations: That shortly before
March 23, threatened that if the Union won the election, em-
ployees would lose benefits, everything would start from zero,
and leadman pay would not be awarded to an employee. This
amended charge also added allegations of surveillance, prom-
ulgation of a no-solicitation rule, disparagement of the Union,
granting of benefits including the Brewers outing, jackets, and
employee-of-the-year award, and the solicitation of grievances,
and an announcement that it was considering changing the time
of year for employee evaluations; (3) the second amended
charge in Case 30–CA–17104 added an allegation as to the
Wehrley questionnaire.
The original charge in Case 30–CA–17268 added 8(a)(3) al-
legations of discipline. The first amended charge added further
allegations of 8(a)(3) discipline. The second amended charge
added the allegation of the alleged 8(a)(3) discipline of McCall.
The third amended charge added more allegations of discipline
in violation of Section 8(a)(3).
I conclude that all of the allegations disputed by the Respon-
dent as being precluded by Section 10(b), meet the Board’s
“closely related” test as being closely related to timely filed
charges herein, and are not precluded from litigation by Section
10(b). Thus, all of the disputed 8(a)(1) allegations added by the
General Counsel’s amendment to the complaint involve the
same legal theory as the 8(a)(1) allegations in the original and
amended charges in Case 30–CA–17104; that is, that the Re-
spondent engaged in solicitation of grievances, granting of
benefits, and threats, as part of its campaign against the Union.
Second, the disputed allegations all arise from the same se-
quence of events alleged in the original charges and amended
charges; that is, the Respondent’s campaign against the Union.
Third, the defenses raised by the Respondent to the disputed
allegations at trial are essentially similar to the defenses it
raised as to the undisputed (for purposes of Sec. 10(b)) com-
plaint allegations; that is, credibility, continuation of a preexist-
ing practice, business purpose, and Section 8(c). The disputed
allegations add no new theory of law and do not depart from
the factual scenario involving the organizing campaign which is
the subject of all of the charges and complaints involved here.
L. Permanent Layoffs of February 2
1. Kathi Szuszka’s layoff
The complaint alleges that Szuszka was laid off on February
2, along with the five other named alleged discriminatees. The
evidence clearly demonstrates that the Respondent had no in-
tention of laying off Szuszka, and did not lay her off on Febru-
ary 2. In answer to my question during the trial, counsel for the
General Counsel argued that the Respondent’s actions vis-à-vis
Szuszka were akin to a constructive discharge, but did not
amend or seek to amend the complaint to so allege and, hence,

87 The Respondent does not contest the timeliness of any of the
charges or amended charges.
there is no allegation here that the Respondent offered a job it
knew she would refuse.
There is no evidence that somehow the Respondent targeted
Szuszka for special treatment by pretending to offer her another
job, knowing she would not accept it. And there is no evidence
that the Respondent specifically targeted Szuszka as a union
activist in that it wasn’t until February 7 that the Respondent
learned she was a member of the Union’s organizing commit-
tee, upon receipt of a letter from the Union.
Neither the Charging Party nor the General Counsel argues
that the Respondent did not offer Szuszka a job. And there is
no evidence that the Respondent’s offer to Szuszka was, in any
sense, a sham. It defies logic to believe that the Respondent
would have gone through the effort it made with Szuszka, to
find another position for her and to offer the position to her, if it
didn’t intend to keep her. At worst, there was a failure of
communication between Jackson and Szuszka in that Jackson
understood that Szuszka would not work on the first shift, and
would remain an employee only if Lepak could find another
position for her on an acceptable shift. I, thus, do not conclude
that Szuszka was laid off in violation of Section 8(a)(3), as
alleged.
2. Rest of the layoffs
Complaint paragraph 6 alleges, in pertinent part, that on Feb-
ruary 2, the Respondent permanently laid off employees So-
biech, Crowley, Bohen, Starrett, and Zullner because employ-
ees of the Respondent engaged in union activities. The Re-
spondent’s answer admits the layoffs, but denies that they were
connected to union activity. Respondent asserts that it laid off
the five alleged discriminatees for economic reasons. I apply
the Wright Line, supra, test to analyze whether the layoffs vio-
lated the Act.
M. The General Counsel’s Wright Line Burden
Under Wright Line, I conclude that the General Counsel has
met its initial burden of demonstrating that union activity was a
motivating factor in the layoffs. In reaching that conclusion, I
find that various employees of the Respondent were involved in
a union organizing drive prior to the layoffs or any decision to
layoff, that the Respondent was aware of the activity, and that
the Respondent has displayed animus toward the organizational
campaign.
First, under Wright Line, there is no dispute that prior to the
layoffs, some of the Respondent’s employees were engaged in
organizing activity on behalf of the Union. Thus, Brzezinski
first contacted the Union on January 12, and three union meet-
ings were held in January for and with employees interested in
union representation. The General Counsel does not contend
that the Respondent deliberately chose certain employees for
layoff because of their union activity, and the Board has held
that in the case of layoffs, antiunion motivation may be found
even when some, or even most of the laid-off employees were
not known union supporters. See, e.g., McGaw of Puerto Rico,
Inc., 322 NLRB 438 (1996), enfd. 135 F.3d 1 (1st Cir. 1997).
Accordingly, the General Counsel is not required to show a
correlation between each employee’s union activity and his or
her layoff, because it is the mass layoff, not the selection of
employees for layoff that is at issue. Instead, the General
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD582
Counsel’s burden is to establish that the mass layoff was or-
dered to discourage union activity or in retaliation for the pro-
tected activity of some. See Davis Supermarkets, Inc., 306
NLRB 426 (1992), quoting ACTIV Industries, 277 NLRB 356
fn. 3 (1985).
As to animus, the record is replete with evidence of the Re-
spondent’s aggressive campaign against the Union, and I have
found that the Respondent has engaged in actions during the
campaign violative of Section 8(a)(1), including by some of the
Respondent’s highest officials. The effect of such unfair labor
practices is magnified when the conduct is perpetrated by high-
ranking officials. See Weldun International, Inc., 321 NLRB
733, 736 (1996).
I also conclude that the Respondent was aware of the orga-
nizing activity at the time it decided on and implemented the
layoffs. I found that on February 7, the Respondent received
formal notification from the Union as to its organizing drive
when Mayer received and read the Union’s notification sent by
fax. I also found that about January 26, Brzezinski talked to
Shift Manager Olson about “getting a union.” I further found
that a couple of weeks before February 9, maintenance me-
chanic Cantwell made a comment about a union, heard by Shift
Manager Sertich, and that Sertich had so reported to Vice
President Lepak within a day or two after hearing the com-
ment.88
Lepak, as the Respondent’s vice president of manufacturing,
was directly involved at meetings where the Respondent dis-
cussed determining the layoffs and new shift assignments. On
direct examination, when asked by the Respondent’s counsel if
he was “aware the Teamsters were in the process of trying to
organize Baptista’s employees,” at the time of his involvement
in layoff decisions, Lepak answered, “No.” Lepak was then
asked by the Respondent’s counsel, “At any time prior to the
change in the production schedule . . . did you have any knowl-
edge of that?” He again answered, “No.” However, in reach-
ing my conclusion that, in fact, Lepak was aware of some union
activity, I note that the comment by employee Cantwell, heard
by supervisor Sertich and passed on by Sertich to Lepak, did
not contain a specific reference to the “Teamsters,” but rather
referred to a union, generically. Thus, while Lepak specifically
denied knowledge of a Teamsters campaign at the time of his
involvement in layoff decisions, he never denied what other
evidence demonstrated, that is knowledge of some union activ-
ity.89
As to Shift Manager Olson, I found that he also had knowl-
edge that a union was being discussed by employees. Similarly
to Lepak, on direct examination, Olson, when asked if prior to
when he learned (about 2 or 3 weeks before the layoffs) about
the change in shift schedules, he had “any idea that the Team-

88 Mayer testified that Sertich said that he didn’t take Cantwell’s re-
mark seriously. But, of course, he took it seriously enough to report the
remark to Vice President Lepak.
89 On direct examination, Lepak testified:
Q. During the time you personally were involved in the proc-
ess of determining new shift assignments, determining layoffs,
were you aware that the TEAMSTERS were in the process of try-
ing to organize Baptista’s employees?” [Emphasis added.]
A. No.
sters were interested in an organizing campaign at Baptista’s,”
answered, “I don’t believe so, no.” Thus, Olson denied knowl-
edge of the Teamsters, but did not deny knowledge of union
activity. I found that Olson learned of union activity from his
conversation with Brzezinski. Brzezinski testified as to talking
about a “union” and did not testify that he specifically men-
tioned the Teamsters.
As noted, Vice President Lepak was directly involved in the
layoffs. Further, while the record does not establish that Shift
Managers Olson and Sertich were similarly involved, “[I]t is
well established that a supervisor’s knowledge of union activi-
ties is imputed to the employer.” Dobbs International Services,
335 NLRB 972 (2001). I, thus, base my finding that the Re-
spondent was aware of union activity prior to the February 2
layoffs, on the actual knowledge of Lepak, and the knowledge
imputed to the Respondent through Supervisors Olson and
Sertich.90
In his brief, the Respondent’s counsel poses the key issue as
to knowledge, as being whether the General Counsel proved
that the Respondent’s relevant decisionmakers knew of the
organizing campaign before the decisions were made, but then
argues that “Baptista’s decision makers did not know of the
Teamster’s organizing campaign prior to the February 2 lay-
offs.” Phrasing the argument this way is significant because
nowhere in the Respondent’s brief is there any explicit date
mentioned or suggested for such a decision by the Respondent.
Indeed, nowhere in the record does any witness of the Respon-
dent directly testify to or establish any firm date when the Re-
spondent reached a decision to permanently lay off employees,
or a firm timeline for such decision.
Thus, Mayer testified that the Respondent’s managers,
Mayer, Howe, Lepak, and Jackson, first held meetings with
regard to possible layoffs in early January, and late December
2004. Upon being shown a document to refresh his recollec-
tion, Mayer changed his testimony as to these meetings and
testified that they occurred some time during the week of Janu-
ary 24. Mayer also testified that the Respondent used no
documents at these meetings to come to a decision.
Jackson first testified, in response to the General Counsel’s
questions, that she was in a meeting at which there was a deci-
sion to cut back but couldn’t remember the date. Also in re-
sponse to the General Counsel’s question, Jackson testified that
as of January 29 she wasn’t intending to, and wasn’t directed
to, lay people off. Counsel for the General Counsel then asked
Jackson, “Okay, so it was after January 29th that you were first
informed there was going to be cutbacks because of slow busi-
ness, correct?” Jackson answered, “As far as I remember, yes.”
But, after a 5-week recess in the trial, when questioned by the
Respondent’s counsel, Jackson testified that her testimony to
the General Counsel as to the January 29 was “obviously
wrong” because she would have needed more than a few days
to figure out who she would lay off. Jackson testified, “I was
obviously wrong because it took longer to get to move through
this and figure out who we would like to keep, who we
wouldn’t, what we were going to actually do. Were we going

90 I find any testimony to the contrary by Mayer, Howe, or other of-
ficials of the Respondent to be noncredible in view of this conclusion.
BAPTISTA’S BAKERY, INC. 583
to release people?91 Were we going to go to the five day work
week. It takes longer than just a couple of days.” Because of
the inconsistency of Jackson’s testimony and her initial testi-
mony that she couldn’t remember the date of any meetings
when a cutback decision was made, I find that I cannot rely on
Jackson’s testimony to establish any date for the Respondent’s
decision to permanently lay off employees, nor any timeline
therefor.
Lepak testified that he was present at a meeting or meetings
where the Respondent’s officials discussed the changes imple-
mented on February 2, but also testified that he couldn’t recall a
specific date when any meetings were held. Lepak, in response
to the Respondent’s counsel’s question testified, “Well, I don’t
recall specifically, you know, the date that we talked about it.”
The Respondent’s counsel then asked Lepak if the decision was
reached in a single meeting or a series of meetings. Lepak
answered, “I don’t recall if it was one single meeting. I don’t
believe it was. We talked about it obviously on several occa-
sions.” Lepak, thus, does not establish a date for the Respon-
dent’s decision to permanently lay off employees nor any time-
line therefor.
The Respondent’s counsel asked the Respondent’s president,
Tom Howe, how long it took the Respondent to make the deci-
sion to change the shift structure, as follows: “Q. Now again, I
understand that very few decisions are made overnight—the
decision to go from four twelves to three eights, was that a
decision made in a couple days or was it a longer process?
A. It would have been a longer process.” Howe then testified
that the timeframe for the decision was “approximately a
month.” Howe testified that he was not the person who decided
layoffs would be necessary, that he was part of discussions with
Mayer and Lepak as to the “implementation of the new produc-
tion schedule,” and that these were multiple discussions over an
approximate period of 3 weeks. Howe then gave the following
answers to the questions of the Respondent’s counsel:
Q. Before we talk about specifics, to the best of your
recollection, what topics were discussed at these meet-
ings?
A. The meetings that I was part of was what the shift
structure would be, as it relates to the number of jobs one
each of the shifts.
Q. As part of the discussion of the number of jobs on
each shift, to the best of your recollection, was there any
discussion in any of those meetings about the need for any
layoffs?
A. Yes.
Q. Now, to the best of your recollection, what specifi-
cally was said and by whom?
A. That there would be less jobs. Less positions re-
quired, since we were contracting from these four shifts to
three shifts.
As I found as to Lepak and Jackson, I find that Howe’s tes-
timony establishes no firm date for the Respondent’s decision

91 Thus, even Jackson’s second version, if credited, leaves open the
question of whether the Respondent had initially decided on permanent
layoffs.
to permanently lay off employees, nor any specific timeline.
Indeed, Howe, the president of the Respondent, did not estab-
lish who made the decision (except, that he didn’t), exactly
when a decision was made, and the specifics of the decision.
Finally, when asked by the Respondent’s own counsel, who
said what at the meetings where layoffs were allegedly dis-
cussed, Howe responded with generalities and a failure to iden-
tify the speakers. Howe did testify, in response to the questions
of the Respondent’s counsel as follows: “Q. Not only were
they [the layoffs] a natural consequence, but they were an in-
evitable consequence of that [new] shift structure? A. That is
correct.” But such testimony, which seems to suggest that no
decision to lay off employees was necessary because it was a
natural consequence of the new shift structure, is belied by
what the Respondent has done before when faced with such
downturns, and what options are available in general to em-
ployers facing such situations. I will not substitute my judg-
ment for the Respondent’s in deciding what to do when faced
with such a problem, but find that it is facile to suggest that
there was no decision to be made as to various options includ-
ing layoffs. It is certain that some official of the Respondent
decided there would be permanent layoffs and there was a date
definite on which that decision was reached. But this record
does not provide a basis for making such findings.
Thus, in a case where the date of the Respondent’s decision
to permanently lay off employees is crucial, the Respondent
failed to establish a date when the decision was made, or a
timeline for the decision, and leaves it largely to speculation as
to who made the decision. Howe testified that he decided on
the shift changes, but Lepak and Mayer decided there would be
layoffs. Lepak testified that he attended management meetings
where the subjects of the shift change and production were
discussed, that he was involved in deciding which employees
would be laid off, but did not testify that he made the decision
that the Respondent would lay off employees. Mayer testified
as follows in answer to counsel for the General Counsel’s ques-
tions:
Q. Were you involved in the decision to lay off the
employees?
A. Yes.
Q. Did you initiate the idea that the employees would
be laid off?
A. No.
Q. Who did?
A. I don’t recall.
Q. What was your role in the process?
A. Making sure that severance was taken care of, un-
derstanding the reasoning behind the layoffs. I felt com-
fortable with it, or I should say with the individuals.
Based on my earlier findings that the Respondent had
learned of union activity by January 26, and the failure of the
Respondent to establish any date or timeline for the decision, or
even who made the decision, I conclude that the Respondent
had knowledge of the union activity prior to the February 2
permanent layoffs, and before any decision to engage in lay-
offs. Thus, under Wright Line, the General Counsel has estab-
lished that employees engaged in union activity, the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD584
dent was hostile to that activity, and had knowledge of the ac-
tivity when it decided to permanently lay off employees.
N. The Respondent’s Wright Line Burden
I further conclude that while the General Counsel has met its
initial Wright Line burden, the Respondent has failed to meet its
resulting burden that it would have engaged in the permanent
layoffs even absent the union activity. The Respondent argues,
essentially, that the permanent layoffs were caused by a “dou-
ble-whammy” consisting of the normal downturn that occurs at
the Respondent’s business, and throughout the snack business,
in the period following the “Super Bowl” each year, combined
with disappointing sales and projected future sales of certain
snack products, including the Weight Watchers and Old Dutch
products. But, I find that the Respondent has failed to establish
that the layoffs were legitimately based on anything other than
the seasonal downturn, and that in previous years, before union
activity, the Respondent had dealt with such downturns by
methods other than permanent layoffs. The testimony of the
Respondent’s top officials at the time does not establish to the
contrary.
Lepak testified as follows in response to questions of the Re-
spondent’s counsel:
Q. Before we talk more about those layoffs I want to
finish exploring the business conditions. What in particu-
lar was in a downturn? What products, what parts of the
business were suffering?
A. Well, basically—you know, again I don’t recall
specifically, you know, which of our, you know, products
or customers were worse off than others but throughout
the winter, you know, snack foods generally decline in
sales so that was our primary—that is the company’s pri-
mary business.
Q. Were you part of any discussions about how much
of this slowdown was simply due to the season and it
would pick up in the summer?
A. Again I don’t recall specifically, you know, that
was part of it.
The Respondent’s president, Tom Howe, testified that he did
not make the decision that the permanent layoffs were neces-
sary, but did make the decision to change from four 12-hour
shifts to three 8-hour shifts. Howe testified as follows as to the
basis of his decision to change the shift structure: “There was a
two-fold reason. One was the seasonal reduction in demand for
snack food products, principally through our major snack cus-
tomers. Secondly is both the Old Dutch and Weight Watchers
sales volume, regardless of seasonality, had fallen off substan-
tially.” In answer to a later question, Howe testified, “The
seasonal slow-down had very little to do with the permanent
change in the production schedule.”
As to the Weight Watchers business, Howe testified as fol-
lows: “The Weight Watchers new products that we introduced
in mid-2004 were anticipated achieving a certain sales volume
level, on a sustained basis, even giving consideration for sea-
sonality. They were not successful in the marketplace. There-
fore, the sales had dropped substantially and ultimately were
discontinued.” Howe testified that the Weight Watchers prod-
uct was discontinued in the first quarter “thereabouts” of 2005.
When asked if he had any discussions with Weight Watchers
about the success and volume of the product, Howe testified,
“Yes. I speak with their key people, Stacy Gordon and David
Rosenfeld, at least weekly, and they provide us sales data.”
When asked at what point those discussions involved any con-
sideration of stopping the Weight Watchers products com-
pletely, Howe testified, “It would have been shortly after
Christmas of ‘04, when the targeted sales volume for the prod-
uct at their locations was falling rapidly.” When asked by the
undersigned when the first such discussion occurred about the
total discontinuation of the Weight Watchers product, Howe
testified, “I don’t recall.”
As to the Old Dutch business, Howe testified that customer
Old Dutch’s product volume was down 20 percent from the
year before, a time at which the Respondent had not yet ac-
quired Old Dutch as a customer. Howe testified that he was
provided the sales information by Matt Colford of Old Dutch,
and that Old Dutch “at that time was about 35 percent of our
total sales, and their sales were down about 20 percent from
prior year, actual.” My attempts to elicit from Howe the dates
of any conversations with Old Dutch officials as to their sales
was as follows:
Q. Do you recall when this conversation was?
A. It was in 2000—late 2004 and 2005.
Q. Can you be any more specific?
A. I have conversations weekly with our customers.
. . . .
Q. Okay, and those discussions would have occurred
when?
A. In late 2004, early 2005.
Q. Do you remember when the first such discussion
was?
A. No.
Howe testified that he was present at multiple conversations
over 3 weeks with Mayer and Lepak at which the subject of the
shift structure was discussed. Howe then testified as follows in
response to the questions of the Respondent’s counsel:
Q. As part of the discussion of the number of jobs on
each shift, to the best of your recollection, was there any
discussion in any of those meetings about the need for any
layoffs?
A. Yes.
Q. Now, to the best of your recollection, what specifi-
cally was said, and by whom?
A. That there would be less jobs, less positions re-
quired, since we were contracting from these four shifts to
three shifts.
Howe’s failure to fully answer this question casts further doubt
on his credibility, at least in respect to the quality of his recol-
lections.
As discussed above, Mayer testified that he attended discus-
sions with Howe, Lepak, and Jackson during the week of Janu-
ary 24. Mayer testified that at these meetings, Howe said that
the Respondent “needed to cut back.” Counsels for the General
BAPTISTA’S BAKERY, INC. 585
Counsel asked Mayer whether Howe, at these meetings, gave
any reasons why he expected a slowdown. In response, Mayer
testified, “He talked about customers, what he had heard from
them. Called it a cyclical drop late January after Super Bowl.”
Mayer testified, as to these crucial meetings at which layoffs
were allegedly discussed, that there were no notes taken during
the meetings, no agendas prepared for the meetings, no e-mail
messages announcing the meetings or detailing what took place
at the meetings, and no documents reflecting what took place at
the meetings or when the meetings occurred. Finally, Mayer
testified, in response to counsel for the General Counsel’s ques-
tion, that he made a search of the Respondent’s records for
documents reflecting a drop in future orders, but couldn’t find
any such documents.
Thus, while Howe testified that the downturn in sales of
Weight Watchers and Old Dutch products were the main impe-
tus for the layoff decision, Lepak, and Mayer, quoting Howe,
placed the blame on the yearly cyclical downturn. I found
Lepak and Mayer to be generally reliable witnesses. Howe was
not as impressive a witness both in demeanor and in his lack of
detailed recollections as to the dates when significant events
occurred and of the details of significant meetings, as is demon-
strated by some of his quoted testimony above. His answers
were frequently not directly responsive to questions.92 Finally,
the Respondent produced no documents detailing what took
place at the meetings or when the meetings occurred.
In support of its economic defense to the layoff allegation,
the Respondent produced very limited financial records or other
documents at the hearing. The Respondent introduced a docu-
ment (R. Exh. 146) consisting of three charts made by its cus-
tomer Weight Watchers, showing sales and forecasted sales of
its snack products baked by the Respondent. The third Weight
Watchers chart shows that its sales of products produced by the
Respondent were in the 75,000 to 125,000 pound range as the
products were being rolled out in May through November
2004, climbed to over 450,000 pounds upon full distribution in
December 2004, fell to about 350,000 pounds in February
2005, fell again to about 250,000 pounds in March 2005, rose
to about 300,000 pounds in April 2005, and were forecast for
period May through September to be in the monthly range of
200,000 pounds.
Howe testified that he received the third chart from Weight
Watchers in April 2005, some 2 months after the permanent
layoffs, and did not know when he received the other two
charts. Howe did not unequivocally testify that he specifically
relied on the Weight Watchers documents in reaching his deci-
sion to change the shift structure, but did testify that he would
have relied on Weight Watchers provided documents, “. . . if
Weight Watchers would have provided us, which they periodi-
cally [sic], depending upon which meeting you are referring to,
information regarding how the volume is tracking versus their
expectation.”
The Respondent also introduced a three-page document (R.
Exh. 143), the first two pages of which were computer gener-
ated on March 3, 2006, and show for the months June through

92 Here, as elsewhere, for the discussed reasons, I do not credit
Howe.
December 2004, both the monthly totals and the grand totals for
the period of the Respondent’s sales, by pound, to customer
Old Dutch. Page three of the document, showing a computer
generated date of January 29, 2004, consists of the Respon-
dent’s planned sales to Old Dutch, by weight, for the months of
April through December 2004. This document shows that the
Respondent’s actual sales to Old Dutch, by weight, were below
the planned sales for every month from June through Decem-
ber, except September, but does not show a particular crisis
period at the end of 2004. Thus, relying on the Respondent’s
document, the actual sales by pound to Old Dutch was 18.8
percent below plan in October, 12.2 percent below plan in No-
vember, and 8.2 percent below plan in December. This docu-
ment does not cover the January 2005 period leading up to the
layoff, but the October through December results show that,
instead of a crisis, the sales versus planned sales to Old Dutch
were improving in the period immediately preceding the layoff.
The final document introduced by the Respondent (R. Exh.
144) in support of its economic defense is a computer generated
printout identified by Howe as a report of the Respondent’s
actual sales, both by weight and dollar, by product and cus-
tomer, and cumulatively, versus planned sales, on a monthly,
and year-to-date basis, beginning with the 4-week period end-
ing January 28, 2005, and ending with the 4-week period end-
ing May 27, 2005. Because this document does not contain any
sales data for 2004 or prior years, it does not present a picture
of the months leading up to the layoff or allow comparison to a
comparable period in 2004 or earlier years. The document,
thus, does not allow comparison to prior years when the Re-
spondent did not permanently lay off employees and when the
cyclical seasonal slowdowns also afflicted the Respondent.
But the Respondent’s Exhibit 144, like Respondent’s Exhibit
143, does not demonstrate an extraordinary crisis situation in
respect to the Respondent’s sales in January or February 2005.
For January, the Respondent’s sales to Old Dutch, the customer
cited by Howe along with Weight Watchers, was actually 3.5-
percent higher by weight than planned, and equal to the plan in
dollar sales. Sales to Weight Watchers by revenue, the second
customer cited by Howe, were down 26 percent from the plan.
The Respondent’s overall sales by revenue during January were
16 percent lower than planned sales. Then, in February, the
month in which the layoffs occurred, overall sales by both
revenue and weight were higher than planned sales, and sales to
Weight Watchers by weight also exceeded the plan, while sales
to Old Dutch by revenue and weight were substantially below
the plan. In March, the Respondent’s sales, by revenue, were
12.3 percent below the plan. In April, revenue sales were 46.8
percent below the plan, due substantially to a shortfall in
Weight Watchers revenue. In May, revenue sales were 59 per-
cent below the plan.
Respondent’s Exhibit 144 also appears, to some extent, in-
consistent with admissions contained in its counsel’s position
statement to the Board during the investigation of the charges.
Thus, the exhibit shows that the Respondent’s grand total of
sales by weight for the 4 weeks ending January 28 as 1,034,000
pounds. The exhibit contains no breakdown by individual
week. The position statement (GC Exh. 103), states as follows
on page 3: “In the week ending January 7, 2005, Baptista’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD586
produced 302,155 pounds of product. The following week it
produced 369,798 pounds. The week ending January 21, the
Company produced 364,875 pounds. The following week, a
marked decline began. In the week ending January 28, 2005,
Baptista’s produced only 281,420 pounds of its product.” Add-
ing these 4 weeks as set forth in the position statement, totals
1,318,248 pounds of product, as opposed to the exhibit which
shows a total of 1,034,000 pounds. The record contains no
further explanation as to which figure is accurate, if either, and
the brief of the Respondent’s counsel does not address this
inconsistency. Absent such an explanation, I decline to rely on
either document.
Thus, the record contains a paucity of contemporaneous
documents in which the Respondent sets forth either a decision
to lay off employees or the reasons for such layoffs, or financial
documents which demonstrate some sort of sales or other fi-
nancial crisis which would have reasonably incited the Respon-
dent to engage in an extraordinary permanent layoff of employ-
ees. There is, however, a lone contemporaneous document in
which the Respondent does, in fact, state its asserted reason for
the layoffs, the February 2 memo from Howe to “All Shop
Employees.” The memo begins:
As all of you have noticed from our work activity, we are ex-
periencing the annual postholiday lull in orders that always af-
fects the snack industry, something I explained in my notice
of July 9, 2004, when announcing our change to a 7/24 two-
week rotation. This slowdown is common throughout the
snack industry, and snack companies typically adjust their
work schedules, reduce their work weeks, and schedule plant
shutdowns.
The memo discusses the shift changes and the layoffs, in per-
tinent part as follows:
The second step we’ve taken, and one that we regret was nec-
essary, is the layoff of some members of our workforce to re-
flect our current and near-term business level and added ca-
pacity going forward. These involved tough decisions, we
provided those people some assistance to help during their
transition to new opportunities, and our focus was on retain-
ing people possessing the skills, knowledge, flexibility, reli-
ability and attitude that provide the best foundation for build-
ing for the future. [Emphasis in original.]
The memo continues:
“Please do not read anything into these changes beyond it be-
ing a temporary seasonal adjustment. [Emphasis added.]
Our business is growing, we have made significant invest-
ment in baking and packaging equipment to foster that
growth, and potential customers are excited about what Bap-
tista’s [sic] to offer.
Thus, this memo, the only contemporaneous document from
Respondent in the record, unequivocally points to the normal
seasonal slowdown as the reason for the layoffs. It assures
employees that the problem is only “current and near-term.”
The Respondent, in its counsel’s brief, argues that Howe
principally relied on the alleged sales problems affecting its
products produced for Weight Watchers and Old Dutch in
reaching his decision to change the Respondent’s shift struc-
ture. More specifically as to Weight Watchers, the Respon-
dent’s brief asserts that “Howe had weekly conversations with
Weight Watchers’ representatives who monitored the sales and
quality of Baptista’s products,” and that “[t]he products Bap-
tista’s made for Weight Watchers sold below expectation.”
The brief further asserts that “in December 2004, Weight
Watchers told Mr. Howe it was evaluating whether to discon-
tinue those products altogether,” and “[i]n the first quarter of
2005, Weight Watchers did just that.” More specifically as to
Old Dutch, the brief asserts that Howe relied on his conversa-
tions with Old Dutch officials to reach a conclusion that its
product requirements “would remain lower than the volume he
had projected originally.”
These arguments as to both the Weight Watchers and Old
Dutch business are unpersuasive. First, as to Howe’s conversa-
tions with Weight Watchers officials, Howe, himself, testified
that he didn’t recall when the first discussion with Weight
Watchers as to discontinuing its products occurred. The brief
asserts that the Weight Watchers products were totally discon-
tinued in the first quarter of 2005, but the Respondent’s Exhibit
143 shows sales continuing to Watch Watchers through the end
of the exhibit, the week ending May 27, 2005. As to his con-
versations with Old Dutch officials, Howe testified that he
didn’t recall when he had the first such conversation.
Based on the above, I conclude that the few financial records
introduced by the Respondent during the hearing do not support
its implied argument that by late January or early February, the
Respondent’s sales and projected sales were in a crisis situa-
tion. Further, the lack of any records whatsoever as to who
made the decision to permanently lay off employees and when
such decision was made or a firm timeline for such decision,
together with the conflicting and indefinite testimony of the
Respondent’s witnesses as to these issues, precludes me from
reaching conclusions as to who made the decision to lay off
employees, when the decision was made, or any firm timeline
for the decision.
The Respondent also argues that its permanent layoff of em-
ployees in 2002, well before any union activity, set a precedent
for the February layoffs at issue here. In fact, in November and
December 2002, the Respondent permanently laid off about 11
employees who were assigned to work on the “Lunch
Muncher” product, which the Respondent produced for a cus-
tomer. When the customer completed discontinued this product
line, the Respondent reacted by permanently laying off the
employees engaged in producing the product. Other than the
February layoffs at issue here, the 2002 layoffs are the only
time that the Respondent has permanently laid off employees
since Baptista’s was founded in 1999.
The Respondent’s argument, that its 2002 layoffs set a
precedent for the layoffs at issue here, is not persuasive. The
2002 layoffs were a result of a customer totally discontinuing a
product, and the Respondent reacted by laying off employees
involved in producing that product. In the instant case, no
product was discontinued at the time of the February layoffs,
and I found that the evidence demonstrated that at the time of
the layoffs, the Respondent was simply experiencing its normal
BAPTISTA’S BAKERY, INC. 587
seasonal downturn.93 Even if there was evidence that the Re-
spondent relied on the documents introduced at the hearing in
respect to customers Weight Watchers and Old Dutch, those
documents do not demonstrate a crisis in January or February.
Indeed, the only momentous event occurring at the time of the
early February layoffs was the Union’s organizational drive.
Various witnesses testified, without contradiction, that in prior
years when the seasonal slowdowns occurred the Respondent
avoided layoffs by assigning employees to cleaning duties, and
Mayer testified that the Respondent dealt with prior cyclical
slowdowns by various methods, including stopping production
for a period of time, temporarily laying off employees, and
reducing the number of temporary workers.94
Based on the above discussion, and the record as a whole,
the Respondent has not met its Wright Line burden of demon-
strating that it would have engaged in the February 2 permanent
layoffs, notwithstanding the union activities of some of its em-
ployees. Since I have already concluded that the General
Counsel has met its initial Wright Line burden, I further con-
clude that the Respondent’s February 2 permanent layoffs of
employees Sobiech, Crowley, Bohen, Starrett, and Zullner vio-
lated Section 8(a)(3) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the mean-
ing 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. By permanently laying off Dennis Sobiech, John Crowley,
George Ann Bohen, Lynda Starrett, and Judy Zullner, on Feb-
ruary 2, 2005, the Respondent has been discriminating in regard
to the hire or tenure or terms and conditions of employment of
its employees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(1) and (3) of the Act.

93 Howe testified that the Weight Watchers line was eventually dis-
continued, although the Respondent’s records produced at trial show
continued sales to Weight Watchers through the mid- 2005. But even if
the business was eventually discontinued, it had not been discontinued
at the time of the layoffs nor immediately thereafter.
94 The Respondent’s continued use of temporary workers after the
layoffs, casts additional doubt on the asserted economic basis for the
layoffs. The General Counsel introduced business records from two
staffing companies which provided temporary workers to the Respon-
dent, both before and after the layoffs, which demonstrate that the
Respondent’s usage of temporary workers continued on nearly the
same basis after the layoffs as it had before. Credited and uncontra-
dicted testimony of witnesses for the General Counsel established that
many of the temporary workers were performing the same work as had
been performed by laid-off workers. In its brief, the Respondent argues
that “it is meaningless to compare Baptista’s use of temporary employ-
ees in 2005 to any prior period” because some of the temporary em-
ployees were utilized short term in 2005 to prepare for the AIB audit,
and because since 2004 the Respondent’s “customer base and product
mix has continued to evolve” causing fluctuation in its need for tempo-
rary employees, and finally because the Respondent’s need for tempo-
rary workers fluctuates “based on its customer mix and production
capabilities.” But the records introduced by the General Counsel show
continued use of temporary employees after the layoffs on a basis akin
to their usage earlier in 2005, prior to the layoffs.
4. The following employees of the Respondent constitute 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 baking process operators,
including lead baking process operators, material handlers,
maintenance mechanics, quality technicians, packaging ma-
chine operators, including lead packaging machine operators,
sanitation specialists and sanitors, and shipping and receiving
clerks employed by the Respondent at its Franklin, Wisconsin
facility; excluding office clerical employees, guards and su-
pervisors as defined in the Act.
5. By the following actions, on about the dates95 set forth, the
Respondent has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the Act by
the following actions in respect to its employees:
(a) On February 18, and about March 1, 2005, solicited
grievances and made promises of benefits.
(b) About March 9, 2005, promised benefits.
(c) About February 15, 2005, made threats including loss of
benefits and plant closure.
(d) About February 15, 2005, told employees that if a union
was chosen, bargaining would start from “zero.”
(e) About February 22, 2005, told an employee that he was
not receiving a pay raise because of the union organizational
campaign.
(f) About February or March 2005, told assembled employ-
ees that the Respondent could not grow with a union and
wanted to move ahead with employees with good attitudes, and
in mid-February 2005, told an employee that the Respondent
had good workers who did not complain.
(g) On March 17, 2005, told assembled employees that sales
had grown and bringing in a union would wreck the progress.
(h) On May 1, 2005, provided employees and their guests
with the benefit of an outing to a major league baseball game,
which included free tickets and food.
(i) On March 28, 2005, provided employees with the benefit
of an “employee-of-the-year” award, which included a $500
gift certificate.

95 Some of the dates of alleged illegal actions were not specifically
pleaded in the complaint. Some others that were specifically pleaded
were supported by evidence that either demonstrated they occurred on
different dates or on indefinite dates. However, all the allegations were
fully litigated and the Respondent fully cross-examined all the wit-
nesses of the General Counsel, and engaged all the allegations with a
full defense. The Respondent does not argue, nor do I perceive, any
lack of due process because certain of the dates proved were different
from the dates pleaded, or that a date definite could not be established
for certain of the violations. In my findings and conclusions I have
attempted to set the dates as best established by the evidence, but be-
cause these events occurred some time before litigation and the recol-
lections by some witnesses were not precise as to date, I have not been
able to determine precise dates as to some of the violations found.
Nevertheless, all the violations found occurred after the inception of the
Union’s organizational campaign and/or during the Board’s critical
period after the petition was filed and before the election was final.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
(j) On February 21, 2005, posted, restated, and repromul-
gated its no-solicitation/no-distribution rule in response to a
union organizing drive.
(k) On a date in June 2005, provided employees the benefit
of free dinners at restaurants to employees and their guests.
(l) On May 10, 2005, solicited grievances from its employees
with implied promise of resolution, by distributing surveys to
employees, and providing a gift certificate for completion and
return of the surveys.
6. The unfair labor practices set out in paragraphs 3 and 5,
above, affect commerce within the meaning of Section 2(6) and
(7) of the Act.
7. The Respondent, in no manner other than that specifically
found any other manner alleged in the complaint, has violated
the Act or engaged in objectionable conduct.
8. By the unfair labor practices found above, relating to the
objection filed by the Union, and the following lettered objec-
tions set forth in the Regional Director’s order consolidating
cases and notice of hearing on challenges and objections to
conduct affecting the results of the election: A, B, C, D, F, and
H, the Respondent has engaged in objectionable conduct likely
affecting the outcome of the election held March 23, 2005, and
requiring that the results of the election be set aside and a rerun
election directed, should the counting of certain challenged
ballots, ordered herein, not result in a certification of the Union.
The appropriate unit for the election is the same unit previously
found appropriate in the representation case, as set forth above.
9. Employees George Ann Bohen and Judy Zullner, whose
ballots were challenged at the election, were eligible voters.
Employee Kathi Szuszka, whose ballot was challenged at the
election, was not an eligible voter.
10. None of the allegations of the amended consolidated
complaint are precluded by Section 10(b) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (3) of the
Act, as is set forth above, it will be ordered to cease and desist
therefrom and from any like or related conduct. Having found
that the Respondent has unlawfully permanently laid off the
five employees named in the conclusions of law, it will be or-
dered to offer them immediate and full reinstatement to their
former positions of employment or, if those positions are no
longer available, to substantially equivalent ones without preju-
dice to their seniority or any other rights or privileges they may
have previously enjoyed and make them whole for any loss of
earnings and benefits they may have suffered by reason of the
Respondent’s discrimination against them. Backpay will be
computed in accordance with the Board’s decision in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Further, the Respondent will be ordered to remove
from its files any references to the unlawful permanent layoffs
and notify the employees that it has done so and will not use
their layoffs against them in any way.
In respect to the representation case, it will be ordered that
the ballots of George Ann Bohen and Judy Zullner be opened
and counted, and a revised tally of ballots be prepared and
served on the parties. If the revised tally shows that the Union
has received a majority of the votes cast, the Regional Director
shall issue a certification of representative. If the revised tally
shows that the Union has not received a majority of the votes
cast, the election shall be set aside and a rerun election shall be
conducted. In conformance with this decision, the Respon-
dent’s challenge to the ballot of Kathi Szuszka is sustained and
the Respondent’s challenges to the ballots of George Ann Bo-
hen and Judy Zullner are overruled. Should a rerun election be
held, the election notice will include Lufkin96 language.
[Recommended Order and Direction of Second Election
omitted from publication.]

96 Lufkin Rule Co., 147 NLRB 341 (1964).