J & J Snack Foods Handhelds Corp.

National Labor Relations Board - Board Decisions

Oct 1, 2015

363 NLRB No. 21 (N.L.R.B. 2015)

363 NLRB No. 21
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
J&J Snack Foods Handhelds Corp. and Teamsters,
Warehousemen, Garage Employees and Help-
ers, Local Union No. 839, affiliated with Interna-
tional Brotherhood of Teamsters. Cases 19–CA–
126632, 19–CA–127401, 19–CA–127413, 19–CA–
127689, and 19–CA–134279
October 1, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On March 13, 2015, Administrative Law Judge Elea-
nor Laws issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below2 and to adopt the recommended Order as
modified and set forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent did not except to the judge’s findings that it violat-
ed Sec. 8(a)(1) by soliciting employee complaints and grievances
thereby promising increased benefits and improved terms and condi-
tions of employment if they abandoned their support for the Union and
violated Sec. 8(a)(5) by soliciting employees to indicate whether their
contact information could be shared with the Union, and 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.
The Respondent excepts to the judge’s findings that, among other
things, it violated Sec. 8(a)(1) by denigrating and disparaging the Union
and by encouraging employees to abandon support for the Union and
its representative. The Respondent, however, presented no argument in
support of these two exceptions. Accordingly, we shall disregard them
pursuant to Sec. 102.46(b)(2) of the Board’s Rules and Regulations.
See Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005),
enfd. 456 F.3d 265 (1st Cir. 2006).
We grant the General Counsel’s request to strike portions of the Re-
spondent’s exceptions brief as asserting facts not in evidence. We note,
however, that these additional facts, even if true, would not affect the
result in this case.
2 In her Conclusions of Law, 3(b), the judge inadvertently found
that the Respondent violated Sec. 8(a)(1) by failing and refusing to
AMENDED CONCLUSIONS OF LAW
1. Delete Conclusion of Law 3(b) and reletter the sub-
sequent subparagraphs.
2. Add the following as Conclusion of Law 4(i) and
reletter the subsequent subparagraph.
“4. (i) failing and refusing to recognize the Union’s
representative.”
AMENDED REMEDY
In addition to the remedies ordered by the judge, we
find that a public reading of our remedial notice is ap-
propriate here. The Respondent’s violations of the Act
are sufficiently serious and widespread that the reading
of the notice is necessary to dissipate as much as possible
any lingering effects of the Respondent’s unfair labor
practices, and to enable employees to exercise their Sec-
tion 7 rights free of coercion. See, e.g., The Sheraton
Anchorage, 363 NLRB No. 6, slip op. at 2 (2015); Carey
Salt Co., 360 NLRB No. 38, slip op. at 2 (2014); HTH
Corp., 356 NLRB No. 182, slip op. at 8 (2011), enfd. 693
F.3d 1051 (9th Cir. 2012); Homer D. Bronson Co., 349
NLRB 512, 515 (2007), enfd. mem. 273 Fed. Appx. 32
(2d Cir. 2008). We observe that the letter to all employ-
ees from the Respondent’s Senior Vice President Gerard
Law was particularly powerful in undermining the em-
ployees’ free exercise of their Section 7 rights, including
the fundamental right to a bargaining representative of
their own choosing. Therefore, we will require that the
remedial notice be read aloud to the Respondent’s em-
ployees by Law (or, if he is no longer employed by the
Respondent, the current senior vice president) in the
presence of a Board agent or, at the Respondent’s option,
by a Board agent in that official’s presence. Given that a
significant number of the Respondent’s employees speak
Spanish, we will require the notice to be read in both
English and Spanish.4

recognize the Union’s representative; the complaint, however, alleges
that this conduct violates Sec. 8(a)(5). The judge made the same error
in the “Statement of the Case” section of her decision. We shall amend
the conclusions of law to correct the judge’s inadvertent error.
3 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language. We shall
also substitute a new notice to conform to the Order as modified.
4 Although the General Counsel did not seek an order requiring the
Board’s notice to be read aloud, his failure to do so does not preclude
our imposing such a remedy. The Board has broad discretionary au-
thority under Sec. 10(c) to fashion appropriate remedies that will best
effectuate the policies of the Act. NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 262–263 (1969). It is well established that remedial
matters are traditionally within the Board’s province and may be ad-
dressed by the Board even in the absence of exceptions. See, e.g.,
Fieldcrest Cannon, Inc., 318 NLRB 470, 473 fn. 6 (1995), enfd. in
relevant part 97 F.3d 65 (4th Cir. 1996); Schnadig Corp., 265 NLRB
147 (1982).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that the
Respondent, J&J Snack Foods Handhelds Corp., Weston,
Oregon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bypassing Teamsters, Warehousemen, Garage Em-
ployees and Helpers, Local Union No. 839, affiliated
with International Brotherhood of Teamsters (the Union)
and dealing directly with its employees regarding their
wages, hours, and working conditions.
(b) Telling employees that their union representative
was no longer permitted on its premises and threatening
them that any attempt by their representative to visit the
plant would be considered trespass.
(c) Disparaging or denigrating the Union by misrepre-
senting the conduct of the employees’ union representa-
tive, including by its letter of April 24, 2014.
(d) Encouraging employees to abandon support for the
Union and its representatives.
(e) Soliciting employee complaints and grievances,
thereby promising its employees increased benefits and
improved terms and conditions of employment if they
abandoned support for the Union and its authorized rep-
resentative.
(f) Unilaterally ceasing its practice of providing em-
ployees with cooked food products in the cafeteria with-
out first notifying the Union and providing it an oppor-
tunity to bargain.
(g) Making changes to its union visitation policy and
practices without first notifying the Union and providing
it an opportunity to bargain.
(h) Refusing to meet with, recognize, and/or bargain
with Union Business Representative, Rich Davies (Da-
vies), or any other individual designated by the Union as
the employees’ bargaining representative.
(i) Banning Davies from the plant and informing him
that any attempt to visit the plant would be considered
trespass.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All production, maintenance, and quality control em-
ployees working at the employer’s facilities at Weston,
Oregon, excluding all office and clerical employees,
guards, and supervisors as defined in the Act.
(b) Meet with, recognize, and bargain with Davies as
the designated collective-bargaining representative of its
employees.
(c) Restore all of Davies’ access rights that he had pri-
or to April 23, 2014.
(d) Rescind all changes made to its union visitation
policy and practices on April 22, 2014.
(e) Restore the practice of providing employees, at no
cost, with food products from the test kitchen to consume
in the cafeteria.
(f) Within 14 days after service by the Region, post at
its facility in Weston, Oregon, copies of the attached
notice marked “Appendix”5 in both English and Spanish.
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent’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 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 14,
2014.
(g) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which will be
scheduled to ensure the widest possible attendance of
unit employees, at which time the attached notice is to be
read to the employees in English by Senior Vice Presi-
dent Gerard Law (or the current senior vice president), or
at the Respondent’s option, by a Board agent in that offi-
cial’s presence, and shall also be read, by interpreters, in
Spanish.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 19, a sworn certi-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
J&J SNACK FOODS HANDHELDS CORP. 3
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 1, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT bypass the Union and deal directly with
you concerning your wages, hours, and working condi-
tions.
WE WILL NOT tell you that your union representatives
are no longer permitted on our premises and threaten you
that any attempt by your representatives to visit the plant
would be considered trespass.
WE WILL NOT disparage or denigrate the Union by mis-
representing the conduct of your union representatives,
including by our letter of April 24, 2014.
WE WILL NOT encourage you to abandon support for
the Union and its representatives.
WE WILL NOT solicit your complaints and grievances,
thereby promising you increased benefits and improved
terms and conditions of employment if you abandon sup-
port for the Union and its authorized representative.
WE WILL NOT unilaterally cease our practice of provid-
ing you with cooked food products in the cafeteria with-
out first notifying the Union and providing it an oppor-
tunity to bargain.
WE WILL NOT make changes to our union visitation
policy and practices without first notifying the Union and
providing it an opportunity to bargain.
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 inform Davies that any attempt to
visit the plant will be considered trespass.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All production, maintenance, and quality control em-
ployees working at the employer’s facilities at Weston,
Oregon, excluding all office and clerical employees,
guards, and supervisors as defined in the Act.
WE WILL meet with, recognize, and bargain with Da-
vies as your designated collective-bargaining representa-
tive.
WE WILL restore all of Davies’ access rights that he
had prior to April 23, 2014.
WE WILL rescind all changes we made to our union
visitation policy and practices on April 22, 2014.
WE WILL restore the practice of providing you, at no
cost, with food products from our test kitchen to con-
sume in the cafeteria.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
workers by Gerard Law (or the current senior vice presi-
dent), in the presence of a Board agent, or by a Board
agent in the presence of that official.
J&J SNACK FOODS HANDHELDS CORP.
The Board’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
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Relations Board, 1015 Half Street SE, Washington, D.C.
20570, or by calling (202) 273–1940.
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 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
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
permitted on the Respondent’s premises; (2) failing and refus-
ing 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 em-
ployees, by soliciting employee complaints and grievances,
increased benefits and improved terms and conditions of em-

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 circum-
stances present based on the unforeseen nature of Humble’s unavaila-
bility. Fed. R. Civ. P. 43(a). The Fed. R. Civ. P. 43, Notes of Advisory
Committee on Rules—1996 Amendment, state that “the most persua-
sive 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 transmis-
sion.”
2 All dates in 2014 unless otherwise indicated.
ployment if they abandoned their support for the Union.
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 em-
ployees to communicate shift preferences directly to the Re-
spondent in a manner that implied that granting the shift prefer-
ence depended on whether they indicated their contact infor-
mation 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 man-
ager with 24-hour notice of their visits to the facility; (5) im-
plemented 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 requirement that union
representatives visit the plant during administrative hours; (7)
implemented a requirement that the union representatives con-
fine 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.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with a facility in Weston, Or-
egon, manufactures and distributes snack foods. The Respond-
ent admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A . The Respondent’s Operations
J&J’s Weston plant produces a variety of food products, in-
cluding pretzels, pretzel dogs, 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

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 tran-
script; “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. Alt-
hough I have included several citations to the record to highlight par-
ticular testimony or exhibits, I emphasize that my findings and conclu-
sions are based not solely on the evidence specifically cited, but rather
are based on my review and consideration of the entire record.
J&J SNACK FOODS HANDHELDS CORP. 5
a day, 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. William “Mike” Adams, was a
production supervisor until the summer of 2014, when he be-
came the production manager. (Tr. 279.) Karyn Schofield be-
came 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 administrator.
B. The Bargaining Unit and Union Representatives
Since around 2005, the Local 839 has represented a wall-to-
wall unit of all hourly 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 em-
ployees, 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 Septem-
ber 30, 2013, and the second commenced on October 1, 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 rep-
resentative for the Union in 2006. (Tr. 61.) He was assigned
responsibility for the bargaining 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.) Business Representa-
tive Jaime Olvera was assigned responsibility for the bargain-
ing 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.
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 tem-
porary 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 ad-
dressing visitation. Article 11.3 provides:
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 ob-
served, and to assist in adjusting grievances. Such Union rep-
resentatives shall contact the Plant Manager or his designated
representative prior to entry. The parties also agree that while

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.
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 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 waiting area, announce his presence,
sign the visitor sign-in sheet, and obtain a visitor’s badge. Da-
vies 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 re-
stroom, training room, and laundry room.7 (Tr. 76–79.) Em-
ployee Carmen Ruiz Aguirre, one of six shop stewards at J&J,
worked intermittently in the laundry room, which is located
next to 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
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 to employees for $1 apiece. An inspector from the USDA
saw some of the product being resold in a store. As a result,
ConAgra got a noncompliance report for permitting unlabeled
products to leave the plant for resale, in violation of USDA
regulations.
E. The Quality Assurance Lab and Food Samples
for Employees
Certain products are tested for quality assurance in the Re-
spondent’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 microwaved in a prepackaged sleeve. The QA em-
ployees are able to inspect the baked items from line 1 by mi-
crowaving a unit to ensure the seams don’t pop open and the
color and integrity of the product are intact. After testing, sam-
ples 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 produced fruit turn-
overs. It operates two or three times per week.8 Each hour, a

7 Olvera accessed the plant in the same manner as Davies.
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.)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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, 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 spe-
cialist since 2011, and has served as a union steward since
2006.9 According to McGuire, frozen foods packaged in mi-
crowaveable 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 em-
ployees 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 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 con-
taminated on the floor. 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.)
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 meet-
ing. He announced that 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 em-
ployees 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.)
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.)

9 McGuire reports to Bob Rich, the warehouse manager.
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.)
F. March 2014 Meetings and Events
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.)
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 termina-
tions. (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 at-
tended and took notes.11 (Tr. 312.) Officer Parker walked them
through what had happened with the three individuals and they
viewed surveillance video documenting the incident.
After Officer Parker left, they discussed the grievance. Da-
vies stated his belief the employees had permission to take
product home, and were acting in accordance with an estab-
lished practice. He said he saw employees take product every
time he visited the plant. (Tr. 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 requir-
ing a signature or written permission. At other times there has
been no 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
at one time or another, and many have done so frequently.
Supervisors have been aware of this practice, and some su-
pervisors have also openly taken product home.
(R. Exh. 7; Tr. 98.) Hawks asked Schofield if she had dis-
closed the practice that had existed, and mentioned that paint-
ing a false picture to the prosecutor was a felony. (Tr. 237–
238.)
Though the grievance did not involve resale 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 resold 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 re-
quest. 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

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. (Tr. 337, 342.)
J&J SNACK FOODS HANDHELDS CORP. 7
supervisor taking and reselling product.12 (Tr. 313–314.) Ac-
cording 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 re-
quested information because he did not have direct knowledge
of anyone reselling product. He said that if he did have direct
knowledge, he may or may not tell Ligon about it, because he
had a 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 reselling 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.)
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.
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 manu-
facture USDA products. (Tr. 374–375.). Humble told Ligon
that J&J could get into a lot of trouble if this happened again,
and showed him a regulation stating that two violations for
having unlabeled food resold 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.)
As discussed directly below, this prompted Ligon to stop the
practice of providing QA samples from the line to employees in
the cafeteria.
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 bar-
gained with the Union beforehand. The Union filed a grievance
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 members the previous day, some
morale issues were raised. Davies stated that Ligon never in-
troduced himself to the employees and that the Union “de-
mands an audience with you in which all hourly employees and
I can participate.” The letter outlined the following topics the
employees wanted to discuss:
1) Unfounded threats of discharge, deportation, and disquali-
fication by supervisors
2) Screaming and other disrespectful and intimidating treat-

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.)
ment 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 en-
shrined in the labor agreement
6) Increased line speed and decreased staffing beyond the
point at which worker safety can be ensured.
(R. Exh. 8.)
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 said he was appalled
Davies had not brought this to the Company’s attention.
D’Angelo instructed Davies to provide the names of the em-
ployees 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.)
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
consumed product in the plant. He stated he had heard differ-
ent stories about employees reselling 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 stat-
ed that if the three employees were returned to work, the mis-
understanding could be resolved by 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.)
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
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 reselling of product, the
Company could lose its grant of inspection if this practice con-
tinued. 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 employees.” She denied the
grievance, asserting that no violations of the contract had been
committed.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G. Request for Information about Unit Members
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 agree-
ment, they could express shift preferences annually in January,
and shifts were awarded by seniority. In addition, he asked for
the line preferences of “bracket 5” employees, i.e. pack-
er/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):
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 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
INFORMATION
Street Address:
City:
State:
Zip Code:
Home Phone:
Cell Phone:
Message:
Shift Preference DAY SWING 3rd
Schofield told Davies she would forward him the information
she received from employees. She also would provide an up-
dated list of bid holders and qualifications along with a seniori-
ty list the following day.13 Davies perceived that the Company
was trying to turn members against the Union by asking mem-
bers 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 stat-
ing that Schofield had sent him the addresses, phone numbers,
qualifications, bid awards, and seniority list for all employees,

13 Most employees permitted the information elicited to be shared,
but some did not. (Jt. Exh. 6.)
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 shar-
ing 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 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.)
The email exchanges continued, and on March 21, Davies in-
formed 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 those above her. He again ex-
pressed that the Union was entitled to the information, and that
the release sent to employees was an attempt to turn the mem-
bers 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 in-
formation about members from the employer rather than from
the 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 Da-
vies 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 num-
bers. She invited Davies to show her 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 animos-
ity and threats. (Jt. Exh. 6.)
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 wrote a summary of the meeting afterward. (GC
Exh. 3; R. Exh. 17.) Schofield said the Union knew the Com-
pany’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

14 McCulough testified the meeting was to discuss eight grievances
and her notes say seven. (Tr. 315; R. Exh. 17.) I rely on Davies’ con-
temporaneous notes that reflect discussion of six grievances.
15 McCullough recalled they did not resolve any grievances, but Da-
vies’ contemporaneous notes reflect otherwise. (Tr. 316, 334.)
J&J SNACK FOODS HANDHELDS CORP. 9
with somebody in her office and a couple of 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.)
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 start-
ed 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.)
At one point Schofield stated that the Company was just try-
ing 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 some-
thing 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 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 antiunion antiemployee employer. (Tr.
143.) At one point in the meeting, Schofield said she was go-
ing 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 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.)
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 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 call-
ing her stupid he called her stupid and unable to perform her
job.” McCullough noted Davies’ comments about the employ-
ees not knowing Schofield, and voiced her disagreement. She
also expressed her opinion, by way of some examples, that
Davies acted in an unconstructive manner during the grievance
discussions, and commented that he didn’t care 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 tolerat-
ed. The letter referenced Davies calling Schofield names, call-

16 Davies denied making comments about seeing the plant close for-
ever. As discussed below, I find he made such a comment. (Tr. 83.)
ing 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.)
On April 22, 2014, there was a step-3 meeting over the al-
leged 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 resold. Hawks
stated he said no such thing, and that the Union provided the
prosecutor with the same information it provided to the Com-
pany. 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:
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 re-
sorts to intimidation, coercion, and abuse, which typically ex-
tends toward their wives, families, and dogs too. Which kind
are you? 18
(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 be-
tween the Company and the Union. (Tr. 378.)
I. Changes to Davies’ Access and Ban from Facility
On April 22, Davies visited the facility. After he had been in
the plant for a while, he received an email from Ligon with a
letter attached. In the letter, Ligon stated that, due to Davies’
violation of the collective-bargaining agreement, it was neces-
sary 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 confine his visits to the cafeteria area, and
Ligon instructed that all other areas were considered work are-
as, namely the laundry room, training room, and the hallway
where employees clock in and out. Finally, Ligon asked Da-
vies 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.)

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.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ligon and Davies saw each other later that day. Davies re-
minded Ligon that they had a longstanding practice of visita-
tion, and Ligon said, “My comment is good.” (Tr. 389.)19 Da-
vies 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 un-
pleasant, and Ligon responded, “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 sug-
gestion went to Dairy Queen to have a Blizzard. He also called
Hawks and 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 reselling it. (R. Exh. 14.) Hawks did not
have any information, so he did not 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. 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 mem-
bers working at the plant. Davies further stated that union rep-
resentatives 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, 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 Da-
vies’ actions the previous day. Sullivan reported that Davies
called Schofield a liar, and got into a loud shouting match with
Ligon, chased after him, and called him an ass. The email fur-
ther 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 tres-
pass. He instructed Hawks to appoint another representative
and to respond directly to him. (GC Exh. 4.)
On April 24, Gerard Law, J&J’s senior vice president, sent a
letter to all employees telling them that the Company had in-
formed Davies he was no longer permitted on the premises.
Schofield and Garcia placed a copy of the letter in each em-
ployee’s mailbox. The letter stated that any attempt by Davies
to visit the plant would be considered trespass. Law further
conveyed 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 in-

19 The transcript incorrectly uses “as” instead of “is” in this sen-
tence.
formation. 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 company on its
efforts to run the plant safely and efficiently because those
efforts were making employees ‘unhappy.’” (Emphasis in orig-
inal.) He added that Davies said it was “better to have employ-
ees 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 “unprofes-
sional, shocking, and disgraceful behavior during a grievance
meeting” the preceding 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 in-
sults, 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 mem-
bers of the administration, and thanking them for their service,
and instructing them to contact HR with any 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 representative for the bargain-
ing unit employees at J&J, and that the Union would not toler-
ate the Company’s interference with the Union’s internal af-
fairs. Hawks notified Sullivan that, in addition to Davies, busi-
ness representatives Jaime Olvera and Russell Shjerven, as well
as himself, would be representing the bargaining unit and mak-
ing periodic trips to J&J. Hawks asserted that Ligon and
Schofield were hostile and aggressive toward him and Davies at
the 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 un-
ion bulletin board. It informed the employees that manage-
ment’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 repre-
sentative. He concluded by asking the employees to contact
him or a shop steward with any questions. (GC Exh. 7.)
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
J&J SNACK FOODS HANDHELDS CORP. 11
the names of employees who had stolen product from the plant
and resold it. He requested that the grievance be expedited to
arbitration. (R. Exh. 13.)
J. June 5 Meeting
On June 5, there was a grievance meeting regarding employ-
ee Tom DeLay.20 Hawks and Olvera were present for the Un-
ion. 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, Ligon 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 ANALYSIS
A. Credibility Legal Standards
A credibility determination may rest on various factors, in-
cluding “the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
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 credi-
bility 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 749 (2d Cir. 1950).
Where there is inconsistent evidence on a relevant point and
resolution turns on credibility, my credibility findings are in-
corporated in context into my legal analysis below.
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 employ-
ees that it would 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 Sec-
tion 8(a)(5) and (1). Finally, paragraph 9(c) alleges that on
about April 23, 2014, the Respondent 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:
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 adjustment and

20 This meeting occurred after the time period relevant to the allega-
tions before me. The substance of the meeting is not material, but I
have included comments made at the meeting because they go to credi-
bility, as detailed infra.
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 be-
longs to the employee and the union, in the absence of extenu-
ating 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 Pacific 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 em-
ployer intermeddling” in this choice. Dal-Tex Optical Co., 130
NLRB 1313, 1319 (1961). “Employees have as clear a 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 exclu-
sion of a union representative may also violate the Act. In
Frontier Hotel & Casino, 309 NLRB 761 (1992) enfd. in rele-
vant 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 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 at-
tempts by Davies to enter the facility 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 Davies’ expulsion, which dove-
tails with the defense the Respondent argues here. Law’s letter
states, in relevant part, “Unfortunately, at this stage, Mr. Da-
vies’ continued insults, obscenities, and defamatory statements
have Sage Development Co created so much ill will in the rela-
tionship between the parties that good-faith bargaining is now
impossible with him acting as your spokesman.” (Jt. Exh. 11.)
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 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 Devel-
opment Co., 301 NLRB 1173, 1189 (1991) (It is well-
established that burden of proving affirmative defense rests
with the party asserting it).
In Sahara Datsun, 278 NLRB 1044 (1986), the Board found
that refusal to deal with a particular individual may be justified
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when there was an unprovoked physical assault and unsubstan-
tiated 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 get-
ting out from behind her desk for a short period. Likewise, in
Victoria Packing Corp., 332 NLRB 597 (2000), a union repre-
sentative engaged in a shouting match with the company’s pres-
ident, 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 bargain-
ing process itself untenable,” and stated that “[f]or better or
worse, the 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 Da-
vies’ removal occurred during the April 10 grievance meeting
detailed above. There are some credibility disputes regarding
what, precisely, Davies said. I note that even if I credited the
Respondent’s version of events, I would not find Davies’ con-
duct 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 “monolin-
gual 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 inference that
her testimony would not be favorable to the Respondent.21
The Respondent relies on the only other person who was pre-
sent at the meeting, McCullough. Her summary of the meeting,
however, does not contain this term, and states, “Without call-
ing 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.22 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 testimo-
ny. 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 decline
to find that Davies referred to Schofield as a “monolingual
idiot.”

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 Auto-
mated 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 monolin-
gual idiot’ or something to that effect.” (Tr. 317.)
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 com-
ments calling into question 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.
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 contemporane-
ous summary about the meeting. The same holds true for
McCullough’s testimony that Davies called Schofield a liar.
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 talk-
ing about. You—what you’re 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 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.
Moreover, Davies’ reference to D’Angelo as an “ass” is not
sufficiently egregious to remove him as the Union’s representa-
tive.23 Long Island Jewish Medical Center, supra. Here, Da-
vies’ “choice of language, while strong and perhaps intemper-
ate, was not so offensive, flagrant, violent, or extreme as to
render him unfit for further service.” Transcon Lines, 235
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

23 The Respondent asserts that this comment was made with the in-
tent 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 be-
tween the Union and the plant, and he thought Fronjian 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, wheth-
er it’s labeled as alleged gender-based harassment or not, Davies’ con-
duct did not violate the Act under the standards the Board applies.
J&J SNACK FOODS HANDHELDS CORP. 13
her meeting notes.25 One of 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 meet-
ing, 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 stat-
ed that Davies pointed out that Ligon was part of the Hostess
debacle, prompting Ligon to say he was “fixin” to stop the
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 are in the record, and I
therefore credit his contemporaneous version of what occurred,
which is supported by his testimony, and generally corroborat-
ed 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. Ac-
cording to McCullough’s notes, the “fixin” comment and ensu-
ing mockery of it took place on June 5, during a meeting Da-
vies did 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 sub-
stance of the various meetings. He testified that the meeting
where Hawks made his comment about the two types of man-
agers 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 expla-
nation of her presentation’s topic or substance, is outweighed
by Davies’ notes and the supporting 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 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.
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

25 I do not find McCullough was intentionally trying to be untruth-
ful, but instead observed that she was nervous and confused.
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 Da-
vies did not attend. Finally, the Respondent 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 cou-
pled 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 Respondent cannot justify its decision to refuse to
recognize Davies on this comment. Long Island Jewish Medi-
cal Center, supra at 72.
The Respondent cites to CBS, Inc., 226 NLRB 537, 539
(1976), to argue that Davies’ pattern of harassing, discriminato-
ry, and hostile conduct presented a “clear and present danger to
the bargaining process or would create such ill will as to make
bargaining impossible or futile.” (R. Br. 10.) That case, how-
ever, involved a conflict of interest regarding the composition
of a bargaining committee because one of the committee mem-
bers 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 create ill will and make good-faith
bargaining impossible. Moreover, it is undisputed that no bar-
gaining occurred before the Respondent refused to recognize
Davies as the Union’s representative and barring him from the
premises. Accordingly, I find that the 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 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 inter-
fered with the employees’ Section 7 rights. I therefore find
that, by the conduct alleged in complaint paragraph 6(a), Re-
spondent violated Section 8(a)(1) of the Act, and by the con-
duct alleged in paragraphs 8(b), and 9(c), the Respondent vio-
lated 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 Re-
spondent, by the letter Law sent on April 24, 2014, denigrated
and disparaged the Union in order to undermine its employees’
support for the Union, encouraged employees to abandon sup-
port for the Union, and promised, by soliciting employee com-
plaints and grievances, its employees increased benefits and
improved terms and conditions of employment if they aban-
doned support for the Union and its authorized representative,
in violation of Section 8(a)(1).
“Words of disparagement alone concerning a union or its of-
ficials 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
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union in the eyes of employees. See Lehigh Lumber Co., 230
NLRB 1122 (1977). The employer’s freedom under Section
8(c) of 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 Behav-
ioral Development, 347 NLRB 35 (2006). In NLRB v. Gissel
Packing, 395 U.S. 575, 617 (1969), the Supreme Court stated:
[A]ny balancing of the employer rights of free speech and the
rights of employees to be free from coercion, restraint, and in-
terference 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.
To begin with, I find the letter misrepresents and/or exagger-
ates 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 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 rather see the plant “close forever than cooperate
with the company on its efforts to run the plant safely and effi-
ciently because those efforts were making the employees un-
happy” 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, 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 prac-
tice charges threatened the plant’s viability. McCullough’s
notes reflect Davies threatening to file charges over an infor-
mation 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 information regarding Urincho’s grievance. From the con-
tent and tone of McCullough’s notes, it is apparent the disa-
greement morphed into something broader than this one infor-
mation request. Specifically, the preponderant evidence shows
that Davies and Schofield had a disagreement over the Re-
spondent’s perception that the Union was harassing the Com-
pany with baseless requests and complaints, and the Union’s
perception that it was representing its members and it 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 clos-
ing down.26 I also find it was part of a robust exchange be-
tween him and Schofield about whether the Union was using
the grievance process frivolously and threatening unfair labor
practice charges disingenuously.
Law’s letter also contains other misstatements and mischar-
acterizations. 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 unilat-
eral changes to his plant access by stating that Davies “refused
to provide the company even the common courtesy of notifying
management when he arrives at the plant.” I find these mis-
statements and half-truths denigrated Davies in the eyes of the
Union’s members and undermined their support of their collec-
tive-bargaining representative.
The most transparently false aspect of the letter is Law’s as-
surance to employees that it 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 be-
haved offensively, and (3) bargaining with Davies was now
impossible. Law concluded by thanking the employees for
their dedication, and directing them to contact certain individu-
als in human 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 representative in the eyes of its employee constitu-
ents, 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 Sau-
sage Co., 275 F.2d 229, 233 (5th Cir. 1960), and NLRB v. Fitz-
gerald Mills Corp., 313 F.2d 260, 268 (2d Cir. 1963); see also
American Meat Packing Corp., 301 NLRB 835, 839 (1991);
Hospital Shared Services, Inc., 330 NLRB 317 (1999); Ad-
vanced Architectural Metals, Inc., 351 NLRB 1208 (2007).
The Charging Party further argues that the Law’s letter con-
stituted direct dealing, in violation of the Act. 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 establish-
ing or changing wages, hours, and terms and conditions of em-
ployment or undercutting the Union’s role in bargaining; and
(3) such communication was made to the exclusion of the Un-
ion.” Permanente Medical Group, 332 NLRB 1143, 1144
(2000), citing Southern California Gas Co., 316 NLRB 979
(1995). In the instant case, Law 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

26 When he stopped himself in his testimony, he proceeded to ram-
ble 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.
J&J SNACK FOODS HANDHELDS CORP. 15
paragraph 6(b)–(d) of the complaint.27
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 indicate
whether they wanted to share their contact information with the
Union, and (b) soliciting them to communicate their shift pref-
erences in a manner that implied that whether they would be
granted their shift preference depended on whether they indi-
cated their contact information could be shared with the Union.
As noted above, the Board’s criteria for establishing unlaw-
ful 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.
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 prefer-
ences for bracket 6 employees were to be requested each Janu-
ary according to the collective-bargaining agreement. The
Respondent gave no reason for resoliciting this information
rather than just responding to the Union’s request.
As for the employees’ contact information, “[i]t is well es-
tablished that the addresses and phone numbers of bargaining
unit employees are presumptively relevant for purposes of col-
lective bargaining and must be furnished upon request of the
bargaining representative.” River Oak Center for Children,
Inc., 345 NLRB 1335 (2005); see also La Gloria Oil & Gas
Co., 338 NLRB 858 (2003). Instead of providing the infor-
mation, 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 with the
redundant shift-preference request establishes that the Re-
spondent violated the Act as alleged in complaint paragraph
7.28
D. Alleged Unilateral Changes
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 vio-
lation of Section 8(a)(5) and (1) of the Act.

27 I note that the General Counsel asserted only a violation with re-
gard to Section 8(a)(1) with regard to these allegations, but the Charg-
ing Party argued there was a violation of Section 8(a)(5) and (1). Be-
cause 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.
28 The Charging Party argues that the Respondent failed to provide
the Union with necessary and relevant information, but this is not al-
leged in the complaint. (CP Br. 42–43.)
1. Food product samples
Subparagraph 9(a) alleges that, around February or March
2014, the Respondent ceased its practice of providing its em-
ployees, at no cost, with food products from the test kitchen and
unsalable food products.
Well-settled law provides that an employer may not change
the terms and conditions of employment of represented em-
ployees 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 governing collective agreement is
immaterial where satisfactorily established by practice or cus-
tom. See Citizens Hotel Co., 138 NLRB 706, 712–713 (1962),
enfd. 326 F.2d 501 (5th Cir. 1964); Frontier Homes Corpora-
tion, 153 NLRB 1070, 1072–1073 (1965); Central Illinois Pub-
lic Service 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 condi-
tions of 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 Shipping Co.,
291 NLRB 489, 493 (1988); DMI Distribution of Delaware,
Ohio, Inc., 334 NLRB 409, 411 (2001). This is no less true
where the practice is denominated a “privilege,” voluntarily
instituted or bestowed by the employer. Central Illinois Public
Service Co., 139 NLRB at 1415. A past practice must occur
with such regularity and frequency that employees could rea-
sonably expect the “practice” to continue or reoccur on a regu-
lar 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 es-
tablished past practice. The record is undisputed that, except
for a couple months in early 2012, the Respondent has consist-
ently 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, however because the duty to bargain
only arises if the changes are “material, substantial and signifi-
cant.” Alamo Cement Co., 281 NLRB 737, 738 (1986); Flam-
beau 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).
“The availability of food during working hours and the con-
ditions 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
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB No. 105 (2013), affd. 361 NLRB No. 54 (2014), the
employer had a practice of providing hot lunches 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, 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 Industries, Inc., 321 NLRB 1394
(1996) (elimination of coffee and donuts on paydays unlawful
unilateral change).
The Respondent cites to Weather Tec Corp., 238 NLRB
1535, 1536 (1978), to support its contention that it did not im-
plement 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 during any of the bargaining ses-
sions over the course of 10 months of bargaining. Here, there
was an established past practice and the parties were not en-
gaged 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.29
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 situa-
tions like the present one, where a contract has been negotiated
and the issue is a change in terms and conditions in employ-
ment, the framework in RBE Electronics of S.D., Inc., 320
NLRB 80 (1995), applies. The Board in RBE stated:
[W]here we find that an employer is confronted with an eco-
nomic exigency compelling prompt action short of the type
relieving the employer of its obligation to bargain entirely, we
will hold under the Bottom Line Enterprises exigency excep-
tion, 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 im-
passe on the matter proposed for change.
Id. at 82 (footnotes omitted).
In the instant case, I find no compelling exigency existed.
The Respondent acknowledged that the cooked food from the
QA line had never been taken from the facility and resold.
Moreover, assuming this was a concern, the Respondent was
obligated to bargain with the Union prior to unilaterally chang-

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.
ing 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.
The Respondent cites to Murphy Oil USA, Inc., 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.
Finally, the Respondent contends that there was not an un-
broken 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 oc-
curred with 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 ces-
sation of food samples from the QA lab.
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 consum-
ing or taking home unsalable products, and the Respondent’s
witnesses all testified there was no such practice. This is sup-
ported by the petition Davies presented, signed by 68 employ-
ees, 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.
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 ad-
vance notice of the dates of their planned visits to the facility,
the time of their planned arrival, 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) author-
ized 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 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 meaning of Section 8(d) of the Act
and is a mandatory subject of bargaining. Bethlehem Steel Co.,
136 NLRB 1500, 1502 (1962), enfd. 320 F.2d 615, 620 (3d Cir.
1963). See also Westinghouse Electric Corp., 141 NLRB 733,
J&J SNACK FOODS HANDHELDS CORP. 17
735–736 (1963), reversed on other grounds 325 F.2d 126 (7th
Cir. 1963); Motoresearch Co., 138 NLRB 1490, 1492 (1962); J
& H Rainwear, Inc., 273 NLRB 497 (1984), and Houston Co-
ca-Cola Bottling Co., 265 NLRB 766, 778 (1982). “[A] unilat-
eral change in an employer’s policy permitting access by union
representatives to its premises is a unilateral change in the em-
ployees’ 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-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 griev-
ances.” It further states, “Union representatives shall contact
the Plant Manager or his designated representative prior to
entry.”
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 Prod-
ucts, Inc., 331 NLRB 1546 (2000). In Resco, the Board de-
scribed its method of interpreting collective-bargaining agree-
ments as follows:
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 evi-
dence, such as the parties’ bargaining history and past prac-
tice. When there is no extrinsic evidence, the 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 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 “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 the plant by checking in with the staff
at reception. As such, the past practice has established a mean-
ing for the plant manager’s designated representative for pur-
poses 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 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 uncontro-
verted 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 repre-
sentatives visiting the facility without preannouncement 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 plant as follows: “The Company shall
admit to the plant during working hours any authorized repre-
sentative(s) of the Union for the purpose of ascertaining wheth-
er or not this Agreement is being observed, and to assist in
adjusting grievances.” (Emphasis added.) Based on the undis-
puted 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 was
scheduled to work.
The collective-bargaining agreement does not directly ad-
dress the duration of the Union’s visits to the facility, but re-
quire visits to be on “non-working time so that there shall be no
interference with or interruption of normal operating condi-
tions.” The Respondent did not submit evidence that there was
interruption of normal operating conditions. The only evidence
presented is that on April 22, Ligon saw Davies talking to Car-
men 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.
With regard to location of the visits, the collective-
bargaining agreement requires that the Union’s authorized vis-
its occur in “non-working areas” of the plant. The evidence
establishes that the union representatives’ established past prac-
tice was to visit employees in the cafeteria, 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. Clear-
ly, there are areas of the facility other than the cafeteria that can
only be categorized as nonworking areas, and the restriction of
Davies from these areas is a unilateral change from established
past practice.
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
discussing a change to a union representative’s access to the
breakroom, “a unilateral change in the past practice of permit-
ting union access is a material change about which an employer
is obligated to bargain.” Here, by requiring management ap-
proval 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, 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 re-
quirement is a way to make certain managers know when and
with whom meetings between the union agent and unit employ-
ees occur.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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 sub-
stantial 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 facility, and once inside, their move-
ments within the facility were unrestricted. The restrictions in
the instant case, detailed above, were significantly more exten-
sive.
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
complaint paragraph 9(b).
E. The Respondent’s Adverse Inference Request
The Respondent has requested that I draw an adverse infer-
ence based on the Union’s failure to instruct Olvera to look for
emails and other responsive documents to its subpoena re-
quests. 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.
Jaime Olvera was not appointed as a business representative
for the unit members at J&J on April 25, 2014. This postdates
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 any-
one 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 prejudiced the Respondent. See CPS Chemi-
cal Co., Inc., 324 NLRB 1018, 1019 (1997), enfd. 160 F.3d 150
(3d Cir. 1998) (no prejudice suffered by nonproduction). For
this reason, I decline to draw an adverse inference.
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.
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; (c)
denigrating and disparaging the Union; (d) encouraging em-
ployees 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

30 For the same reason, this case is distinguishable from National
Sea Products, 260 NLRB 3 (1982).
the Union, the Respondent has violated Section 8(a)(1) of the
Act.
4. By: (a) soliciting employees to indicate whether their con-
tact 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 that union repre-
sentatives provide the plant manager with 24-hour 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) implement-
ing a requirement union representatives visit the plant during
administrative hours; (g) implementing a requirement that un-
ion representatives confine their visits to the cafeteria; (h) im-
posing a requirement that 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.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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.
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 sup-
port for the Union and its representative; and promised employ-
ees, by soliciting employee complaints and grievances, in-
creased benefits and improved terms and conditions of em-
ployment if they abandoned their support for the Union, the
Respondent will be ordered to cease and desist from these ac-
tions.
Having solicited employees to indicate whether their contact
information could be shared with the Union; solicited employ-
ees to communicate shift preferences directly to the Respondent
in a manner that implied that granting the shift preference de-
pended on whether they indicated 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 plant manager with 24-hour
notice of their visits to the facility; implemented a requirement
that union representatives sign in and out of the plant with ei-
ther the plant manager or the human resources manager; im-
plemented 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 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
J&J SNACK FOODS HANDHELDS CORP. 19
entire record, I issue the following recommended31
ORDER
The Respondent, J & J Snack Foods Handhelds Corp., Wes-
ton, Oregon, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Bypassing Teamsters, Warehousemen, Garage Employ-
ees and Helpers, Local Union No. 839, affiliated with Interna-
tional Brotherhood of Teamsters (the Union) and dealing with
its employees directly regarding their wages, hours and work-
ing conditions;
(b) Soliciting grievances from employees, and promising to
remedy them;
(c) Disparaging or denigrating the Union;
(d) Making changes in employees’ wages, hours and work-
ing conditions without bargaining with the Union;
(e) Making changes to the access policy in the collective-
bargaining agreement without bargaining and reaching agree-
ment with the Union;
(f) Refusing to meet with, recognize and/or bargain with Un-
ion Business Representative, Rich Davies (Davies), or any
other individual designated by the Union; and
(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 em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Meet with, recognize and bargain with Davies as the rep-
resentative of its employees;
(b) Restore all of Davies’ access rights that he had prior to
April 23, 2014;
(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 test kitchen; and
(e) Within 14 days after service by the Region, post at its fa-
cility in Weston, Oregon copies of the attached notice marked
“Appendix”32 in both English and Spanish. Copies of the no-
tice, on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, 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 distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-

31 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. 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 Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since 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.
Dated, Washington, D.C. March 13, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT 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 deal-
ing with us regarding wages, hours, and other working condi-
tions 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 work-
ing 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 fa-
cility without first notifying the Union and providing an oppor-
tunity to bargain.
WE WILL NOT refuse to meet with, recognize and/or bargain
with Union Business Representative Rich Davies (Davies) or
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any other individual designated by the Union as your bargain-
ing representative.
WE WILL NOT ban Davies from the premises or the plant and
WE WILL NOT threaten Davies with trespass if he visits the facili-
ty.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
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.
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,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.