J & J Snack Foods Handhelds Corp.

National Labor Relations Board - Administrative Judge Opinions

Mar 13, 2015

19-CA-126632 (N.L.R.B. Mar. 13, 2015)

JD(SF)–07–15
Weston, Oregon
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
J&J SNACK FOODS HANDHELDS CORP.
and Cases 19–CA–126632
19–CA–127401
19–CA–127413
TEAMSTERS, WAREHOUSEMEN, GARAGE 19–CA–127689
EMPLOYEES AND HELPERS, LOCAL UNION NO. 839, 19–CA–134279
AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Helena A. Fiorianti, Esq.,
for the General Counsel.
James J. Sullivan. Jr., Esq.,
for the Respondent.
John Lee, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Pendleton, Oregon on
December 16–17, 2014, and in Seattle, Washington by way of videoconferencing on January 8,
2015.1 The Teamsters, Warehousemen, Garage Employees and Helpers, Local Union No. 839
(the Charging Party, the Union, or Local 839), filed the original charge in Case 19–CA–126632
on April 15, 2014, and the first amended charge on May 14, 2014.2 The Union filed the charge
in Cases 19–CA–127401 and 19–CA–127413 on April 25. In Case 19–CA–127689, the Union

1 Witness John Humble was hospitalized with a kidney stone on December 16. The parties agreed to
secure Humble’s testimony via videoconference. I find there was good cause and compelling
circumstances present based on the unforeseen nature of Humble’s unavailability. Fed. R. Civ. P. 43(a).
The Fed. R. Civ. P. 43, Notes of Advisory Committee on Rules—1996 Amendment, state that “the most
persuasive showings of good cause and compelling circumstances are likely to arise when a witness is
unable to attend trial for unexpected reasons such as accident or illness . . .”. Moreover, the Notes state
that “Good cause and compelling circumstances may be established with relative ease if all parties agree
that testimony should be presented by transmission.”
2 All dates in 2014 unless otherwise indicated.
JD(SF)–07–15
2
filed the original charge April 30 and the first amended charge on May 14. On July 31, the
General Counsel issued a complaint consolidating these charges. The Union thereafter filed a
second amended charge in Case 19–CA–127689 on June 27. On August 7, the Union filed the
charge in Case 19–CA–134279. The General Counsel issued a second complaint on October 29,
consolidating all the above-referenced charges. J&J Snack Foods Handhelds Corp. (the 5
Company or the Respondent) filed a timely answer denying all material allegations and setting
forth defenses.
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by: (1) telling employees that the Union’s representative was no longer 10
permitted on the Respondent’s premises; (2) failing and refusing to recognize the Union’s
representative; (3) denigrating and disparaging the Union; (4) encouraging employees to
abandon support for the Union and its representative; (5) promising employees, by soliciting
employee complaints and grievances, increased benefits and improved terms and conditions of
employment if they abandoned their support for the Union. 15
The complaint further alleges that the Respondent violated Section 8(a)(5) and (1) of the
Act when it bypassed the Union and: (1) solicited employees to indicate whether their contact
information could be shared with the Union; (2) solicited employees to communicate shift
preferences directly to the Respondent in a manner that implied that granting the shift preference 20
depended on whether they indicated their contact information could be shared with the Union;
(3) ceased its practice of providing employees with food products; (4) implemented a
requirement that Union representatives provide the plant manager with 24-hours notice of their
visits to the facility; (5) implemented a requirement that Union representatives sign in and out of
the plant with either the plant manager or the human resources manager; (6) implemented a 25
requirement that Union representatives visit the plant during administrative hours; (7)
implemented a requirement that the Union representatives confine their visits to the cafeteria; (8)
imposed a requirement that the Union representative not use the cafeteria as a Union hall and
limit visits to a “respectable” amount of time; and (9) banned Union representative Richard
Davies from the facility. 30
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following
35
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with a facility in Weston, Oregon, manufactures and 40
distributes snack foods. The Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
45
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II. ALLEGED UNFAIR LABOR PRACTICES
A . The Respondent’s Operations
J&J’s Weston plant produces a variety of food products, including pretzels, pretzel dogs, 5
and what employees commonly referred to as pizza pockets or hot pockets.3 These pockets
consist of pork, sauce, and cheese enrobed in a piece of dough, which is then flash fried and
frozen. J&J also co-packs for NutriSystem and ALDI’s Fit and Active product. (Tr. 367–368.)4
The plant was built by Lamb Weston and subsequently absorbed into ConAgra. J&J took over
the plant from ConAgra in 2011. The plant operates Monday through Friday, 24-hours a day, 10
with 3 different shifts.
Adam Ligon became the plant manager on October 14, 2013. Prior to that, John Humble
was the plant manager from August 2012–October 2013. Rob Tiburino served as plant manager
before Humble. When Ligon came on board, Humble became the quality assurance manager. 15
William “Mike” Adams, was a production supervisor until the summer of 2014, when he became
the production manager. (Tr. 279.) Karyn Schofield became the human resource (HR) manager
in January 2014. Prior to that, Linda Milagros was the HR manager.5 Sandy McCullough has
worked at the plant since she was 16-years-old in a variety of positions. McCullough was acting
HR manager after Milagros left and before Schofield was hired, but her title was HR 20
administrator.
B. The Bargaining Unit and Union Representatives
Since around 2005, the Local 839 has represented a wall-to-wall unit of all hourly 25
maintenance, sanitation, production, and quality assurance (QA) employees at J&J and its
predecessors. J&J voluntarily recognized the Union when it took over the plant from ConAgra.
(Jt. Exh. 3.) Of J&J’s roughly 165 employees, about 155 are Union members. (Tr. 367.) J&J
and the Union have been parties to successive collective-bargaining agreements. The first ran
from September 1, 2011, to September 30, 2013, and the second commenced on October 1, 30
2013, and runs through September 30, 2017. (Jt. Exhs. 1, 2.)
Robert Hawks has served as the Local 839’s secretary-treasurer since 1995. Three
business representatives, including Richard Davies, report to him. Davies became a business
representative for the Union in 2006. (Tr. 61.) He was assigned responsibility for the bargaining 35
unit at J&J in 2007.6 One reason Hawks assigned Davies to the J&J bargaining unit is because
he is bilingual, and the majority of the employees in the unit speak only Spanish. (Tr. 186.)

3 This product is not the same as the trademarked frozen product Hot Pockets that Nestle produces.
4 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for General Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “CP Exh.” for Charging
Party Exhibit; “GC Br.” for the General Counsel’s brief; “R Br.” for the Respondents’ brief; and “CP Br.”
for Charging Party’s brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based on my review and consideration of the entire record.
5 The HR manager position has experienced a great deal of turnover. Prior to Milagros, Lori Ulrich
was the HR manager; prior to Ulrich, Linda Villareal was the HR manager.
6 Davies is also the Union’s recording secretary.
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Business Representative Jaime Olvera was assigned responsibility for the bargaining unit at J&J
on April 25, 2014.
The Union’s offices, in Pasco, Washington, are about 65 miles from J&J’s Weston
facility.5
C. Access to the Plant
The plant is secure, and employees enter it using individual passcodes. Visitors, including
union representatives, enter the administrative waiting area, sign in as guests, and receive 10
temporary passcodes and badges. Any of the administrative staff in the front office can issue
visitors’ badges. (Tr. 302.)
The collective-bargaining agreement also has a provision addressing visitation. Article
11.3 provides:15
The Company shall admit to the plant during working hours any authorized
representative(s) of the Union for the purpose of ascertaining whether or not this
Agreement is being observed, and to assist in adjusting grievances. Such Union
representatives shall contact the Plant Manager or his designated representative prior to 20
entry. The parties also agree that while on the Company’s premises, Union
Representatives agree to comply with J&J Snack Foods Handhelds Corp.’s reasonable
safety and security policies and practices. Conferences or meetings between union
representatives and employee(s) shall be conducted in non-working areas and on non-
working time so that there shall be no interference with or interruption of normal 25
operating conditions.
Davies generally visited the plant once a week for about 2–6 hours per visit. His visits
were this long to maximize the 65-mile drive from his office to the plant, and also to visit with
employees on each of the shifts. His practice upon arrival was to enter the administrative 30
waiting area, announce his presence, sign the visitor sign-in sheet, and obtain a visitor’s badge.
Davies usually visited the lunchroom, the hallway where the Union bulletin board was located,
the hallway where the schedule was posted, outside the plant where employees smoked, the
restroom, training room, and laundry room.7 (Tr. 76–79.) Employee Carmen Ruiz Aguirre, one
of six shop stewards at J&J, worked intermittently in the laundry room, which is located next to 35
the Union bulletin board. (Tr. 63, 146.) At no time has any Union representative been permitted
in production areas without management’s supervision.
D. History of Theft and Resale of Product
40
Products that contain protein are subject to inspection by the United States Department of
Agriculture (USDA). (Tr. 368.) About 12 or 13 years back, when ConAgra owned the plant,
they had a policy of selling B-grade products, which did not meet specifications in terms of
weight or size, to employees. (Tr. 462.) The product was placed in blue garbage bags and sold

7 Olvera accessed the plant in the same manner as Davies.
JD(SF)–07–15
5
to employees for $1.00 apiece. An inspector from the USDA saw some of the product being re-
sold in a store. As a result, ConAgra got a non-compliance report for permitting unlabeled
products to leave the plant for re-sale, in violation of USDA regulations.
E. The Quality Assurance Lab and Food Samples for Employees5
Certain products are tested for quality assurance in the Respondent’s quality assurance
(QA) lab. Products come from two production lines, line 1 and line 2. Of the items produced on
line 1, about 60–70 percent are simply thawed and eaten, with no requirement for the consumer
to cook the items. The rest of the items from line 1 are considered baked items, and they are 10
microwaved in a pre-packaged sleeve. The QA employees are able to inspect the baked items
from line 1 by microwaving a unit to ensure the seams don’t pop open and the color and integrity
of the product are intact. After testing, samples from line 1 are put into pans designated as
inedible, and then dumped into a hopper for collection by a local hog farmer. Line 2, the fry
line, produces the pizza pockets. Until roughly 1-1/2 years prior to the hearing, Line 2 also 15
produced fruit turnovers. It operates two or three times per week.8 Each hour, a carton of eight
units of the products from line 2 are taken to the QA lab and deep fried to ensure the seams don’t
pop open and the product’s color and quality is up to par. (Tr. 446–447, 455–456, 470.)
With the exception of a 2–3 month period in early 2012, samples of the pizza pockets 20
tested in the QA lab were placed on trays in the employee cafeteria about once an hour on days
the production line was running. The samples, consisting of about 20–40 pizza pockets, were
unpackaged, and available to employees on a first-come, first-serve basis. (Tr. 293–295.) The
pizza pockets are sufficiently large to serve as a meal, and many employees relied on the samples
for lunch. (Tr. 22–23, 293, 445.) If there was leftover product, employees could, upon request, 25
take the cooked food home at the end of their shift. When this occurred, the food was placed in a
carton with the requesting employee’s name on it. (Tr. 46–47; Humble 447.)
Stephen McGuire has worked for J&J as an inventory specialist since 2011, and has
served as a Union steward since 2006.9 According to McGuire, frozen foods packaged in 30
microwaveable bags were placed on trays in a refrigerator-freezer for employees to take at the
end of the shift. (Tr. 22, 57.) The frozen food was also on a first-come, first-serve basis and
employees could cook this food in the microwave in the cafeteria. The frozen food was
potentially damaged, or was a partial case at the end of a production run. This occurred
whenever the production line was running. (Tr. 40–42.) Adams, Ligon, and Humble recalled 35
that employees were only provided with the cooked food from line 2 that was tested in the QA
lab, and were not provided with frozen food or other food from line 1. (Tr. 280–281, 294–295.
375–376, 455.)
Garbage product refers to food that has been potentially contaminated on the floor. 40
According to McGuire, with permission from the on-shift supervisor, employees could
sometimes take garbage product. (Tr. 24.) Humble said garbage product was inedible, and
would never be given to employees to consume. (Tr. 456.)

8 In the past, line 2 was run every day, producing pizza pockets some days and fruit turnovers on
others. Test products were provided to employees every day. (Tr. 470.)
9 McGuire reports to Bob Rich, the warehouse manager.
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Some product samples from each set of samples tested are labeled and retained in the QA
freezer for a period of 12 months for comparison purposes in the event of a customer complaint.
Retained samples were disappearing from the QA freezer in early 2012. In response, in February
2012, Rob Tiburino, the plant manager at the time, held a town hall meeting. He announced that 5
because QA samples were taken from the freezer, he was putting new locks on the QA lab, and
no product was to leave the plant. (R Exh. 11; Tr. 449–450.) He also temporarily discontinued
the practice of permitting employees to eat the cooked food samples from the QA lab. (Tr. 28,
45, 48.) After a couple of months, the cooked food samples were again provided to employees.10
(Tr. 48, 450–451.) 10
As of April 2014, the quality assurance lab retains one unit, and the rest goes to the
hog farmer in the same manner as items from the line 1. (Tr. 443–445.)
F. March 2014 Meetings and Events15
1. Revision of employee handbook
During the beginning of March, Davies and Schofield worked together successfully to
revise the employee handbook. (Tr. 157–158; Jt. Exh. 7; GC Exh. 9.) 20
2. Grievance regarding terminations for alleged theft of product
J&J terminated employees Carlos Angel, Misael Vega, and Antonio Garcia for taking
product from the production line. On January 31, Davies filed a step-2 grievance over these 25
terminations. (R Exh. 6; Tr. 466.) The grievance was not resolved at step 2, so a step-3 meeting
occurred on March 13. (Tr. 98, 100). Ligon, Humble, and Adams were present for J&J. Hawks
and Davies were present for the Union. Police Officer Parker also was present at the beginning
of the meeting. McCullough attended and took notes.11 (Tr. 312.) Officer Parker walked them
through what had happened with the three individuals and they viewed surveillance video30
documenting the incident.
After Officer Parker left, they discussed the grievance. Davies stated his belief the
employees had permission to take product home, and were acting in accordance with an
established practice. He said he saw employees take product every time he visited the plant. (Tr. 35
98, 100.) The Union presented a document signed by 68 employees, stating:
We, the undersigned, state that it has been the general practice in Weston since J&J
purchased the plant for employees to take product home. At times there has been a
process requiring a signature or written permission. At other times there has been no 40
signature required. Before our three coworkers were fired, no official policy or detailed
expectations had ever been made clear or publicized. Nearly all employees have done this

10 According to Humble, the practice of permitting employees to take food home in boxes stopped;
According to McGuire it continued. (Tr. 48, 450–451.)
11 McCullough’s note-taking practice was to make very short notes during the meeting and then later
type them up, usually the next day, and fill in the blanks. (337, 342.)
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at one time or another, and many have done so frequently. Supervisors have been aware
of this practice, and some supervisors have also openly taken product home.
(R Exh. 7; Tr. 98.) Hawks asked Schofield if she had disclosed the practice that had existed, and
mentioned that painting a false picture to the prosecutor was a felony. (Tr. 237–238.) 5
Though the grievance did not involve re-sale of any J&J product, the topic came up.
According to McCullough, Ligon, and Humble, Davies said he knew for a fact supervisors were
taking product and selling it. (Tr. 313, 370, 451.) According to Davies, he said he had heard
rumors that in the past employees and supervisors had taken product from the plant and re-sold10
it, but he did not have direct knowledge. (Tr. 103, 106.) Ligon asked for names of these
individuals, and Davies asked for the name of the individual who reported the alleged theft. (Tr.
370.) Neither Davies nor Ligon complied with the other’s request. McCullough said there were
two reasons management would not tell Davies who reported the alleged theft: they had it on
video, and the Union was not willing to give the name of the supervisor taking and re-selling 15
product.12 (Tr. 313–314.) According to McCullough and Ligon, Davies refused to provide the
information, stating the individuals were bargaining unit members and friends, and he didn’t
want to throw anybody under the bus. Davies claimed he did not comply with the requested
information because he did not have direct knowledge of anyone re-selling product. He said that
if he did he did have direct knowledge, he may or may not tell Ligon about it, because he had a 20
relationship with individuals and may not want to throw them under the bus. (Tr. 106.) Davies
did not explicitly say that he had only heard information about re-selling product as a rumor, nor
did he mention it occurred before J&J owned the plant. According to Ligon, after the meeting,
Hawks told Ligon he was going to have Davies turn the names of the individuals over to the
district attorney. (Tr. 372–374.) 25
Ligon decided to terminate the three employees, based on the surveillance video and
Officer Parker’s investigation. (Tr. 369.) The prosecutor declined to charge the employees with
theft.
30
Because of the comments made during the meeting about re-selling product, Humble
talked to Ligon afterward and told him there might be an issue with the USDA. Humble
contacted the USDA inspector, and the inspector told Humble that because there had been a
violation when ConAgra owned the plant, another violation could cause J&J to lose its license to
manufacture USDA products. (Tr. 374–375.). Humble told Ligon that J&J could get into a lot 35
of trouble if this happened again, and showed him a regulation stating that two violations for
having unlabeled food re-sold could result in the Secretary of Agriculture removing the plant’s
grant of inspection, which would render the plant unable to produce meat. Humble asked Steven
Hilberg, the inspector in charge of J&J, and was told it did not matter that the first violation
occurred when the plant was owned by ConAgra. (Tr. 451–453.) 40
As discussed directly below, this prompted Ligon to stop the practice of providing QA
samples from the line to employees in the cafeteria.

12 The employee was a bargaining-unit member and McCullough thought he would have been willing
to come forward. (Tr. 315.) Ligon thought there may have been discussion about the employee wanting
to remain anonymous, but was not sure. (Tr. 371.)
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2. Cessation of food product samples
On March 14, J&J stopped placing QA sample food in the cafeteria. (Tr. 129.) Nobody
at J&J notified the Union or bargained with the Union beforehand. The Union filed a grievance 5
the same day.
3. Letter from Davies to Ligon and ensuing correspondence
On March 17, Davies sent Ligon a letter stating during a meeting with bargaining unit 10
members the previous day, some morale issues were raised. Davies stated that Ligon never
introduced himself to the employees and that the Union “demands an audience with you in which
all hourly employees and I can participate.” The letter outlined the following topics the
employees wanted to discuss:
15
1) Unfounded threats of discharge, deportation, and disqualification by supervisors
2) Screaming and other disrespectful and intimidating treatment of employees
3) The invention and unequal enforcement of nonexistent rules and policies
4) A general decline of respect and dignity in the workplace
5) Rampant favoritism, despite the seniority system enshrined in the labor agreement20
6) Increased line speed and decreased staffing beyond the point at which worker
safety can be ensured.
(R Exh. 8.)
25
Attorney Fred D’Angelo responded to Davies' letter on March 18, stating that there
would be no mass meeting with the employees, plant manager, and union officials. He directed
Davies to address any issues with Schofield, and Ligon would sit in if he deemed it appropriate.
D’Angelo further stated that Schofield had already addressed the topics Davies raised. Changing
topics, D’Angelo next discussed employees taking product out of the plant and selling it, and 30
said he was appalled Davies had not brought this to the Company’s attention. D’Angelo
instructed Davies to provide the names of the employees he had observed taking product from
the plant and the individuals or institutions to which the employees were selling the product. He
concluded by stating that the Company would not tolerate theft, and inviting Davies to address
any questions to him directly. (R Exh. 9.)35
Davies replied on March 19, stating that they would address any issues through the
grievance process. He stated he was not aware of any theft from the plant, but instead was aware
of an ongoing practice of employees taking product home. Davies opined that the practice was
so widespread, he never made an attempt to recall or not who took product from the plant or 40
consumed product in the plant. He stated he had heard different stories about employees re-
selling product, but did not have any direct knowledge. He noted that the various versions of
events occurred under a former owner, and the employees would know the facts better. Davies
agreed that theft should not be tolerated, but stated that theft had not occurred. He stated that if
the three employees were returned to work, the misunderstanding could be resolved by 45
promulgating a clear rule and implementing it going forward. Davies concluded that he would
await the plant manager’s step-3 response and weigh the options. (R Exh. 9.)
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On March 20, Schofield sent Davies a letter regarding the March 14 grievance over the
discontinuation of placing QA sample food in the lunchroom. (CP Exh. 1.) She reiterated
comments Davies made at the March 13 meeting, stating that Davies said he saw employees steal
product every time he is in the plant and that he knew of employees selling stolen product 5
outside the plant. She said that his refusal to provide names made him an accomplice. She
informed him that, because of USDA regulations prohibiting the re-selling of product, the
Company could lose its grant of inspection if this practice continued. She continued, stating,
“Therefore, the moment you notified us that our product was leaving the premises without
permission and the proper USDA inspection, we had to stop providing the QA samples to the 10
employees.” She denied the grievance, asserting that no violations of the contract had been
committed.
G. Request for Information about Unit Members
15
Davies sent Schofield an email the morning of March 19, asking for an updated list of bid
holders and qualifications, including seniority and addresses. He copied Maria Garcia, human
resources generalist, on the email. He also requested the shift preferences for “bracket 6”
employees, who were new hires. Under article 10.6 of the collective-bargaining agreement, they
could express shift preferences annually in January, and shifts were awarded by seniority. In 20
addition, he asked for the line preferences of “bracket 5” employees, i.e. packer/general laborers.
(Tr. 113–114; Jt. Exh. 10; Jt. Exh. 2, p. 10.) Schofield responded by email that afternoon,
informing Davies she was providing the employees the following attached form:
To all Employee’s (sic):25
The Union is requesting your up-to-date personal information. In the interest of your
privacy we would like you to fill out what you would like to share with Teamsters Local
# 839 and Mr. Rich Davies. If you do not want your information shared, please print
your name and check the box. Please also take this opportunity to inform us of your shift 30
preference. Your preference is no guarantee of that shift. Shifts will be awarded per 10.6.
Please Print
Name: I DO NOT WISH TO SHARE MY INFORMATION35
Street Address:
City:
40
State:
Zip Code:
Home Phone:45
Cell Phone:
Message:
50
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Shift Preference DAY SWING 3rd
Schofield told Davies she would forward him the information she received from employees. She
also would provide an updated list of bid holders and qualifications along with a seniority list the
following day.13 Davies perceived that the Company was trying to turn members against the 5
Union by asking members permission to release information to the Union instead of giving the
information directly to the Union. (Tr. 118–119.)
The morning of March 20, Davies sent Garcia an email stating that Schofield had sent
him the addresses, phone numbers, qualifications, bid awards, and seniority list for all 10
employees, and stated the Union was entitled to that information to police the agreement. Garcia
responded that she gave Schofield the information to send to him, but expressed concern about
sharing employees’ personal data with the Union. She stated that Davies gets the same
information on the Union’s sign-up sheet when employees become members of the Union, and
suggested that someone keep a spreadsheet with this information. Garcia expressed that she 15
assures employees their personal information is kept private, and said she was putting herself “in
a spot” sharing it with Davies without their personal approval. Davies replied, “Listen. We have
a labor agreement, and are covered by laws that make us entitled to the information. Any time I
don’t get it after requesting it we will file charged (sic) with the Board.” (R Exh. 10.)
20
The email exchanges continued, and on March 21, Davies informed Garcia he would be
investigating unfair labor practice charges about the releases sent to employees. Garcia
responded that she was confused by his attitude, asked if everything was an unfair labor practice
to him, and stated that she was simply trying to ensure he had the best information possible.
Davies replied that there was more going on than Garcia understood, and said he would deal with 25
those above her. He again expressed that the Union was entitled to the information, and that the
release sent to employees was an attempt to turn the members against the Union.
Schofield responded on March 24, asking Davies to show her where in the contract it said
he had the right to request information about members from the employer rather than from the 30
employees directly. She said the Company does not release information to anyone without the
employees’ authorization, including the Union. She echoed Garcia’s statement that Davies
receives this information directly from the members and that it was his responsibility to update it.
Schofield said that, on the advice of J&J’s attorney, she sent a memo to employees asking
permission to provide the Union with their phone numbers. She invited Davies to show her 35
where in the contract it stated she was required to do more. Finally, she stated that this was not
an attempt to turn members against the Union, and opined that this was another example of her
trying to foster a positive working relationship and Davies replying with animosity and threats.
(Jt. Exh. 6.)
40
H. April Grievance Meetings
On April 10, Davies met with Schofield and Sandy McCullough for a step-2 grievance
meeting regarding six grievances.14 Davies took notes during the meeting, and McCullough

13 Most employees permitted the information elicited to be shared, but some did not. (Jt. Exh. 6.)
14 McCulough testified the meeting was to discuss eight grievances and her notes say seven. (Tr. 315;
R Exh. 17.) I rely on Davies’ contemporaneous notes that reflect discussion of six grievances.
JD(SF)–07–15
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wrote a summary of the meeting afterward. (GC Exh. 3; R Exh. 17.) Schofield said the Union
knew the Company’s position, so she was not certain what they were doing there. (Tr. 316.)
They resolved the first two grievances.15 The third grievance involved ingredient-maker Angel
Urincho, and it was written in Spanish. Davies questioned the accuracy of the translation.
Schofield said she had checked the translation with somebody in her office and a couple of 5
supervisors, and she was confident it was correct. Davies said he was qualified too because he
had studied Spanish at college, worked as an interpreter, and had published several articles in
Spanish. He said he was not going to discuss the Spanish translation issue with someone who
was monolingual. (Tr. 81–82, 141, 172, 182.)
10
According to McCullough, Davies “attacked” Schofield, asked her why she had to be so
ugly and mean, told her she did not know how to do her job, and called her a “monolingual idiot”
or something to that effect. At some point, Davies started to stand up, and was flailing his arms.
After a while, Schofield stuck up her hand and said, “That’s enough,” and Davies calmed down.
(Tr. 316–317; R Exh. 17.) 15
At one point Schofield stated that the Company was just trying to keep its doors open,
which to Davies implied that the Union was putting the plant in jeopardy by enforcing the
agreement and filing grievances. Davies testified, “I said something to the effect that I would
rather see the plant—let's see here . . . .”16 (Tr. 142.) He then elaborated about how he told her 20
employees were not very happy and they felt they did not know Schofield or how to reach her.
Davies also said it was not good to have an anti-union anti-employee employer. (Tr. 143.) At
one point in the meeting, Schofield said she was going to contact Harry Fronjian, the Company’s
corporate human resources official. Davies responded, “That’s fine, I know Harry, and be sure
to tell him what an ass Fred D’Angelo was when he called me regarding the selection of 25
arbitrators for this arbitration.” (Tr. 155, 320.) Davies believed D’Angelo, an attorney
representing J&J, was trying to get Davies to drop a grievance. During the call Davies
referenced, D’Angelo told him, “You obviously don’t do relationships,” and hung up the phone
on him. (Tr. 156–157.)
30
In McCullough’s experience dealing with Davies over the years, it was uncharacteristic
of him to behave the way he did during the meeting. (Tr. 345–346.) McCullough did not see
Davies threaten Schofield with violence during the meeting or at any point. (Tr. 335–336.)
McCullough wrote a summary of the meeting a day or two after it occurred. She wrote 35
that Davies repeatedly told Schofield she was unqualified to do her job, commented about the
fact that she did not speak Spanish, and talked about his degrees and how much he knew. She
recalled, “Without calling her stupid he called her stupid and unable to perform her job.”
McCullough noted Davies’ comments about the employees not knowing Schofield, and voiced
her disagreement. She also expressed her opinion, by way of some examples, that Davies acted 40
in an unconstructive manner during the grievance discussions, and commented that he didn’t care

15 McCullough recalled they did not resolve any grievances, but Davies’ contemporaneous notes
reflect otherwise. (Tr. 316, 334.)
16 Davies denied making comments about seeing the plant close forever. As discussed below, I find he
made such a comment. (Tr. 83.)
JD(SF)–07–15
12
if he got the place shut down. She concluded her comments by opining that Davies was out of
control and was filing grievances just to harass the Company. (R Exh. 17.)
On April 15, D’Angelo sent Davies a letter advising him that his conduct toward
Schofield on April 10 would not be tolerated. The letter referenced Davies calling Schofield 5
names, calling her a liar, and stating that he would rather see the plant close forever. D’Angelo
warned that further mistreatment of management would not be tolerated, and would result in his
removal from the facility. (Jt. Exh. 5.) Hawks received a copy of the letter as an email
attachment. This was the first time he had heard a complaint about Davies’ behavior. (Tr. 187–
188.) 10
On April 22, 2014, there was a step-3 meeting over the alleged unilateral change to
product sampling. Schofield, McCullough, and Ligon were present for management; Hawks and
Davies were present for the Union. Davies took notes. Ligon reminded Hawks that he had
agreed to tell the district attorney what he knew about product being re-sold. Hawks stated he 15
said no such thing, and that the Union provided the prosecutor with the same information it
provided to the Company. He told Ligon not to twist his words, and reminded him, “We do this
for a living.” Hawks asked Davies where Ligon was from, and Davies responded that Ligon was
part of the Hostess debacle.17 According to Davies’ notes, Hawks then said:
20
In my experience, there’s two types of management: those who can manage and those
who can’t. The first kind manages and usually has good relations with us. The second
kind resorts to intimidation, coercion, and abuse, which typically extends toward their
wives, families, and dogs too. Which kind are you? 18
25
(R Exh. 18.) Ligon responded, “Thanks for the lesson. Have you ever run a plant?” The
meeting concluded without the parties discussing the grievance.
At this point Ligon noticed a change in the relationship between the Company and the
Union. (Tr. 378.) 30
I. Changes to Davies’ Access and Ban from Facility
On April 22, Davies visited the facility. After he had been in the plant for awhile, he
received an email from Ligon with a letter attached. In the letter, Ligon stated that, due to 35
Davies’ violation of the collective-bargaining agreement, it was necessary to clarify the
procedures for his future visits to the plant. Ligon instructed Davies to provide him with 24
hours advanced notice of his arrival and the purpose of his visit. Ligon further instructed Davies
to ask for him or Schofield when he arrived, and they would sign him into the plant. He further
instructed Davies to limit his visits to the plant’s administrative hours. Davies was told to 40
confine his visits to the cafeteria area, and Ligon instructed that all other areas were considered
work areas, namely the laundry room, training room, and the hallway where employees clock in

17 Ligon worked at Hostess prior to J&J. There were well-documented and long-term labor tensions
and Hostess ultimately went into bankruptcy. (Tr. 406.)
18 This is consistent with Ligon’s recollection of what Hawks said. (Tr. 384.) Hawks recalled saying
something similar to this, but not these exact words. (Tr. 215–216.)
JD(SF)–07–15
13
and out. Finally, Ligon asked Davies to limit the duration of his visits to a respectable amount of
time, pointing out that the cafeteria is not to be used as a union hall. (Jt. Exh. 4.) Davies did not
receive advance notification about these changes and the Company did not bargain over the
changes. (Tr. 79, 190–191, 396–397.)
5
Ligon and Davies saw each other later that day. Davies reminded Ligon that they had a
longstanding practice of visitation, and Ligon said, “My comment is good.” (Tr. 389.)19 Davies
told Ligon he would be hearing from the Union’s attorney, and said he would enter the plant
whenever he chose. Ligon responded that he would have Davies removed. (Tr. 388–389.)
According to Davies, he asked Ligon why he had to be so unpleasant, and Ligon responded,10
“You really tore that little girl’s ass.” (Tr. 72–73.) Ligon recalled saying, “You really dressed
that little girl down.” (Tr. 389.) When Davies asked who Ligon was referring to, he replied
Schofield. Davies said Schofield was lying, and Ligon responded, “Everybody is a liar but you
Rich.” (Tr. 73, 390.) Davies then said, “What an Ass.” (Tr. 73.) Davies left the plant, called his
wife, and at her suggestion went to Dairy Queen to have a Blizzard. He also called Hawks and 15
reported what had occurred. (Tr. 75–76.)
At 3:19 p.m. on April 23, Attorney James Sullivan sent Hawks an email instructing him
to provide any information the Union had regarding employees taking unauthorized product from
the plant and re-selling it. (R Exh. 14.) Hawks did not have any information, so he did not 20
respond. (Tr. 223.)

At 6:03 p.m. the same day, Davies sent Ligon an email and attached a letter protesting
and disagreeing with the change in Davies’ access to the plant. Davies noted that he entered the
plant the previous day in the same manner he had entered the plant hundreds of times in the past. 25
He pointed out that there was no requirement in the collective-bargaining agreement for 24-
hours’ advance notice, and that the term “working hours” had previously been interpreted as any
time there were members working at the plant. Davies further stated that union representatives
have always met with employees in the training room, hallways, and laundry room. Finally, he
noted that the collective-bargaining agreement does not specify the length of the Union’s visits, 30
and the Union’s practice has been to conduct relatively lengthy visits that straddle shifts. (GC
Exh. 2.)
At 7:10 p.m., Sullivan sent an email to Hawks regarding Davies’ actions the previous
day. Sullivan reported that Davies called Schofield a liar, and got into a loud shouting match 35
with Ligon, chased after him, and called him an ass. The email further stated that Davies said he
could enter the plant whenever he wanted, with no notice to the Company. Sullivan told Hawks
that Davies was no longer permitted to visit the plant, and informed him that any attempt would
be considered trespass. He instructed Hawks to appoint another representative and to respond
directly to him. (GC Exh. 4.) 40
On April 24, Gerard Law, J&J’s senior vice president, sent a letter to all employees
telling them that the Company had informed Davies he was no longer permitted on the premises.
Schofield and Garcia placed a copy of the letter in each employee’s mailbox. The letter stated
that any attempt by Davies to visit the plant would be considered trespass. Law further conveyed 45

19 The transcript incorrectly uses “as” instead of “is” in this sentence.
JD(SF)–07–15
14
that Davies continued to treat administrative staff in an unprofessional manner, refused to
address Schofield by her name, and referred to her as a liar and idiot. He then discussed the
alleged theft, and asserted that Davies was concealing information. Law told the employees that,
on March 13,when Davies was told that employee theft could cause J&J to lose its license and
close down, Davies said he would “’rather see this place close forever’ than cooperate with the 5
company on its efforts to run the plant safely and efficiently because those efforts were making
employees ‘unhappy.’” (Emphasis in original.) He added that Davies said it was “better to have
employees that are out of work than employees who are ‘unhappy’” (Emphasis in original.) Law
then stated that both Davies and Hawks, following a warning, continued to engage in
“unprofessional, shocking, and disgraceful behavior during a grievance meeting” the preceding 10
Tuesday. The letter stated that the Company asked the Union to appoint a different individual to
represent the employees. Law told the employees that whether the Union granted the request
was up to them because only the employees and their bargaining representative could decide who
will bargain on their behalf. He stated, nonetheless, that the Company had the right to refuse to
meet and bargain with an individual who behaves as Davies did by his continued insults, 15
obscenities, and defamatory statements. Law expressed the Company’s viewpoint that Davies’
behavior had created so much ill will that good faith bargaining had become impossible with him
as the employees’ spokesman. The letter concluded by assuring employees they would not want
to be treated the same way Davies had treated Schofield, Ligon, and other members of the
administration, and thanking them for their service, and instructing them to contact HR with any 20
questions. (Jt. Exh. 11.)
On April 25, after speaking with Davies, Hawks responded to Sullivan’s April 23 email.
He denied the Company’s factual assertions and rejected the position that Davies was not fit to
serve as the bargaining unit’s representative. Hawks stated that Davies remained the designated 25
representative for the bargaining unit employees at J&J, and that the Union would not tolerate
the Company’s interference with the Union’s internal affairs. Hawks notified Sullivan that, in
addition to Davies, business representatives Jaime Olvera and Russell Shjerven, as well as
himself, would be representing the bargaining unit and making periodic trips to J&J. Hawks
asserted that Ligon and Schofield were hostile and aggressive toward him and Davies at the 30
April 22 meeting, and stated they must cease and desist from engaging in hostile communication
with the Union. He instructed Sullivan to direct any further communication to John Lee, the
Union’s attorney. (GC Exh. 6.)
On April 30, Olvera posted a notice from Davies on the Union bulletin board. It 35
informed the employees that management’s statements about his behavior were untrue, and that
the Union had responded by filing charges against management alleging labor law violations.
The notice informed employees that Davies was still their business representative, and informed
them that management lacks the right to choose their representative. He concluded by asking the
employees to contact him or a shop steward with any questions. (GC Exh. 7.) 40
Sullivan wrote a grievance letter to Hawks on May 6, 2014, asserting that Davies had
violated article 2 of the collective-bargaining agreement by engaging in unprofessional, obscene,
and harassing conduct toward management. The grievance further alleged that Davies refused to
inform management of the names of employees who had stolen product from the plant and re-45
sold it. He requested that the grievance be expedited to arbitration. (R Exh. 13.)
JD(SF)–07–15
15
J. June 5 Meeting
On June 5, there was a grievance meeting regarding employee Tom DeLay.20 Hawks and
Olvera were present for the Union. Ligon, McCullough and Adams were present for the
Company. (R Exh. 16.) Olvera, at one point, told Ligon that the plant wasn’t a plantation, Ligon5
wasn’t in Florida anymore, and things were different here. (Tr. 269, 288.) Hawks brought up
Ligon’s history at Hostess, and Ligon said he was “fixin” to stop the meeting. Hawks proceeded
to make fun of the term “fixin” by rhetorically and repeatedly asking what it meant.
III. DECISION AND ANALYSIS10
A. Credibility Legal Standards
A credibility determination may rest on various factors, including “the context of the
witness' testimony, the witness' demeanor, the weight of the respective evidence, established or 15
admitted facts, inherent probabilities and reasonable inferences that may be drawn from the
record as a whole.” Hills & Dales General Hospital, 360 NLRB No. 70, slip op at 7 (2014),
citing Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001). In making credibility resolutions, it is well established that the trier of fact may
believe some, but not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 20
749 (2d Cir. 1950).
Where there is inconsistent evidence on a relevant point and resolution turns on
credibility, my credibility findings are incorporated in context into my legal analysis below.
25
B. Allegations Regarding Davies’ Access to Facility
Complaint paragraph 6(a) alleges that Law told employees that an authorized
representative of the Union was no longer permitted on its premises pursuant to a union access
provision in the collective-bargaining agreement, and threatened employees that it would 30
consider any attempt by the representative to enter the premises to be trespass, in violation of
Section 8(a)(1) of the Act. Paragraph 8(b) asserts the related allegation that the Respondent,
since about April 23, 2014, has failed and refused to recognize Davies as the Union’s
representative for purposes of representing bargaining unit employees, in violation of Section
8(a)(5) and (1). Finally, paragraph 9(c) alleges that on about April 23, 2014, the Respondent 35
banned Davies from the facility, in violation of Section 8(a)(5) and (1). Because these
allegations turn on the same set of facts and are inextricably intertwined, they are analyzed
together.
In United Parcel Service, 330 NLRB 1020 fn.1 (2000), the Board stated:40
It is well settled that the Act bestows on employees, unions, and employers alike the right
to select representatives of their choice for collective bargaining and grievance

20 This meeting occurred after the time period relevant to the allegations before me. The substance of
the meeting is not material, but I have included comments made at the meeting because they go to
credibility, as detailed infra.
JD(SF)–07–15
16
adjustment and imposes a concomitant obligation to deal with each other's chosen
representatives absent extraordinary circumstances.
See also Battles Transportation, Inc., 362 NLRB No. 17 fn. 3 (2015). “The selection of an
employee's representative belongs to the employee and the union, in the absence of extenuating 5
circumstances…” Barnard College., 340 NLRB 934, 935 (2003), citing In re Anheuser-Busch,
Inc., 337 NLRB 3 (2001), enfd. 338 F.3d 267 (4th Cir. 2003), cert. denied 541 U.S. 973 (2004),
and Pac. Gas & Electric Co., 253 NLRB 1143 (1981). “Inherent in the very nature of the rights
guaranteed by Section 7 is the concomitant right of full freedom from employer intermeddling”
in this choice. Dal-Tex Optical Co., 130 NLRB 1313, 1319 (1961). “Employees have as clear a 10
right to organize and select their representatives for lawful purposes as the employer has to
organize its business and select its own officers and agents.” Id.
Threats to exclude union agents from the workplace have been held to violate Section
8(a)(1). Swardson Painting Co., 340 NLRB 179 (2003). It follows, of course, that actual 15
exclusion of a union representative may also violate the Act. In Frontier Hotel & Casino, 309
NLRB 761 (1992) enfd. in relevant part NLRB v. Unbelievable, Inc., 71 F.3d 1434, 1438 (9th
Cir. 1995), the Board affirmed the ALJ’s finding that ejection of union representatives from the
hotel’s premises interfered with union-related communications and coerced employees in
violation of Section 8(a)(1) of the Act. Id. at 766; see also ABF Freight System, Inc., 325 NLRB 20
546, 562 (1998).
In the present case, Davies was not only expelled from the premises, his expulsion was
announced to all employees through dissemination of a letter from a high-ranking official.
Moreover, employees were told the Company viewed any attempts by Davies to enter the facility 25
as unlawful trespass. The impact on Section 7 rights was magnified by this public and, as
discussed below, disparaging means of informing employees that they were being denied access
to their representative.
The letter, admittedly drafted after consultation with legal counsel, sets forth a reason for 30
Davies’ expulsion, which dovetails with the defense the Respondent argues here. Law’s letter
states, in relevant part, “Unfortunately, at this stage, Mr. Davies’ continued insults, obscenities,
and defamatory statements have Sage Development Co created so much ill will in the
relationship between the parties that good faith bargaining is now impossible with him acting as
your spokesman.” (Jt. Exh. 11.)35
The Board has held that an employer may not refuse access to a union representative
absent “persuasive evidence that the presence of the particular individual would create ill will
and make good-faith bargaining impossible.” KDEN Broadcasting Co., 225 NLRB 25, 35
(1976); Pan American Grain Co., 343 NLRB 205, 206–207 (2004)(Death threat against 40
company president). The inquiry is fact-intensive, and, because it is a defense, the employer
bears the burden of persuasion. Marydale Products Co., 133 NLRB 1232 (1961); Sage
Development Co., 301 NLRB 1173, 1189 (1991)(It is well-established that burden of proving
affirmative defense rests with the party asserting it).
45
In Sahara Datsun, 278 NLRB 1044 (1986), the Board found that refusal to deal with a
particular individual may be justified when there was an unprovoked physical assault and
JD(SF)–07–15
17
unsubstantiated allegations to the affect that the company's owners had committed various
crimes. By contrast, in Long Island Jewish Medical Center, 296 NLRB 51, 71 (1989), the Board
held that the employer violated the Act by barring a union representative from its premises after
he lightly pushed a female manager, called her an “asshole” repeatedly, and blocked her from
getting out from behind her desk for a short period. Likewise, in Victoria Packing Corp., 332 5
NLRB 597 (2000), a union representative engaged in a shouting match with the company's
president, then “got up very close to [his] face, and while pointing his finger, yelled ‘I'm going to
get you and you[r] fucking company.” Id. at 599. The administrative law judge, who was upheld
unanimously by the Board, stated that the conduct was not “so egregious and beyond the pale as
to make the bargaining process itself untenable,” and stated that “[f]or better or worse, the 10
obligation to bargain also imposes the obligation to thicken one's skin and to carry on even in the
face of . . . rude and unacceptable behavior.” Id. at 600.
The first conduct alleged by the Respondent to justify Davies’ removal occurred during
the April 10 grievance meeting detailed above. There are some credibility disputes regarding 15
what, precisely, Davies said. I note that even if I credited the Respondent’s version of events, I
would not find Davies’ conduct egregious enough to justify his removal. Nonetheless, I will turn
to the disputed facts and resolve them. Much was made of Davies allegedly referring to
Schofield as a “monolingual idiot.” Davies denied making this precise comment. I credit Davies
on this point for a couple of reasons. First, Schofield did not testify, and I therefore draw an 20
inference that her testimony would not be favorable to the Respondent.21 The Respondent relies
on the only other person who was present at the meeting, McCullough. Her summary of the
meeting, however, does not contain this term, and states, “Without calling her stupid he called
her stupid and unable to perform her job.” This implies he did not use the word “idiot,” an
express statement of stupidity. She also did not recall Davies’ precise words when she testified.2225
The summary was written at a time when the events of the meeting were fresher in
McCullough’s mind, and I therefore find them more reliable than her testimony. McCullough’s
testimony was often confused with regard to the various meetings. (Tr. 321–325.) As to this
meeting, her testimony that she thought they discussed Angel Urincho’s grievance first is
contradicted by Davies’ contemporaneous notes, which I find reliable. For all of these reasons, I 30
decline to find that Davies referred to Schofield as a “monolingual idiot.”
Davies admittedly said he may have referred to Schofield as monolingual, and I do not
doubt that he made comments about his superior Spanish skills. Likewise, given the context was
a grievance meeting, I have little doubt that Davies made comments calling into question 35
Schofield’s competency, asserting his own superiority, and telling her she was incorrect on
various points. McCullough’s unrefuted testimony is that this behavior was uncharacteristic of
Davies, and it stopped when Schofield put her hand up, leading Davies to realize he had gone too
far.

21 The Board has agreed that “when a party fails to call a witness who may reasonably be assumed to
be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on
which the witness is likely to have knowledge.” International Automated Machines, 285 NLRB 1122,
1123 (1987), enfd. 861 F.2d (6th Cir. 1988). Though Schofield was no longer employed at the time of the
hearing, there is no evidence to show what, if any, attempts were made to subpoena her, or whether
securing her testimony would have presented logistical difficulties.
22 Her testimony was Davies said, “‘You are absolutely a monolingual idiot’ or something to that
effect.” (Tr. 317.)
JD(SF)–07–15
18
The Respondent asserts that Davies asked Schofield why she had to be so ugly and why
she had to be so mean. This is based on McCullough’s testimony about the meeting. These
alleged comments are absent from McCullough’s more contemporaneous summary about the
meeting. The same holds true for McCullough’s testimony that Davies called Schofield a liar. 5
Her notes do not reflect such a comment, and her testimony was not convincing. The relevant
exchange went as follows:
Q. Did he [Davies] ever call her a liar?
A. Yes, repeatedly. You don't know what you're talking about. You—what you're 10
saying is not correct. You're not telling the truth. You're lying.
Q. About what? Do you remember?
A. By that time he was—he was really off of the whole thing because like I said. We
never talked about the grievances. We never even got past the usage sheet. So
essentially anything that she has to say because she didn't translate the grievance 15
correctly.
(Tr. 319.) As noted above, Schofield did not testify about the meeting. I find the evidence is
unclear as to what, precisely, Davies said when he and Schofield were arguing about the Urincho
grievance. 20
Moreover, Davies’ reference to D’Angelo as an “ass” is not sufficiently egregious to
remove him as the Union’s representative.23 Long Island Jewish Medical Center, supra. Here,
Davies’ “choice of language, while strong and perhaps intemperate, was not so offensive,
flagrant, violent, or extreme as to render him unfit for further service.” Transcon Lines, 235 25
NLRB 1163, 1165 (1978); see also Dreis & Krump Mfg., Inc., 221 NLRB 309 (1975).
The Respondent relies on Davies giving Schofield the cold shoulder and referring to
Schofield as “she” and “her” to assert that Davies harassed Schofield.24 This evidence comes in
part from McCullough’s very confused testimony, unsupported by her meeting notes.25 One of 30
the meetings she discussed in her testimony occurred on June 5, after Davies had already been
barred from the facility. When discussing the April 22 meeting, which directly preceded Law’s
letter and the expulsion of Davies from the facility, McCullough was initially unable to recall if
Olvera was present for the Union, and thought Schofield was not there; In fact, Olvera was not
there and Schofield was. (Tr. 321–325; R Exh. 18.) Moreover, she stated that Davies pointed 35
out that Ligon was part of the Hostess debacle, prompting Ligon to say he was “fixin” to stop the

23 The Respondent asserts that this comment was made with the intent to poison the bargaining
relationship. Davies unrefuted testimony was that he made the comment in an attempt to generate a call
from Fronjian to him because he was concerned about the relationship between the Union and the plant,
and he thought Fronjin might also be concerned. (Tr. 156.) Regardless of intent, however, the comment
was not sufficiently egregious to make good faith bargaining impossible.
24 The Respondent points to cases involving gender discrimination under Title VII of the Civil Rights
Act of 1964. (R Br. 7, 9.) This reliance is misplaced, as the Board lacks jurisdiction to determine the
merits of a Title VII gender discrimination claim. In any event, whether it’s labeled as alleged gender-
based harassment or not, Davies’ conduct did not violate the Act under the standards the Board applies.
25 I do not find McCullough was intentionally trying to be untruthful, but instead observed that she
was nervous and confused.
JD(SF)–07–15
19
meeting, and in turn prompting Hawks to mock Ligon about his choice of language. She also
said this was the same meeting where Hawks referred to two different types of managers and the
comments about the plantation. (Tr. 325–326.) Her notes, however, belie that these events
occurred in the same meeting. First, McCullough’s notes from the April 22 meeting are not part
of the record, even though she testified she was present as a note-taker. (Tr. 323.) Davies’ notes 5
are in the record, and I therefore credit his contemporaneous version of what occurred, which is
supported by his testimony, and generally corroborated by Hawks’ testimony. (R Exh. 18.) His
notes do not reflect Ligon making the “fixin” comment, Hawks responding to any such
comment, or any comments regarding a plantation. According to McCullough’s notes, the
“fixin” comment and ensuing mockery of it took place on June 5, during a meeting Davies did 10
not attend, after he had been barred from the facility. The same holds true for the comments
about the plantation. (Tr. 325–326, 329; R Exh. 16.)
Ligon also was somewhat unclear on the timing and substance of the various meetings.
He testified that the meeting where Hawks made his comment about the two types of managers 15
concerned theft and occurred in March or early April. The record shows, however, that this
comment was made at the April 22 step-3 meeting about the discontinuation of product samples.
As noted, McCullough’s notes regarding the April 22 meeting were not entered into evidence.
Ligon’s testimony that Schofield presented the Respondent’s case, without any explanation of
her presentation’s topic or substance, is outweighed by Davies’ notes and the supporting 20
testimony that J&J did not put on its case at this particular meeting. (Tr. 378–379; R Exh. 18.)
In short, the only reliable evidence of Davies acting rudely toward Schofield comes from
testimony and notes about the April 10 meeting. McCullough’s testimony of what occurred on
April 22 is simply too confused to be considered reliable, and Ligon’s version of the topic and 25
timing of the meeting is likewise uncertain. The Respondent also asserts that Davies “stared” at
Schofield, but the only evidence regarding staring involves Ligon’s testimony that Hawks asked
if he and Schofield were having a staring contest during a meeting about theft on an uncertain
date.
30
The Respondent contends that Davies’ conduct toward Ligon, coupled with his treatment
of Schofield, justified his removal from the plant. Davies admittedly called Ligon an “ass” on
April 22. The other conduct attributed to Davies is his mocking of Ligon’s Southern heritage.
The evidence is clear, however, that the comments about “fixin” to end the meeting and the
plantation took place on June 5, during a meeting Davies did not attend. Finally, the Respondent 35
asserts Davies denigrated Ligon’s work performance. With regard to Davies calling Ligon an
“ass” and referencing his time working for Hostess, I find these are not egregious enough, even
when coupled with the comments and behavior directed at Schofield, to warrant Davies’
expulsion from the property. Moreover, as the General Counsel points out, Davies called Ligon
an “ass” in response to Ligon’s unilateral change to Davies’ access, and therefore the 40
Respondent cannot justify its decision to refuse to recognize Davies on this comment. Long
Island Jewish Medical Center, supra at 72.
The Respondent cites to CBS, Inc., 226 NLRB 537, 539 (1976), to argue that Davies’
pattern of harassing, discriminatory, and hostile conduct presented a “clear and present danger to 45
the bargaining process or would create such ill will as to make bargaining impossible or futile.”
(R Br. 10.) That case, however, involved a conflict of interest regarding the composition of a
JD(SF)–07–15
20
bargaining committee because one of the committee members was part of a labor organization
that did not represent CBS’s members, but represented its two key competitors, NBC and ABC.
Such a scenario is not present here.
All told, the record does not contain persuasive evidence that Davies’ presence would 5
create ill will and make good-faith bargaining impossible. Moreover, it is undisputed that no
bargaining occurred before the Respondent refused to recognize Davies as the Union’s
representative and barring him from the premises. Accordingly, I find that the Acting General
Counsel has met his burden to prove that Respondent threatened employees’ Section 7 rights by
sending the message that the person charged with administering their collectively bargained 10
rights was no longer allowed inside Respondent’s facility, and would be viewed by the Company
as breaking the law by trespassing if he tried to come to the facility. I further find the refusal to
recognize Davies and his expulsion from the premises interfered with the employees’ Section 7
rights. I therefore find that, by the conduct alleged in complaint paragraph 6(a), Respondent
violated Section 8(a)(1) of the Act, and by the conduct alleged in paragraphs 8(b), and 9(c), the 15
Respondent violated Section 8(a)(5) and (1) of the Act.
B. Promises of Increased Benefits and Improved Terms and Conditions of Employment
Subparagraphs 6(b)–(d) of the complaint assert that the Respondent, by the letter Law 20
sent on April 24, 2014, denigrated and disparaged the Union in order to undermine its
employees’ support for the Union, encouraged employees to abandon support for the Union, and
promised, by soliciting employee complaints and grievances, its employees increased benefits
and improved terms and conditions of employment if they abandoned support for the Union and
its authorized representative, in violation of Section 8(a)(1).25
“Words of disparagement alone concerning a union or its officials are insufficient for
finding a violation of Section 8(a)(1).” Sears, Roebuck & Co., 305 NLRB 193 (1991). An
employer, however, may violate the Act when it denigrates the union in the eyes of employees.
See Lehigh Lumber Co., 230 NLRB 1122 (1977). The employer’s freedom under Section 8(c) of 30
the Act to disparage, criticize, or denigrate the Union stops when the comments threaten
employees or otherwise impinge upon Section 7 rights. Children's Center for Behavioral
Development, 347 NLRB 35 (2006). In NLRB v. Gissel Packing, 395 U.S. 575, 617 (1969), the
Supreme Court stated:
35
[A]ny balancing of the employer rights of free speech and the rights of employees to be
free from coercion, restraint, and interference must take into account the economic
dependence of the employees on their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended implications of the latter that
might be more readily dismissed by a more disinterested ear.40
To begin with, I find the letter misrepresents and/or exaggerates much of what occurred.
The comment attributed to Davies about the plant closing did not, even by the Respondent’s own
witness’ account, take place in the context of discussing the USDA licensing, as stated in Law’s
letter. The meeting where Davies made a comment of this nature was an April 10 meeting about 45
grievances that had nothing to do with the theft and re-selling of product and its impact on the
Respondent’ s USDA license. (R Exh. 17.) Moreover, Davies’ alleged statement that he would
JD(SF)–07–15
21
rather see the plant “close forever than cooperate with the company on its efforts to run the plant
safely and efficiently because those efforts were making the employees unhappy” goes beyond
misrepresentation to fabrication. Neither McCullough’s after-the-fact notes nor her testimony tie
Davies’ comments to either the USDA licensing or attempts to run the plant efficiently. As
noted, Schofield, the only other person present at the meeting where the comment was alleged, 5
did not testify.
McCullough’s notes and Davies’ testimony, read together, present the most plausible
context for this statement. Davies testified that Schofield made some comments in the April 10
meeting to imply the Union’s grievances and unfair labor practice charges threatened the plant’s 10
viability. McCullough’s notes reflect Davies threatening to file charges over an information
request. The notes then digress into McCullough’s opinion about Davies’ motives and his
constant threats to file unfair labor practice charges. In the following paragraph, the notes reflect
Davies stating he didn’t care if he got “this place” shut down. (R Exh. 17.) Taken together, I
find there was a disagreement between Davies and Schofield about the request for information15
regarding Urincho’s grievance. From the content and tone of McCullough’s notes, it is apparent
the disagreement morphed into something broader than this one information request.
Specifically, the preponderant evidence shows that Davies and Schofield had a disagreement
over the Respondent’s perception that the Union was harassing the Company with baseless
requests and complaints, and the Union’s perception that it was representing its members and it 20
would continue to do so regardless of how it was perceived. Given Davies’ testimony,
referenced above, where he stated “I said something to the effect that I would rather see the plant
—let's see here . . . ,” I find he made a comment about the plant closing down.26 I also find it
was part of a robust exchange between him and Schofield about whether the Union was using the
grievance process frivolously and threatening unfair labor practice charges disingenuously. 25
Law’s letter also contains other misstatements and mischaracterizations. As noted above,
the evidence fails to establish that Davies explicitly called Schofield an “idiot” or a “liar.” Law
further cast blame on Davies for the Respondent’s unilateral changes to his plant access by
stating that Davies “refused to provide the company even the common courtesy of notifying 30
management when he arrives at the plant.” I find these misstatements and half-truths denigrated
Davies in the eyes of the Union’s members and undermined their support of their collective-
bargaining representative.
The most transparently false aspect of the letter is Law’s assurance to employees that it 35
was their choice who they chose as their bargaining representative. This assurance of free choice
was quickly rendered illusory by Law’s immediate successive statements that: (1) the Company
could refuse to bargain with a representative who behaved offensively, (2) Davies had behaved
offensively, and (3) bargaining with Davies was now impossible. Law concluded by thanking
the employees for their dedication, and directing them to contact certain individuals in human 40
resources with any questions, assuring employees that they would make every effort to find an
answer or solution. The letter was clearly aimed at “disparaging and discrediting the statutory

26 When he stopped himself in his testimony, he proceeded to ramble somewhat off point, which
undermines his credibility about this statement. Though I do not credit his denial of making a comment
about closing the plant down, I do not find his overall testimony lacked credibility. NLRB v. Universal
Camera Corp., supra.
JD(SF)–07–15
22
representative in the eyes of its employee constituents, to seek to persuade the employees to exert
pressure on the representative to submit to the will of the employer, and to create the impression
that the employer rather than the union is the true protector of the employees' interests.” General
Electric Co., 150 NLRB 192, 195 (1964), citing NLRB v. Herman Sausage Co., 275 F.2d 229,
233 (5th Cir. 1960), and NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 268 (2d Cir. 1963); see 5
also American Meat Packing Corp., 301 NLRB 835, 839 (1991); Hospital Shared Services, Inc.,
330 NLRB 317 (1999); Advanced Architectural Metals, Inc., 351 NLRB 1208 (2007).
The Charging Party further argues that the Law’s letter constituted direct dealing, in
violation of the Act. The Board’s criteria for establishing unlawful direct dealing are: “(1) the 10
[employer] was communicating directly with union-represented employees; (2) the discussion
was for the purpose of establishing or changing wages, hours, and terms and conditions of
employment or undercutting the Union's role in bargaining; and (3) such communication was
made to the exclusion of the Union.” Permanente Medical Group, 332 NLRB 1143, 1144
(2000), citing Southern California Gas Co., 316 NLRB 979 (1995). In the instant case, Law 15
communicated directly with unit employees, for the purpose of undercutting Davies’ role in
bargaining, to the exclusion of the Union.
Based on the foregoing, I find the General Counsel and Charging Party have established
the allegations set forth in paragraph 6(b)–(d) of the complaint.2720
C. Alleged Direct Dealing
Complaint paragraph 7 alleges that the Respondent violated Section 8(a)(5) and (1) when
Schofield bypassed the Union and dealt directly with employees by: (a) soliciting them to 25
indicate whether they wanted to share their contact information with the Union, and (b) soliciting
them to communicate their shift preferences in a manner that implied that whether they would be
granted their shift preference depended on whether they indicated their contact information could
be shared with the Union.
30
As noted above, the Board’s criteria for establishing unlawful direct dealing are: “(1) the
[employer] was communicating directly with union-represented employees; (2) the discussion
was for the purpose of establishing or changing wages, hours, and terms and conditions of
employment or undercutting the Union's role in bargaining; and (3) such communication was
made to the exclusion of the Union.” Permanente Medical Group, supra.35
With regard to the shift preferences, there is no dispute that Schofield’s form soliciting
shift preferences was sent directly to represented employees, and it concerned the potential for
changes to employees’ hours. The Union was not included in the communication. Accordingly,
the form constituted direct dealing regarding employee shift preferences. The shift preferences 40
for bracket 6 employees were to be requested each January according to the collective-

27 I note that the General Counsel asserted only a violation with regard to Section 8(a)(1) with regard
to these allegations, but the Charging Party argued there was a violation of Section 8(a)(5) and (1).
Because only the allegations in the complaint are before me, I decline to decide whether the Respondent
also violated Section 8(a)(5) as the Charging Party asserts.
JD(SF)–07–15
23
bargaining agreement. The Respondent gave no reason for re-soliciting this information rather
than just responding to the Union’s request.
As for the employees’ contact information, “[i]t is well established that the addresses and
phone numbers of bargaining unit employees are presumptively relevant for purposes of 5
collective bargaining and must be furnished upon request of the bargaining representative.”
River Oak Center for Children, 345 NLRB 1335 (2005); see also La Gloria Oil & Gas Co., 338
NLRB 858 (2003). Instead of providing the information, the Respondent sent employees a form
telling them they did not need to share their contact information with the Union and they could
withhold it by checking a box. I find that the juxtaposition of this unlawful opt-out opportunity 10
with the redundant shift-preference request establishes that the Respondent violated the Act as
alleged in complaint paragraph 7.28
D. Alleged Unilateral Changes
15
Complaint paragraph 9 alleges that the Respondent bypassed its bargaining obligations
and made certain unilateral changes to the employees’ terms and conditions of employment, in
violation of Section 8(a)(5) and (1) of the Act.
1. Food product samples20
Subparagraph 9(a) alleges that, around February or March 2014, the Respondent ceased
its practice of providing its employees, at no cost, with food products from the test kitchen and
unsalable food products.
25
Well-settled law provides that an employer may not change the terms and conditions of
employment of represented employees without providing their representative with prior notice
and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962).
The fact that a particular working condition or benefit is not expressly embodied in the 30
governing collective agreement is immaterial where satisfactorily established by practice or
custom. See Citizens Hotel Co., 138 NLRB 706, 712–713 (1962), enfd. 326 F.2d 501 (5th Cir.
1962); Frontier Homes Corporation, 153 NLRB 1070, 1072–1073 (1965); Central Ill. Pub. Serv.
Co., 139 NLRB 1407, 1415 (1962), enfd. 324 F.2d 916 (7th Cir. 1963). Regular and
longstanding practices that are neither random nor intermittent become terms and conditions of 35
employment even if not addressed in a collective-bargaining agreement. As such, these past
practices cannot be changed without offering the unit employees’ collective bargaining
representative notice and an opportunity to bargain, absent clear and unequivocal waiver of this
right. Sunoco, Inc., 349 NLRB 240, 244 (2007), citing Granite City Steel Co., 167 NLRB 310,
315 (1967); Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir. 1977); Exxon 40
Shipping Co., 291 NLRB 489, 493 (1988); DMI Distrib. of Del., 334 NLRB 409, 411 (2001).
This is no less true where the practice is denominated a “privilege,” voluntarily instituted or
bestowed by the employer. Cent. Ill. Pub. Serv. Co., 139 NLRB at 1415. A past practice must
occur with such regularity and frequency that employees could reasonably expect the “practice”

28 The Charging Party argues that the Respondent failed to provide the Union with necessary and
relevant information, but this is not alleged in the complaint. (CP Br. 42–43.)
JD(SF)–07–15
24
to continue or reoccur on a regular and consistent basis. Phila. Coca-Cola Bottling Co., 340
NLRB 349, 353–354 (2003); Eugene Iovine Inc., 328 NLRB 294, 297 (1999).
With regard to the hot food from the test kitchen, I find the General Counsel has
established there was a change to an established past practice. The record is undisputed that, 5
except for a couple months in early 2012, the Respondent has consistently provided sample
products from the QA kitchen to the employees whenever line 2 was running. The
discontinuation of this practice, without bargaining, was an unlawful unilateral change.
Finding a change in the terms and conditions of employment does not end the inquiry, 10
however because the duty to bargain only arises if the changes are “material, substantial and
significant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flambeau Airmold Corp., 334
NLRB 165, 171 (2001). The General Counsel bears the burden of establishing this. North Star
Steel Co., 347 NLRB 1364, 1367 (2006).
15
“The availability of food during working hours and the conditions under which it is to be
consumed are matters of deep concern to workers . . . . The terms and conditions under which
food is available on the job are plainly germane to the working environment.” Ford Motor Co. v.
NLRB, 441 U.S. 488, 498 (1979). In Sprain Brook Manor Nursing Home, LLC, 359 NLRB No.
105 (2013), affd. 361 NLRB No. 54 (2014), the employer had a practice of providing hot lunches 20
to employees after the nursing home residents had been fed. The Board found that
discontinuation of this practice and replacement of the hot lunch with sandwiches and salads
without bargaining was an unlawful unilateral change to the employees’ terms and conditions of
employment. Moreover, as the Charging Party points out, cessation of regular but infrequent
provision of food to employees can be a material change. Presto Casting Co., 262 NLRB 346, 25
347 (1982), enfd. 708 F.2d 495 (9th Cir. 1983); Harowe Servo Controls, Inc., 250 NLRB 958,
959 (1980). Likewise, cessation of food or drinks may be material, substantial, and significant
even if the items are of low value. See, e.g. Wisconsin Steel Indus., 321 NLRB 1394
(1996)(elimination of coffee and donuts on paydays unlawful unilateral change).
30
The Respondent cites to Weather Tec Corp., 238 NLRB 1535, 1536 (1978), to support its
contention that it did not implement a material, substantial and significant change when it
discontinued providing food samples from line 2. In that case, the Board found that the
employer did not violate the Act when it ceased providing coffee to employees. In Weather Tec,
the parties were engaged in bargaining, and the coffee policy was not mentioned by the union 35
during any of the bargaining sessions over the course of 10 months of bargaining. Here, there
was an established past practice and the parties were not engaged in contract negotiations. In
this context, the great weight of authority establishes that the Respondent implemented a
material, significant, and substantial change without notice to the Union or the opportunity to
bargain.2940
The Board has recognized a limited exception to the duty to bargain “when economic
exigencies compel prompt action.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991). In
situations like the present one, where a contract has been negotiated and the issue is a change in

29 The cases cited in CP Br. pp. 33–35, in addition to those cited herein, establish the weight of the
Board’s authority on this issue.
JD(SF)–07–15
25
terms and conditions in employment, the framework in RBE Electronics, Inc., 320 NLRB 80
(1995), applies. The Board in RBE stated:
[W]here we find that an employer is confronted with an economic exigency compelling
prompt action short of the type relieving the employer of its obligation to bargain 5
entirely, we will hold under the Bottom Line Enterprises exigency exception, as further
explicated here, that the employer will satisfy its statutory obligation by providing the
union with adequate notice and an opportunity to bargain. In that event, consistent with
established Board law in situations where negotiations are not in progress, the employer
can act unilaterally if either the union waives its right to bargain or the parties reach 10
impasse on the matter proposed for change.
Id. at 82 (footnotes omitted).
In the instant case, I find no compelling exigency existed. The Respondent 15
acknowledged that the cooked food from the QA line had never been taken from the facility and
re-sold. Moreover, assuming this was a concern, the Respondent was obligated to bargain with
the Union prior to unilaterally changing its practice. The Respondent did not claim to know
what proposals the Union would have made regarding the changes, or what alternative solutions
the give-and-take of bargaining might have generated.20
The Respondent cites to Murphy Oil USA, 286 NLRB 1039, 1042 (1987), to assert that an
employer is not required to bargain over changes required or necessitated by law. The evidence
does not show, however, that there was a requirement to cease the practice of providing
employees sample products in the cafeteria in order to comply with the law. 25
Finally, the Respondent contends that there was not an unbroken practice of providing
QA samples because they had previously been suspended in 2012. This position, however, takes
too rigid a view of past practice. Here, the evidence showed that, for roughly 2 years prior to
March 2014, there was a past practice with regard to providing QA samples that occurred with 30
sufficient regularity and frequency that employees could reasonably expect the “practice” to
continue or reoccur on a regular and consistent basis. I find, therefore, that the General Counsel
has met the burden of proof with regard to the portion of complaint allegation 9(a) that alleges
unilateral cessation of food samples from the QA lab.
35
With regard to unsalable food products, I find the General Counsel has failed to establish
a past practice. When asked if there was a practice with regard to garbage product, McGuire
testified, “If at times employees asked permission they were given permission to take this
product home.” (Tr. 24.) No witness testified as to the regularity and frequency of consuming or
taking home unsalable products, and the Respondent’s witnesses all testified there was no such 40
practice. This is supported by the petition Davies presented, signed by 68 employees, outlining
the inconsistency of the Respondent’s actions over time. (R Exh. 7.) Accordingly, I recommend
dismissal of the portion of complaint allegation 9(a) regarding unsalable products.
45
JD(SF)–07–15
26
2. Changes to union representatives’ visits to plant
Complaint subparagraph alleges that on April 22, 2014, the Respondent implemented a
requirement that: (i) authorized union representatives give Plant Manager Ligon 24-hours
advance notice of the dates of their planned visits to the facility, the time of their planned arrival, 5
and the purpose of their visit; (ii) authorized union representatives sign in and out with Plant
Manager Ligon or Human Resources Manager Schofield when visiting the facility; (iii)
authorized union representatives limit their visits to the facility to administrative hours; (iv)
authorized union representatives confine their visits to the cafeteria; and (v) authorized union
representatives not to use the cafeteria as a union hall and to limit their visits to a “respectable 10
amount of time.”
The analysis regarding past practice, set forth above, applies here. As a condition of
employment, the method of access by employees to their representatives for grievance resolution
is a matter related to “wages, hours, and other terms and conditions of employment” within the 15
meaning of Section 8(d) of the Act and is a mandatory subject of bargaining. Bethlehem Steel
Co., 136 NLRB 1500, 1502 (1962), enforced, 320 F.2d 615, 620 (3d Cir. 1963). See also
Westinghouse Electric Corp., 141 NLRB 733, 735-736 (1963), reversed on other grounds 325
F.2d 126 (7th Cir. 1963); Motoresearch Co., 138 NLRB 1490, 1492 (1962); J & H Rainwear,
273 NLRB 497 (1984), and Hous. Coca-Cola Bottling Co., 265 NLRB 766, 778 (1982). “[A] 20
unilateral change in an employer's policy permitting access by union representatives to its
premises is a unilateral change in the employees' terms and conditions of employment and is,
ordinarily, unlawful.” Turtle Bay Resorts, 355 NLRB 1272, 1272 (2010).
Unlike the product samples, some aspects of plant access are addressed in the collective-25
bargaining agreement. Article 11.3 provides, in relevant part, that union representatives may
visit the plant “for the purpose of ascertaining whether or not this Agreement is being observed,
and to assist in adjusting grievances.” It further states, “Union representatives shall contact the
Plant Manager or his designated representative prior to entry.”
30
It is well settled that the Board has the authority to interpret the terms of a collective-
bargaining agreement to determine whether an unfair labor practice has been committed. NLRB
v. C & C Plywood Corp. 385 U.S. 421, 428 (1967); Resco Prods., Inc, 331 NLRB 1546 (2000).
In Resco, the Board described its method of interpreting collective-bargaining agreements as
follows:35
In interpreting a contract, the parties' intent underlying the contract language is
paramount and is given controlling weight. To determine the parties' intent, the Board
looks to both the contract language and to the relevant extrinsic evidence, such as the
parties' bargaining history and past practice. When there is no extrinsic evidence, the 40
Board looks to the ordinary meaning of relevant contract terms as applied to the facts of
the case.
331 NLRB at 1548. “Where past practice has established a meaning for language that is used by
the parties [in their agreement], the language will be presumed to have the meaning given it by 45
past practice.” Pan-Adobe, Inc., 222 NLRB 313, 325 (1976) (quoting Pekar v. Local 181,
Brewery Workers, 311 F.2d 628, 636 (6th Cir. 1962), cert. denied 373 U.S. 912 (1963)). A
JD(SF)–07–15
27
“unilateral change in the past practice of permitting union access is a material change about
which an employer is obligated to bargain.” Casino San Pablo, 361 NLRB No. 148, slip op at 7
(2014), citing Ernst Home Centers, 308 NLRB 848, 849 (1992).
It is clear that longstanding past practice had permitted union representatives access to 5
the plant by checking in with the staff at reception. As such, the past practice has established a
meaning for the plant manager’s designated representative for purposes of access, i.e. the
employees who work in reception. There is no provision in the collective-bargaining agreement
regarding signing in or out with any particular management officials, and I find the established
past practice was devoid of any such requirement. Moreover, while the collective-bargaining 10
agreement specifies the purpose for the visits, it is silent as to whether the purpose of each visit
needs to be pre-announced to the plant manager 24 hours prior. The uncontroverted evidence
shows that this was not a requirement until April 22. It is undisputed that the Respondent did not
provide notice to the Union or bargain over these changes. In light of the evidence of
longstanding past practice of the union representatives visiting the facility without pre-15
announcement of the time and purpose of each visit, and without signing in or out with any
specified management officials, I find there was a unilateral change to the terms and conditions
of employment for the represented employees.
The collective-bargaining agreement addresses the timing of the Union’s visits to the 20
plant as follows: “The Company shall admit to the plant during working hours any authorized
representative(s) of the Union for the purpose of ascertaining whether or not this Agreement is
being observed, and to assist in adjusting grievances.” (Emphasis added.) Based on the
undisputed evidence that the Union had an established practice of visiting employees who
worked different shifts, I find the term “working hours” encompassed any time a unit member 25
was scheduled to work.
The collective-bargaining agreement does not directly address the duration of the Union’s
visits to the facility, but require visits to be on “non-working time so that there shall be no
interference with or interruption of normal operating conditions.” The Respondent did not 30
submit evidence that there was interruption of normal operating conditions. The only evidence
presented is that on April 22, Ligon saw Davies talking to Carmen Aguirre in the laundry room
while she was on the clock. The subject of the conversation is not a matter of record, and there
was no evidence presented that Davies or any other union representative conducted union
business with employees during working time, in contravention of the contract. 35
With regard to location of the visits, the collective-bargaining agreement requires that the
Union’s authorized visits occur in “non-working areas” of the plant. The evidence establishes
that the union representatives’ established past practice was to visit employees in the cafeteria,
the hallway where the union bulletin board was located, the hallway where the schedule was 40
posted, outside the plant where employees smoked, the restroom, training room, and laundry
room. Clearly, there are areas of the facility other than the cafeteria that can only be categorized
as non-working areas, and the restriction of Davies from these areas is a unilateral change from
established past practice.
45
The Respondent argues that the changes to Davies’ access were not material, substantial
and significant. I disagree. As the Board recently stated in Casino San Pablo, supra, when
JD(SF)–07–15
28
discussing a change to a union representative’s access to the breakroom, “a unilateral change in
the past practice of permitting union access is a material change about which an employer is
obligated to bargain.” Here, by requiring management approval for Davies to visit, and to
require Davies to announce the purpose of his visit, the Respondent unilaterally removed a “real
and substantial benefit” the Union previously enjoyed. Granite City Steel Co., 167 NLRB 310, 5
315 (1967). Having a manager aware each time an employee requests to meet with Davies and
requiring Davies to sign in with management would clearly inhibit the kind of candid exchanges
possible between the represented employees and their union agents. Such a requirement is a way
to make certain mangers know when and with whom meetings between the union agent and unit
employees occur. 10
The Respondent cites to Peerless Food Products, 236 NLRB 161 (1978), for support. In
that case, the employer limited the union representative’s access to the production floor during
working hours to engage in conversations unrelated to contract matters. The instant case is
distinguishable in that Davies never sought access to the production floor.30 The Respondent 15
also cites to Nynex Corp., 338 NLRB 659 (2002), where the Board found the employer’s
cancellation of the union representatives’ magnetic access cards was not a material, significant,
and substantial change. The employer, in response to an incident, beefed up security and
required all visitors, including the union representatives, to present identification in order to
access the facility. The union representatives were not required to obtain permission to enter the 20
facility, and once inside, their movements within the facility were unrestricted. The restrictions
in the instant case, detailed above, were significantly more extensive.
Based on the foregoing, I find the General Counsel has met its burden to prove that the
Respondent unilaterally changed material aspects of Davies’ visitation to the plant as alleged in 25
complaint paragraph 9(b).

E. The Respondent’s Adverse Inference Request
The Respondent has requested that I draw an adverse inference based on the Union’s 30
failure to instruct Olvera to look for emails and other responsive documents to its subpoena
requests. The subpoena at issue requests, in relevant part, all documents concerning or
mentioning Adam Ligon and Karyn Schofield and all documents relating to paragraphs 6–10 of
the complaint.
35
Jaime Olvera was not appointed as a business representative for the unit members at J&J
on April 25, 2014. This post-dates any of the allegations before me, and therefore it is
unsurprising that none of the allegations concern or mention Olvera. There is no evidence
connecting Olvera to Ligon, Schofield, or anyone at J&J prior to April 25. As a result, I find he
would not have relevant information, and therefore his failure to search for emails has not 40
prejudiced the Respondent. . See CPS Chemical Co., 324 NLRB 1018, 1019 (1997), enfd. 160
F.3d 150 (3d Cir. 1998) (no prejudice suffered by non-production). For this reason, I decline to
draw an adverse inference.

30 For the same reason, this case is distinguishable from National Sea Products, 260 NLRB 3 (1982).
JD(SF)–07–15
29
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.5
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By: (a) telling employees that the Union’s representative was no longer permitted
on the Respondent’s premises; (b) failing and refusing to recognize the Union’s representative; 10
(c) denigrating and disparaging the Union; (d) encouraging employees to abandon support for the
Union and its representative; (e) promising employees, by soliciting employee complaints and
grievances, increased benefits and improved terms and conditions of employment if they
abandoned their support for the Union, the Respondent has violated Section 8(a)(1) of the Act.
15
4. By: (a) soliciting employees to indicate whether their contact information could be
shared with the Union; (b) soliciting employees to communicate shift preferences directly to the
Respondent in a manner that implied that granting the shift preference depended on whether they
indicated their contact information could be shared with the Union; (c) ceasing its practice of
providing employees with cooked food products in the cafeteria; (d) implementing a requirement 20
that union representatives provide the plant manager with 24-hours notice of their visits to the
facility; (e) implementing a requirement that union representatives sign in and out of the plant
with either the plant manager or the human resources manager; (f) implementing a requirement
union representatives visit the plant during administrative hours; (g) implementing a requirement
that union representatives confine their visits to the cafeteria; (h) imposing a requirement that25
Union representatives not use the cafeteria as a union hall and limit visits to a “respectable”
amount of time; and (i) banning Union Representative Richard Davies from the facility, the
Respondent has violated Section 8(a)(5) and (1) of the Act.
REMEDY30
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
35
Having told employees that the Union’s representative was no longer permitted on the
Respondent’s premises; failed and refused to recognize the Union’s representative; denigrated
and disparaged the Union; encouraged employees to abandon support for the Union and its
representative; and promised employees, by soliciting employee complaints and grievances,
increased benefits and improved terms and conditions of employment if they abandoned their 40
support for the Union, the Respondent will be ordered to cease and desist from these actions.
Having solicited employees to indicate whether their contact information could be shared
with the Union; solicited employees to communicate shift preferences directly to the Respondent
in a manner that implied that granting the shift preference depended on whether they indicated 45
their contact information could be shared with the Union; ceased its practice of providing
employees with food products; implemented a requirement that union representatives provide the
JD(SF)–07–15
30
plant manager with 24-hours notice of their visits to the facility; implemented a requirement that
union representatives sign in and out of the plant with either the plant manager or the human
resources manager; implemented a requirement that union representatives visit the plant during
administrative hours; implemented a requirement that union representatives confine their visits to
the cafeteria; imposed a requirement that union representatives not use the cafeteria as a Union 5
hall and limit visits to a “respectable” amount of time; and banned Union representative Richard
Davies from the facility, the Respondent must rescind these actions and restore the status quo
ante.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended31
ORDER
The Respondent, J & J Snack Foods Handhelds Corp., Weston, Oregon, its officers, 15
agents, successors, and assigns, shall:
1. Cease and desist from
(a) Bypassing Teamsters, Warehousemen, Garage Employees and Helpers, Local Union 20
No. 839, affiliated with International Brotherhood of Teamsters (the Union) and dealing
with its employees directly regarding their wages, hours and working conditions;
(b) Soliciting grievances from employees, and promising to remedy them;
25
(c) Disparaging or denigrating the Union;
(d) Making changes in employees’ wages, hours and working conditions without
bargaining with the Union;
30
(e) Making changes to the access policy in the collective bargaining agreement without
bargaining and reaching agreement with the Union;
(f) Refusing to meet with, recognize and/or bargain with Union Business
Representative, Rich Davies (“Davies”), or any other individual designated by the Union; and35
(g) Banning Davies from the plant and threatening him with trespass if he visits the
plant.
(h) In any like or related manner restraining or coercing employees in the exercise of the 40
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.

31 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–07–15
31
(a) Meet with, recognize and bargain with Davies as the representative of its
employees;
(b) Restore all of Davies’ access rights that he had prior to April 23, 2014;5
(c) Rescind all changes made to the Union’s visitation policy in the collective
bargaining agreement on April 22, 2014;
(d) Restore the practice of providing employees, at no cost, with food products from the 10
test kitchen; and
(e) Within 14 days after service by the Region, post at its facility in Weston, Oregon
copies of the attached notice marked “Appendix”32 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 19, after being signed by the 15
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such 20
means. 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 Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since 25
March 14, 2014.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.30
Dated, Washington, D.C. March 13, 201535
____________________
Eleanor Laws
Administrative Law Judge40

32 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–07–15
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
Teamsters, Warehousemen, Garage Employees and Helpers, Local Union No.
839, affiliated with International Brotherhood of Teamsters (the “Union”) is the exclusive
representative in dealing with us regarding wages, hours, and other working conditions of the
employees employed at our facility in Weston, Oregon.
WE WILL NOT bypass your Union and deal directly with you concerning your wages,
hours and working conditions.
WE WILL NOT ask you about your complaints and grievances and imply that we will fix
them in order to discourage you from supporting a union.
WE WILL NOT disparage or denigrate your Union or union representatives to you by
any means, including our letter of April 24, 2014.
WE WILL NOT make changes in your wages, hours, or working conditions, including
our providing you with food products, without the agreement of the Union or without first
reaching good faith impasse with the Union.
WE WILL NOT make changes to the Union’s access to the facility without first notifying
the Union and providing an opportunity to bargain.
JD(SF)–07–15
WE WILL NOT refuse to meet with, recognize and/or bargain with Union Business
Representative Rich Davies (Davies) or any other individual designated by the Union as your
bargaining representative.
WE WILL NOT ban Davies from the premises or the plant and WE WILL NOT threaten
Davies with trespass if he visits the facility.
WE WILL meet with, recognize and bargain with Davies as your designated collective
bargaining representative.
WE WILL restore all of Davies’ access rights that he had prior to our decision to ban him
from the facility.
WE WILL rescind all changes we made to the Union’s access to the facility without
bargaining with the Union.
WE WILL rescind any changes we made to the past practice of providing you, at no cost,
with food from our test kitchen to consume in the cafeteria.
WE WILL NOT in any like or related manner interfere with your rights under Section 7
of the Act.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-126632 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.