K.B. Specialty Foods Co.

National Labor Relations Board - Board Decisions

Jul 16, 2003

339 N.L.R.B. 740 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
The Kroger Co., d/b/a K.B. Specialty Foods Co. and
United Food and Commerical Workers Union
Local 700, a/w United Food and Commercial
Workers International Union, AFL–CIO. Cases
25–CA–27730–1 amended, 25–CA–27875–1
amended, 25–CA–27897–1 amended, 25–CA–
27943–1 amended, 25–CA–27999–1, and 25–CA–
28110–1 amended
July 16, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On September 30, 2002, Administrative Law Judge
Margaret M. Kern issued the attached decision. The
Charging Party filed exceptions and a supporting brief.
The Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Kroger Co., d/b/a K.B.
Specialty Foods Co., Greensburg, Indiana, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Michael Beck, Esq. and Rebecca Ramirez, Esq., for the General
Counsel.
Rodolfo R. Agraz, Esq. and Kevin S. Joyner, Esq., for the Re-
spondent.
Jerius M. Gilden, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in Greensburg, Indiana, on June 17, 18, 19,
20, and 21, 2002. The consolidated complaint, which issued on
May 21, 2002, was based on unfair labor practice charges and

1 The Charging Party 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.
2 The Charging Party’s exceptions are limited: it argues only that
the judge erred in finding that the General Counsel failed to establish
that the Respondent condoned the acts of violence that occurred on
June 27, 2001.
amended charges filed on July 26, August 28, September 27,
October 15 and 30, November 5, 6, and 13, and December 3
and 21, 2001,1 and on January 9, February 13, March 25, and
May 14, 2002, by United Food and Commercial Workers Un-
ion Local 700, a/w United Food and Commercial Workers In-
ternational Union, AFL–CIO (the Union) against The Kroger
Co., d/b/a K.B. Specialty Foods Co. (Kroger or KB or Respon-
dent).
It is alleged that from June to October, in response to an or-
ganizing campaign, Respondent engaged in multiple acts of
conduct violative of Section 8(a)(1) of the Act, including
threats, interrogations, the creation of the impression of surveil-
lance, and the promulgation of an unlawful no solicitation rule.
It is alleged that on June 27 Respondent directed and encour-
aged antiunion employees to use their vehicles to run over pro-
union employees and union representatives engaged in hand
billing. It is further alleged Respondent condoned antiunion
employees threatening the prounion employees engaged in
hand billing, throwing rocks and hot ashes at them, and setting
fire to their literature in violation of Section 8(a)(1). Finally, it
is alleged that Respondent discharged Barbara Danforth on
November 15, and suspended and discharged Ruth White on
December 1 and 3, because of their union activities. Respon-
dent denies all of the 8(a)(1) allegations. It admits that it dis-
charged Barbara Danforth on November 15, 2001, but claims it
did so because she violated Respondent’s attendance policy,
and not for any unlawful reason. Respondent denies that it sus-
pended and discharged Ruth White for unlawful reasons, and
avers that White was not employed by Respondent but rather
by a temporary employment agency.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Business
Respondent is engaged in the manufacture of deli and bakery
products at its facility in Greensburg, Indiana (facility). Re-
spondent employs approximately 250 production and mainte-
nance employees who work Monday through Friday on three
shifts, 7 a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m. Re-
spondent admits and I find that each of the following individu-
als are supervisors and agents of Respondent within the mean-
ing of the Act: Rick Padgett, general manager; Richard Gibson,
human resources manager; Rod Taylor, production manager;
Vince Moeller, production supervisor; Doug Bohman, produc-
tion superintendent; Bob Howard, first-shift supervisor; Mary
1 All dates are in 2001 unless otherwise indicated.
339 NLRB No. 88
K.B. SPECIALTY FOODS CO. 741
Kohlman, second-shift supervisor; and Tim Fleming, cake line
supervisor.
B. The Organizing Effort
The Union began organizing Respondent’s employees in
March and it is not disputed that Respondent’s managers and
supervisors were aware of the organizing effort at all times
relevant to this case. In May, Respondent’s attorneys conducted
training sessions with managers and supervisors to educate
them about proper and improper conduct during a union organ-
izational campaign.
C. June Informational Meetings
1. Facts
Respondent conducted a number of informational meetings
with employees about the union campaign over a period of
months. Padgett testified that at the June meetings, he read and
strictly adhered to a prepared text, and he used an overhead
projector as an aid. He answered questions posed by employ-
ees, and when he did so, he spoke extemporaneously. Padgett
covered the topics of union dues and checkoff, union shops,
bargaining, and strikes.
Jennifer Turner, a second-shift employee in the bake cake
area, testified that she attended two meetings in June conducted
by Padgett a week apart. At the first meeting, according to
Turner, Padgett said he did not want employees to vote for a
union. He believed in the Company, he believed in the employ-
ees, and he believed that the reason employees were there was
to support their families. He said he did not want to see em-
ployees lose anything that would hurt their families. Employee
Lou Eva Taylor asked the question if there were a strike, and
the issues could not be resolved, would the plant close. Padgett
responded if nothing could be settled during the strike the plant
would be closed. In response to another employee’s question,
Padgett said that no employee would be allowed to cross a
picket line and that the products manufactured at the facility
would be manufactured by another company. Turner testified
that at the second meeting she attended in June, Padgett said
“basically the same thing.” Turner observed that at both meet-
ings Padgett stood behind a podium and it did not appear to her
that he read from a prepared text. Rather, it appeared to her that
his remarks were “basically coming off the top of his head.”
On cross-examination, Turner acknowledged that she had
given three pretrial sworn statements, and in none of those
statements did she mention attending a second meeting. She
acknowledged that when Padgett spoke about strikes, he said
that Kroger makes contingency plans and that part of those
plans can be to move product around.
Lou Eva Taylor testified that she attended a meeting con-
ducted by Padgett, but could not recall if Turner was present at
that meeting. Taylor asked a question about picket lines, but
could not recall at the time of her testimony the exact question
she asked or the answer given. She never heard Padgett say the
plant would close.
Padgett has either worked in or managed Kroger manufactur-
ing facilities for over 28 years and he managed a unionized
facility for 11 years. Padgett testified that at one of the em-
ployee meetings, Lou Eva Taylor asked if there were a strike,
could employees cross a picket line. He testified he told Taylor
he could not answer that for her, but went on to explain “that in
Kroger manufacturing, whenever there are strikes or threats of
strikes, the Kroger Company puts together contingency plans
whereby to meet our customer needs. We can shift production
to other areas or be able to cover production in other areas,
again, to meet our customer needs.” Padgett denied saying that
employees could not cross a picket line.
2. Analysis
Turner’s testimony was not credible. There was an inherent
contradiction in her twin assertions that Padgett talked “off the
top of his head” at both meetings, but repeated the same exact
threats at both meetings. When coupled with the fact that she
never mentioned the second meeting in three pretrial affidavits,
her testimony is not believable. I credit Padgett’s more credible
testimony that he did not threaten employees with plant closure,
nor did he threaten employees with job loss if they selected the
Union as their representative.
Nor do I find that Padgett’s statements amounted to a threat
to transfer production if employees selected the Union as their
representative. In response to a question about a possible strike,
Padgett stated that when there has been a threat of a strike in
the past, Kroger has put together contingency plans, and those
plans have included shifting production to other facilities in
order to meet customer needs. Padgett’s comments were based
on objective facts, i.e., Kroger’s past practice, and the shifting
of production to other facilities was couched in terms of cus-
tomer need and economic necessity. When considered in con-
text, Padgett’s comments cannot be reasonably viewed as a
threat of retaliation under the Supreme Court’s guidelines in
NLRB v. Gissel Packing Co., 395 U.S. 575, 616–620 (1969). I
therefore recommend dismissal of paragraph 5(c) of the com-
plaint.
D. June: Taylor/Adkins
1. Facts
Deborah Adkins is a production clerk on the first shift. She
testified that in her 23 years of employment, she has talked with
other employees about “anything and everything,” during
worktime and during breaks. The topics of discussion have
included sports, television, movies, and children. To her
knowledge, there has never been a rule prohibiting these types
of nonwork-related discussions.
In June, Adkins spoke to several employees, including Rose
Bowen, about joining the Union. Bowen testified she went into
the production office to get a marker. While there, Adkins
asked her if she wanted to sign a card and if so, she would bring
one in to give to her. Bowen reported this conversation to Rod
Taylor.
The next day, Adkins was summoned to Rod Taylor’s office
where she met with Taylor and Moeller. According to Adkins,
Taylor said he had heard she had been talking about “union
stuff” to some people. As soon as he said this, Adkins immedi-
ately said she wanted a witness present. Taylor said this was
not a discipline. He told her that she could not do that on com-
pany time and that he could terminate her for what she had
done. He said he would not terminate her that day, but the next

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
time she did it, he would terminate her. Adkins said she would
not do anything and left.
Rod Taylor testified that Bowen came to him and told him
Adkins had approached her on the production floor to sign a
card. Taylor went to the human resources department and spoke
with Richard Magnerd, from corporate human resources, and to
Dick Gibson. The three discussed the situation and, according
to Taylor, Magnerd told him that he needed to “sit [Adkins]
down and tell her on working time, you know, she can’t do
that.” Magnerd did not testify and Gibson, who did testify, was
not asked about this conversation.
Taylor testified that during his conversation with Adkins, he
said it had come to his attention that she had asked for a signa-
ture on a union card during working time. According to Taylor,
Adkins jumped up and demanded a witness be present. Taylor
said he was not there to take disciplinary action, and that all he
was there to do was to let her know that she could not do that
during working time on the floor. He told her that her break-
time and her lunchtime was her time, but during working time,
she could not do that. He added, if she continued to do this on
working time he had the ability to seek further disciplinary
action. Moeller’s account of this meeting was similar to Tay-
lor’s account. Moeller testified that Taylor instructed Adkins
that during working time there was to be no union activity.
Breaktime and lunchtime was her time, but there could be no
union activity on worktime. He too recalled Adkins asked for
someone to be with her, but Taylor said that was not necessary
because she was not being disciplined. Moeller denied that
Taylor said anything about termination.
Taylor has been employed by Respondent for 16 years. He
testified that Respondent has always drawn a distinction be-
tween employee solicitation on worktime versus nonworktime,
and it is this distinction that he communicated to Adkins. Tay-
lor admitted on cross-examination, however, that there was no
written policy making that distinction, and he could give no
specific instance when employees have ever been notified of
that distinction. Taylor was asked the following:

Q. Now the rule at KB is actually that you can’t solicit
anywhere on the premises. Isn’t that it?
A. I don’t know that.
Q. You’ve never seen that rule posted anywhere at
KB?
A. Not to my knowledge.

Taylor was then shown a photograph of a sign posted on Re-
spondent’s fence that reads: “Solicitation, trespassing or distri-
bution of literature by anyone in this parking lot or on these
premises is prohibited.” Taylor testified he could not recall
where that sign was located. When he was forced to admit that
he drove past the sign on a daily basis as he entered the prem-
ises to go to work, he testified, “If I’ve seen the sign I haven’t
read the sign.” Mary Kohlman has been employed by Respon-
dent for 17 years. Kohlman testified that for that entire period
of time that she has been employed, that sign has been posted
on Respondent’s fence.
2. Analysis
I credit the testimony of Adkins over that of Rod Taylor and
Moeller. Adkins testimony was direct and to the point, and she
was a credible, believable witness. In her 23 years of employ-
ment, she freely discussed nonworked-related matters during
working and nonworking time. After she spoke about the Un-
ion, however, Taylor told her she could not talk about the Un-
ion on “company time” and threatened to terminate her if she
did. Taylor’s denial that he made these statements is not credi-
ble.
Taylor testified that Respondent’s established rule is that
employees are allowed to solicit in nonwork areas during non-
worktime. Taylor was directly contradicted by Moeller who
testified that employees have always been free to talk about
whatever they wanted to talk about during worktime as long as
they worked. Taylor’s testimony was also contradicted by Re-
spondent’s no-solicitation/no-distribution rule which has been
posted on its fence for the past 17 years and which prohibits all
solicitation, and all distribution, anywhere on the premises at
any time. When Taylor was shown the photograph of the posted
sign, he became somewhat flustered, at first denying that there
was any such a sign, then claiming he didn’t know where the
sign was, and then weakly protesting that if he saw the sign he
never read it. This testimony was plainly not credible. Nor do I
credit Taylor’s testimony that he spoke with Magnerd and Gib-
son before talking with Adkins, and that they instructed him to
use the term “working time” as opposed to “company time.”
Magnerd was not called by Respondent to corroborate this tes-
timony, and Gibson, who was called by both the General Coun-
sel and by Respondent, was not asked about any such conversa-
tion.
I also discredit Moeller’s account of this meeting. Moeller
was present at the meeting between Taylor and Adkins to serve
as a witness for Respondent, and when he testified before me
regarding this meeting, he did so in a manner designed to ad-
vance Respondent’s interest. Moeller’s testimony that Taylor
did not threaten to terminate Adkins for talking about the Union
is not believable when juxtaposed with Adkins’ clear and
credible recollection that such a threat was made.
Taylor’s direction to Adkins that she could not discuss the
Union on “company time” was not only an unlawful departure
from Respondent’s established practice of allowing nonwork-
related discussions during working and nonworking time, but
was a facially overbroad prohibition. A rule prohibiting union
solicitation on “company time” is overbroad and presumptively
invalid because it is subject to the reasonable construction that
solicitation at any time, including breaktimes or other nonwork
periods, is prohibited. M.J. Mechanical Services, 324 NLRB
812, 813 (1997). Since Respondent has offered no evidence to
rebut the presumptive unlawfulness of the rule, I find Taylor’s
statement to Adkins violated Section 8(a)(1) of the Act. His
threat to discharge Adkins if she violated the rule also violated
Section 8(a)(1).2

2 The posted no-solicitation rule on Respondent’s fence is not the
subject of a complaint allegation, and the General Counsel did not
move at the hearing, or in his brief, to amend the complaint. Nor was
the matter fully litigated since the posting of the sign was used essen-

K.B. SPECIALTY FOODS CO. 743
Taylor’s statement to Adkins, that he had heard she had been
talking about “union stuff” to some people, is alleged to have
created the impression of surveillance. That Board’s test for
determining whether an employer has created an impression of
surveillance is whether the employee would reasonably assume
from the statement in question that her union activities had
been placed under surveillance. The Board looks not only to the
words used, but the context in which they were expressed.
Grouse Mountain Lodge, 333 NLRB 1322 (2001). I find Tay-
lor’s words would certainly lead an employee to believe that
management was peering over her shoulder, taking note of her
involvement in union activities, and in what particular way. The
context in which the words were spoken further adds to their
coercive nature. This conversation took place in the midst of
the Union’s organizing drive and the day after Adkins had
asked Bowen to sign an authorization card. Adkins was called
away from her duties and summoned to the office of a high-
ranking member of management where she was warned that if
she spoke about the Union again on companytime she would be
discharged. Any employee in this position would reasonably
assume that her union activities had been placed under surveil-
lance. Taylor’s statement therefore unlawfully created the im-
pression of surveillance and violated Section 8(a)(1).
E. The Events of June 27
1. The facts
a. The physical layout
The facility is located at the intersection of Broadway and
Seventh Street. A fence runs along the perimeter of the prop-
erty. The main door to the building, and the main gate, are lo-
cated on the Seventh Street side. There is a flagpole in front of
the main door, and there is an area of shrubs to the right of the
door.3 A distance of approximately 15 feet separates the shrub
area from the main gate. There is a parking area to the left of
the main gate, directly across from the front door and shrubs,
and a larger parking area is located to the right of the main gate.
b. General Counsel’s witnesses
By the end of June, union organizers had received a number
of signed authorization cards from employees from the first and
third shifts, but had received fewer cards from employees on
the second shift. At a meeting on June 26, lead organizer, Pat
Taylor, asked for volunteers to handbill at the facility the fol-
lowing night when second-shift employees were getting off
work. First-shift employees Ruth Fulton and Ruth Linger vol-
unteered.
Fulton, Linger, and three union organizers, Pat Taylor, Jes-
sica Leonard Gibbons, and Theresa Mertes arrived at the facil-
ity sometime between 11 and 11:15 p.m. on the night of June

tially as a means to impeach Taylor’s testimony. I therefore make no
finding as to whether the posted sign violates the Act.
3 Some witnesses described events from the perspective of a person
facing Seventh Street, others from the perspective of a person facing
the building. To be consistent, I have summarized all the testimony
from the perspective of a person standing on Seventh Street facing the
building.
27.4 Third-shift employees were entering the facility to report
to work, and second-shift employees were exiting the facility
through the front door.
(1) Testimony of Schwering and Holzback
Dacia Schwering and Jennifer Dawn Holzback worked to-
gether on the second-shift cake line. Holzback testified that as
their shift was ending, Schwering told her there were union
people outside, that the second shift did not want a union, and
there could be trouble. As they were getting ready to leave,
Kohlman was standing inside the front door and she and several
employees were laughing about something. Holzback testified,
“[Kohlman] told us that if they got in our way, that we could
just run them over.”
Schwering’s recollection was that it was Holzback who first
mentioned running people over. Holzback asked Kohlman,
“[D]o you want Eric to run over the union people with my
car?” According to Schwering, Kohlman responded, “[Y]eah, if
they get in your way, run them over.” Schwering replied, “I’m
not running over anybody.”
Holzback testified that after she left the building and was
walking toward her car, she saw employees throwing rocks at
the union representatives and she saw Kohlman sitting by her-
self on the curb laughing. Schwering, on the other hand, testi-
fied that when she and Holzback walked to their cars, Kohlman
was still inside the building. Schwering heard employees talk-
ing about throwing rocks but she did not see rocks thrown.5
(2) Testimony of Pat Taylor
Pat Taylor testified that as soon as the second-shift employ-
ees came through the front door they began cursing at the union
representatives, calling them whores and bitches and telling
them to go home. One employee, Lindsey Fonseth, came up to
her where she was standing at the gate and said if she was still
standing there when he got off he would run her over with his
truck. Taylor then observed Fonseth drive through the gate, rev
his engine, and fishtail the rear end of his truck. According to
Taylor, the skidding truck “almost hit” Mertes.6 Taylor also
observed employee Mike Raymer drive through the gate. When
he got in front of the union representatives, he revved his en-
gine for 3 to 4 minutes, creating a large amount of smoke and
causing bits of asphalt to fly up. Taylor testified these events
occurred prior to the time that Kohlman exited the building.7
According to Taylor, approximately 20 to 30 employees ex-
ited the building before Kohlman came outside. When
Kohlman did emerge, she walked toward the gate and asked the
union representatives what they were doing. Fulton said they
were hand billing and she offered a piece of literature to
Kohlman. Kohlman did not respond, walked back toward the
building, and sat down in front of the shrub area. Taylor then
4 In describing the events of that night, many witnesses referred to
these five individuals as the union representatives and I have adopted
that reference.
5 Both Holzback and Schwering were subsequently terminated for
excessive absenteeism. Holzback was terminated the next day, June 28.
Schwering was terminated in March 2002.
6 Mertes did not testify.
7 There are no complaint allegations regarding the manner in which
Fonseth and Raymer drove their vehicles that night.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
observed three or four unidentified employees who were sitting
and standing next to Kohlman throw rocks in the direction of
the union representatives. According to Taylor, a total of three
or four rocks were thrown.
After the rocks were thrown, Taylor testified that employee
Phillip Branum walked up to her and grabbed a stack of about
25 handbills out of her hand. She saw him walk over to the
shrub area, wad the handbills, and make two piles. He then lit
both piles and set two fires. After the fires were out, Taylor saw
Branum take a shovel, scoop up the ashes, and walk toward the
gate. She testified, “[H]e took the ashes and he brought them to
me and said, I could throw it to the right or throw it to the left
or I could throw it on you, but I am going to put it in front of
you.” Branum then placed the still-smoking ashes at her feet, so
close that she could feel the heat through her shoes.
Taylor denied that she or any of the other union representa-
tives yelled, raised their voices, or called employees “young
and dumb.” They kept their voices to a conversational tone and
tried to communicate the benefits of unionization to the em-
ployees.
(3) Testimony of Jessica Leonard Gibbons
Jessica Leonard Gibbons is a general organizer for the Inter-
national union. Gibbons testified that the second-shift employ-
ees who came out of the building at around 11:15 p.m. were
already “pretty hyped up.” They told the union representatives
to leave, to go home, called them whores and bitches, and
asked, “[W]here are the men at, you whores are out there.”
Although Gibbons was present at the facility on June 27 for
the entire period of time that Pat Taylor was there, Gibbons
made no reference in her testimony to any comment by Fon-
seth, nor to Fonseth skidding his truck in such a fashion as to
almost hit fellow organizer Mertes. Gibbons did testify that five
to seven employees threw between 20 and 30 rocks over a 10-
minute period, and that in addition to rocks, employees threw
lit cigarettes at the union representatives.
Like Taylor, Gibbons testified it was Branum who grabbed
the handbills out of Taylor’s hands, but she did not see who lit
the fires. She did see two fires burning and, after the fires were
out, saw Branum scoop the ashes and put them at Taylor’s feet.
Although she was standing right next to Taylor, Gibbons could
not recall whether or not Branum said anything as he was
dumping the ashes.
(4) Testimony of Ruth Linger and Ruth Fulton
Linger and Fulton have both been employed by Respondent
for over 20 years. Both were supportive of the Union’s organiz-
ing effort, both signed cards, and both attended union meetings.
Both women testified that as the second-shift employees left the
building, they started hollering at the union representatives and
calling them names. Whereas Linger testified that she did not
hear any union representative call employees “young and
dumb,” Fulton testified that there was “back and forth” between
the employees and the union representatives and that Pat Taylor
may have made the “young and dumb” comment and may have
said that Kohlman had brainwashed the employees.
Linger and Fulton recalled that Kohlman came over to where
they were standing by the gate, and Linger testified that
Kohlman said words to the effect that they “might as well
leave.” Kohlman then walked over to the shrub area. Linger
and Fulton gave estimates that from 10 to 30 employees stood
near Kohlman when she was at the shrub area. Some of them
threw rocks. Neither woman could say how many employees
threw rocks or how many rocks were thrown.
Fulton testified that when Fonseth came out of the plant, he
walked past them and said if they got in his way he was going
to run them over. Fulton and the other union representatives
responded they were not blocking the driveway and if he
wanted to leave, that was fine. According to Fulton, “he went
and got in his car and he left.” Fulton was asked if it appeared
to her that when he left he tried to run anyone over, and she
responded, “[W]e didn’t stand in his way.” Linger testified that
Fonseth drove through at a high rate of speed, swerving back
and forth, and “had we not jumped out of the way I am sure
someone would have been hit.”
Fulton and Linger testified that Raymer drove through the
gate and stopped his truck on Seventh Street, in front of where
they were standing. He spun his tires for several minutes and
that resulted in a large amount of smoke. Flying bits of asphalt
struck them and caused minor burns that did not require medi-
cal attention. During this incident, Kohlman was sitting at the
curb.
With respect to the fire-setting incident, Fulton testified that
unidentified employees set handbills on fire in the middle of the
parking lot, in the area between the shrubs and the gate. An
unidentified male got a shovel and took the smoldering ashes
out toward the gate. Mertes asked him what he was going to do
with the ashes, and according to Fulton, “he said I am just go-
ing to get rid of it, and he threw it out in front of us, you know,
so it wouldn’t be in the parking lot.” When asked to identify on
a photograph where the male threw the ashes, Fulton testified
he threw the ashes in the middle of the travel portion of Sev-
enth Street.

Q. Did he throw them past you, or at you?
A. I think he threw them past.
Q. And was anyone standing in front of the place
where he threw them? Was anyone standing at the spot—
A. No.
Q. —where he threw them?
A. No, I don’t believe so . . . no.

Linger testified that it was Branum who set the fire, and
when it burned down, Branum got a shovel and scooped up the
ashes. She testified:

A. He brought them over to the gate and acted like he
was going to throw them on us and I think Pat said, “I
wouldn’t do that.” Instead he threw them at her feet, and
he did that at least twice.
Q. He made at least two trips with the shovel?
A. Right.

There came a point that night when the commotion ceased
and the union representatives remained at the gate and hand-
billed. This period of calm lasted for some period of time and
employees gathered at the gate and discussed the pros and cons
of unionization with the union representatives. There were no
further incidents.

K.B. SPECIALTY FOODS CO. 745
c. Respondent’s witnesses
Eleven employee witnesses were called by Respondent, all
of whom were still employed by Respondent at the time of the
hearing.
(1) Testimony of Rose Bowen
When Rose Bowen exited the building, she saw Kohlman
standing by the flagpole. She heard her tell employees to “go
home, be safe, we’ve never had an accident so far.” According
to Bowen, although Kohlman does not usually stand outside at
night as employees are going home, she does regularly use the
expression “be safe” with employees when they are working.
Bowen walked past Kohlman, went to her car, and was the first
employee to drive through the gate to go home. She saw the
union representatives as she drove past them although it was
dark because one of the street lights was out.
(2) Testimony of Lindsey Fonseth and Hans Davis
Lindsey Fonseth testified that he exited the building at ap-
proximately 11:20 a.m. The union representatives were at the
gate and about 15 second-shift employees were already in the
parking area, both sides “hooting and hollering.” Kohlman was
about 10 feet behind him leaving the building, and he heard her
say, in a loud voice, “go home, be safe, don’t say anything.”
Fonseth denied walking over to the gate and telling the union
representatives that he was going to run them over if they got in
his way. He got into his truck and he was the second car, after
Bowen’s, through the gate. As he got to the gate, he put the
truck in neutral and revved the engine. As he did so, one of the
union representatives yelled, “[G]o, go, go.” When he got out-
side the gate, he “spun a patch” about 4 or 5 feet long. When
asked why he did this, Fonseth testified, “[B]eats me.”
Hans Davis rode home with Fonseth that night. Davis testi-
fied that Fonseth was ahead of him when he left the building
and Kohlman was already by the shrubs. He recalled Kohlman
calling to employees not to say anything to the union represen-
tatives, to leave them alone, not to start anything, and to be
safe. Davis recalled that Fonseth spun his tires twice, both
times on Seventh Street, after he had fully passed through the
gate. Davis made no reference in his testimony to any statement
by Fonseth about running over the union representatives.
(3) Testimony of Cathy Rice and Byron Caudill
Cathy Rice was not working on June 27, but drove to the fa-
cility to pick up fellow employee Byron Caudill. Rice testified
that the windows in her car were open. She heard Kohlman tell
employees to be safe going home, but she did not hear any
yelling by anyone. Caudill, on the other hand, heard the union
representatives call the employees young and dumb, and he
testified there was screaming back and forth. Caudill drove
Rice’s car to the gate, took a handbill from one of the union
representatives, and tore it up. The union representative called
him a “childish baby.” Caudill drove to the police station and
told the police they should go to the facility, “in case something
happened.” Caudill then went to a gas station, purchased a
camera, and drove back to the facility where he took pictures of
the activities still going on. When Caudill had the negatives
developed, the photos did not turn out and he threw them away.
(4) Testimony of Melissa Watson
Melissa Watson testified that she saw Kohlman by the flag-
pole and she heard her say, “go home and be safe.” Her stepfa-
ther picked her up and she went home. She did not notice the
union representatives at the gate.
(5) Testimony of Philip Branum
Philip Branum came out of the building at around 11:20 p.m.
and he heard yelling back and forth. He heard the union repre-
sentatives say the employees were young and dumb, and he
heard the employees call the representatives bitches and ass-
holes. He also witnessed Raymer spin his tires outside the gate
on Seventh Street. Branum was standing close to the gate when
he saw employee Matt Brossman snatch fliers out of one of the
union representative’s hands. He heard Kohlman call his name,
turned around, and saw a small fire. At Kohlman’s direction,
Branum found a shovel, walked over to the fire, stomped on the
ashes, and scooped them up. He walked to the left side of the
gate, looked at the union representatives who were standing on
the right side of the gate, and said, “[D]on’t worry, I’m not
stupid.” He threw the ashes on a grassy patch.
Branum testified that once the fire was put out the situation
calmed down and employees gathered at the gate to talk to the
union representatives. There was a question and answer period
that lasted for a few minutes after which everyone left.
(6) Testimony of Becky Stuart
When Becky Stuart left the building, many employees were
coming in, going out, hollering, cursing, and carrying on. She
saw Kohlman by the flagpole and heard her telling employees,
“just go on home.” Stuart was talking with a former employee,
Joanie Jordan, who was there that night to pick someone up.
They were standing in front of the shrub area, next to where
Kohlman was sitting, and as they were talking, Jordan picked
up a rock and threw it in the direction of the gate. Stuart did not
see any other rocks thrown.
Stuart testified she saw the employee who grabbed handbills
from the union representative and set them afire, but she re-
fused to identify that person. She was sitting next to Kohlman
when the fire started, and she witnessed Kohlman holler,
“[Y]ou can’t do that, put that out.” Stuart and other employees
poured soda on the fire and she saw “someone” scoop the ashes
with a shovel and put them on the grass to the left of the gate,
opposite from where the union representatives were standing.
(7) Testimony of Lydia Sue Ball
Lydia Sue Ball testified that as she stood at the shrubs with
other employees the union representatives yelled to come take
their fliers, and said the employees were young and dumb. Ball,
together with other employees, walked to the gate and everyone
was “talking and cussing and screaming back and forth.” While
Ball was at the gate, Raymer pulled through the gate and spun
his tires. The smoke was so bad it made her sick and she
walked back to the shrubs. She was standing next to Joanie
Jordan in front of the shrubs when Jordan threw a rock in the
direction of the gate. No one told Jordan to do it, no one com-
mented on it, and no more rocks were thrown. Ball testified that
when Jordan threw the rock Kohlman was sitting on the curb in

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
front of the shrubs, and a number of employees were standing
around Kohlman.
After the rock was thrown, Ball went to the large parking lot
to get her car and when she drove back toward the front of the
building, she saw employees putting a fire out. She heard
Kohlman tell Branum to put the fire out, and she saw employ-
ees pouring soda on the fire. Branum got a shovel and placed
the ashes on the grassy area to the left of the gate.
After the fire was out, Ball and other employees went to the
gate and sat on the ground talking with the union representa-
tives. Ball testified that several times that night she heard
Kohlman tell employees to go home.
(8) Testimony of Deanna Wilson
Deanna Wilson testified that Jordan was 5 feet from
Kohlman when she threw a rock, and that the fire was burning
at the time the rock was thrown. Wilson saw Branum scoop the
ashes and put them on the grassy strip to the left of the gate.
Wilson heard Kohlman repeatedly tell employees to go home.
(9) Testimony of Lou Eva Taylor
When Lou Eva Taylor left the building, employees were
standing at the gate talking with the union representatives.
Kohlman was seated in front of the shrubs and Lou Eva Taylor
asked her what was going on. Kohlman said the union people
were there and everyone needed to go home.
(10) Testimony of Mary Kohlman
Kohlman testified between the second and third shifts, her
supervisor, Doug Bohman, told her the Union was outside the
facility. Bohman was the top management official at the facility
that night. Kohlman called Gibson at home to advise him of
what was happening, and Gibson told her to go outside and to
make sure the union people did not block employees from en-
tering or exiting the parking lot.
Kohlman testified that Holzback and Schwering did not
work under her supervision, and she did not see them on the
night of June 27. Kohlman denied ever telling anyone to run
over the union representatives.
After speaking with Gibson, Kohlman walked toward the
gate and saw the three union organizers, Linger, and Fulton.
One of them yelled, “[H]ey Mary, you want a card, you want a
flyer,” and they laughed. Kohlman walked back to the flagpole
by the front door. She recalled that Rose Bowen was the first
one out of the building, followed by Fonseth. Employees then
followed in groups. She told them to “go home, be safe, we
don’t need any conflict, just go home.” After the last of the
employees exited the building, Kohlman went to the shrub area
and repeated her instruction to employees, “[Y]ou guys need to
go home.” She observed employees standing at the gate, yelling
back and forth with the union representatives. She heard the
union representatives say the employees were young and dumb
and couldn’t think for themselves, that management had brain-
washed them, and that Kohlman tells them what to do. She
heard the union representatives say the Union could get them a
$3 raise and free insurance. The employees yelled back and, by
Kohlman’s description, it was like “verbal volleyball.”
Kohlman saw Bowen drive her car through the gate, fol-
lowed by Fonseth. She heard Fonseth rev his engine, but did
not see Fonseth spin his tires. Raymer then drove through the
gate and made the turn onto Seventh Street. He drove several
car lengths down Seventh Street and spun his tires. She heard
one of the union representatives say, “[T]hat’s impressive, now
you are going to need new tires.” Kohlman did not recall seeing
former employee Joanie Jordan that night, nor did she see rocks
or cigarettes being thrown.
After Raymer spun his tires, Kohlman observed former em-
ployee Matt Brossman throw a stack of flyers on the ground
and light them in the area of the parking lot between the shrubs
and the gate. She jumped up and told him to put the fire out.
Employees poured soda on the fire and Kohlman told Branum,
who was standing right in front of her, to get a shovel. As he
did so, Kohlman emphatically told employees, “[W]e can’t
have this out here, you need to stop, you need to go home.” She
radioed to Bohman and told him to come outside. Kohlman
watched as Branum shoveled the ashes and walked toward the
gate. She saw him look at the union representatives and heard
him say, “I may be young and dumb, but I am not that dumb.”
He walked to the left of the gate and dumped the ashes on the
grassy area outside the gate. After the fire was out, the atmos-
phere became calmer and about 20 employees walked to the
gate and talked to the union representatives. The conversation
lasted a few minutes and when the union representatives started
walking down the road, the employees dispersed. Bohman ar-
rived to see the discussion that was taking place at the gate and
he saw the crowd disperse.
Kohlman was asked why she repeatedly told employees to
go home and be safe. She explained that a lot of them are
young and don’t like unions. She also said that in the year 2000
her shift did not have a single accident which was a great
achievement, and that in 2001 there had been only one acci-
dent. She explained that since most of the employees on her
shift had been employed less than 2 years it was an accom-
plishment to have such an excellent safety record.
d. Follow up to the events of June 27
On the night of June 27, Kohlman told Bohman what she had
observed and she wrote a note to Gibson detailing the night’s
events. The next day, Taylor, Gibson, and Padgett conducted
interviews of Kohlman, Bohman, and Assistant Supervisor
Trainee Attine Biehle. Padgett told Kohlman he was glad that
the fire had been put out and they needed to make sure that
something like this did not happen again.
On June 29, counsel for the Charging Party addressed a letter
to the General Counsel for Kroger. In that letter, counsel stated
that union staff members and employees had been attacked by
employees in the presence of supervisors, and that the attacks
had taken the form of rock throwing, threats of physical assault,
and the theft and burning of union organizing materials. On
July 9 or 10, Padgett received a faxed copy of this letter from a
lawyer in Kroger’s legal department. The lawyer asked Padgett
to supply documentation as to what had occurred, including
witness statements, which Padgett provided. At around the
same time, the Indiana State Police came to the facility to con-
duct an investigation based upon a complaint that had been
filed. Rod Taylor was asked to provide the videotape from Re-
spondent’s surveillance system for the night of June 27. Taylor

K.B. SPECIALTY FOODS CO. 747
retrieved the tape and turned it over to the police.8 The police
also came to the facility with a list of individuals they wanted
to interview, including Kohlman. Those individuals went to
police headquarters to be interviewed.
On July 13, Padgett addressed a letter to all employees that
read, in part:

I want to be clear about a few things: 1. Employees have an
absolute right to be opposed to the union. You have an abso-
lute right to tell the union NO. We encourage you to exercise
your right. Kroger Manufacturing employees have a long his-
tory of respectfully telling unions that they are not interested.
Physical confrontations have never been and will never be
condoned by Kroger. They can quickly get out of hand and
we do not need that here at K.B.

After June 27, Taylor, Gibbons, and Fulton handbilled at the
facility on several occasions without incident. On September 4,
the Decatur County prosecutor issued a memorandum in which
he concluded, based upon the police investigation, that no ac-
tion by his office was warranted.
Linger testified that on October 17, at a company meeting
conducted by Padgett and Gibson, Padgett referred to the fact
that unfair labor practice charges had been filed against the
Company in connection with the events of June 27. He said he
did not think anyone had done anything wrong. There might
have been a little rock throwing, a little tire burning, and name
calling, but nobody really got hurt so they were going to fight
the charges. By the time of this meeting, Linger and the other
four women who handbilled on June 27 had filed a civil lawsuit
against Respondent.9
No employee was disciplined for the events of June 27.
2. Analysis
a. Credibility
Eighteen witnesses testified to the events of June 27 and not
a single witness was wholly consistent with another. It is fair to
say that witnesses exaggerated the seriousness of the events if
they were disposed favorably to the Union, or minimized the
seriousness of the events if they were disposed favorably to the
Company. The clearest example of this is the rock throwing
that occurred and the number of rocks supposedly thrown. The
truth, no doubt, lies somewhere between the lone projectile
launched by an exemployee as testified to by Respondent’s
witnesses, and the meteor shower testified to by the General
Counsel’s witness, Gibbons. I have credited some witnesses
over others, and have credited portions of a single witness’s
testimony while discrediting other portions.
The central figure in these events is Mary Kohlman. The ac-
tions that she took, or did not take that night, are pivotal to the
determination of whether Respondent is responsible for any
acts of misconduct that might have been engaged in by the
antiunion employees toward the prounion employees. I have
carefully considered Kohlman’s testimony and her demeanor
on the witness stand, and I find Kohlman to be a believable and

8 It was discovered that the taping system had malfunctioned and
there was nothing on the tape.
9 It is not clear the date the lawsuit was filed.
credible witness. Her testimony was responsive, direct, and to
the point. She impressed me as a calm, almost placid individ-
ual, who had a strong sense of her responsibilities as a first-line
supervisor, but without an air of self-importance. She made a
notable concession against Respondent’s interests when she
readily admitted that Respondent has had an unlawful no-
solicitation/no-distribution rule posted on its fence for the past
17 years, a fact that was denied by her superior, Rod Taylor.
This enhanced her credibility in my view.
The most credible of the General Counsel’s witnesses was
Ruth Fulton. Unlike Pat Taylor and Jessica Gibbons who were
so clearly given to exaggeration as to render their testimony
almost wholly unreliable, Fulton was measured in her account
of what happened. Fulton appeared to be testifying from her
honest recollection which, at times, did not advance the posi-
tion of the General Counsel and the Charging Party. This fact
enhanced her credibility in my view.
Having thus identified Kohlman and Fulton as the two most
credible witnesses, I have used their testimony as a benchmark
for assessing other witnesses’ testimony and in determining
what happened on the night of June 27.
b. Kohlman’s alleged direction to employees to run over
the union representatives
Bohman was the most senior management official at the fa-
cility that night. He advised Kohlman that the Union was out-
side, and he remained available to Kohlman via radio. Kohlman
called Gibson for instruction, and Gibson told her to go outside
and to make sure that employees were able to leave and enter
the premises. Kohlman was aware that many of the employees
on her shift were against the Union, and she was alert to the
fact that tensions were running high. I credit her testimony that
she repeatedly told employees as they exited the building to be
safe and to go home. I discredit Schwering and Holzback’s
testimony that Kohlman told them if the union representatives
got in their way to run them over. Such a remark would have
been completely out of character for Kohlman who had a dem-
onstrated safety record at the facility. Kohlman had been told
by Gibson to make sure that employees were able to freely
come and go, and it is wholly improbable that having been
charged with that responsibility, Kohlman would have encour-
aged employees to engage in assaultive, criminal behavior. I
further discredit Holzback’s testimony that that when she left
the building she saw employees throwing rocks and Kohlman
laughing. Schwering testified that she was walking right next to
Holzback at the time and that Kohlman was still inside the
building. I note that Holzback, who gave the most damaging
testimony against Kohlman, was terminated the very next day,
June 28, for excessive absenteeism and that her discharge was
approved by Kohlman.
I credit Kohlman’s testimony that she did not direct or en-
courage employees to use their vehicles to run over the union
representatives, and I recommend that paragraph 5(b)(i) of the
complaint be dismissed.
c. Fonseth’s threat to run the union representatives over
I credit Fonseth’s testimony that when he left the building he
heard Kohlman say, in a loud voice, “[G]o home, be safe, don’t

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
say anything.” I also credit Fulton’s testimony that, notwith-
standing this instruction, Fonseth proceeded to walk past the
union representatives and threatened to run them over if they
got in his way. Fonseth demonstrated quite convincingly on the
witness stand that in this excitable situation he lacked a certain
degree of impulse control. When asked why he spun his tires
that night, he candidly quipped, “beats me.” Based upon Ful-
ton’s credible testimony, I find Fonseth did in fact threaten to
run the union representatives over if they got in his way.
There is no evidence that Kohlman was aware that Fonseth
was intending to threaten the union representatives. Nor is there
evidence that Kohlman heard Fonseth make the statement, or
that the statement was reported to her after the fact.
d. Rock throwing
Many witnesses testified about rock throwing that night. On
one end of the spectrum, Respondent’s witnesses, Stuart, Ball,
and Wilson, testified that a former employee picked up a single
rock from the shrub area near to where Kohlman was sitting,
and threw it in the direction of the gate. On the other end of the
spectrum, Gibbons testified that five to seven employees lo-
cated throughout the parking lot threw 20 to 30 rocks over a 10-
minute period. Pat Taylor testified that four rocks were thrown,
Linger testified that “quite a few” rocks were thrown, and Ful-
ton testified she did not know how many rocks were thrown but
it was more than one.
There is no evidence that Kohlman was aware, before the
fact, that employees were intending on throwing rocks at the
union representatives. Nor is there any direct evidence that
Kohlman saw the rocks being thrown. The General Counsel
would have the trier of fact draw the circumstantial inference
that she had to have seen the rocks being thrown based on the
fact that more than one rock was thrown by employees who
were standing in close proximity to where Kohlman was sitting.
I am, however, unable to draw that inference for several rea-
sons. Kohlman denied seeing rocks thrown that night and as I
have already indicated, I found Kohlman to be an entirely
credible witness. Her denial is made plausible by the fact that
there was a great deal of commotion going on at the time the
rocks were thrown. This was not a static situation. Employees
were yelling at the union representatives and the union repre-
sentatives were yelling back. Employees were exiting the build-
ing and Kohlman was instructing them to go home and be safe.
Employees were driving through the gate to go home at the
same time that employees were driving through to come to
work. At least one witness testified that the fire was burning at
the same time the rock(s) were thrown. Kohlman’s attention
may easily have been drawn to these other occurrences at the
time the several rocks were thrown. Kohlman was seated on the
curb in front of the shrubs and Fulton and Linger testified that
between 10 and 30 employees were standing around her when
the rocks were thrown. It is therefore entirely possible that
Kohlman’s vision was blocked. This is a close issue and one
that merits careful consideration. The General Counsel bears
the burden of proof, and I am unable to conclude that the Gen-
eral Counsel has proven, by a preponderance of the evidence,
that Kohlman saw the rocks being thrown or that she was made
aware, after the fact, that rocks had been thrown.
e. Fire setting
The evidence establishes that an employee of Respondent set
fire to a stack of union handbills in the area of the parking lot
between the building and the gate.10 I credit Kohlman when she
testified that she immediately jumped up, told the employees to
put the fire out, and said, “[W]e can’t have this out here, you
need to stop, you need to go home.” She radioed to Bohman for
assistance and after employees poured soda on the fire to put it
out, Kohlman told Branum to get a shovel and take the ashes
outside the gate.
f. Disposal of the ashes
There was varying testimony on where Branum put the
ashes. According to Pat Taylor, Branum threatened to throw the
ashes on her and then put them so close to her feet that she
could feel the heat through her shoes. Gibbons, who was stand-
ing next to Taylor, heard no such threat but did testify Branum
put the ashes at Taylor’s feet. Linger testified that Branum
made two trips with the shovel, a fact not attested to by any
other witness. Respondent’s witnesses, Branum, Stuart, and
Ball, testified that Branum put the ashes on the grassy strip on
the opposite side of the gate where the union representatives
were standing.
This was one of the few areas where Fulton and Kohlman’s
testimony varied to any significant extent. According to Fulton,
when Branum was asked by Mertes what he was going to do
with the ashes, Branum said he was just going to get rid of
them. Branum then walked past the union representatives and
put the ashes in the roadway. Kohlman testified she recalled
Branum said, “I may be young and dumb, but I am not that
dumb,” and then dumped the ashes on the grassy patch. Accept-
ing either of these versions as the honest recollections of credi-
ble witnesses, Branum did not threaten to throw the ashes on
Taylor. Nor did he imperil her safety by placing the ashes at her
feet.11 Relying on either Fulton or Kohlman’s account, Branum
placed the ashes a safe distance from all of the union represen-
tatives.
g. Summary of findings and positions of the parties
I find that three acts of employee misconduct occurred on the
night of June 27: Fonseth’s threat to run over the union repre-
sentatives, the throwing of several rocks, and the setting of
union handbills on fire.
The General Counsel takes the position that by Kohlman’s
inaction on the night of June 27, together with Respondent’s
failure to later conduct an investigation or to take disciplinary
action against the employees who engaged in misconduct, Re-
spondent condoned these acts and is liable for them. Respon-
dent makes five arguments in its defense: first, Respondent
contends it had no legal duty to prevent off-duty employees or
nonemployees from engaging in the type of misconduct al-

10 It is unnecessary to resolve the issue of who set the fire since it is
clear that it was done by an employee. I do find that only one fire was
set, and I discredit Pat Taylor and Gibbons’ claim that two fires were
set.
11 Pat Taylor’s dubious claim that the ashes, which had been soaked
with soda and stomped on, were so hot that she could feel the heat
through her shoes merits no further discussion.

K.B. SPECIALTY FOODS CO. 749
leged; second, Kohlman took legitimate, responsible measures
to prevent misconduct; third, the situation was resolved on June
27 and there was no need for later discipline; fourth, Respon-
dent notified employees after June 27 that it does not condone
physical confrontations during union campaigns; and fifth,
union representatives and employees handbilled at Respon-
dent’s facility after June 27 without interference.
h. Discussion
The Act imposes an affirmative duty upon an employer to
insure that its obligation to maintain discipline in the plant and
to provide its employees with the opportunity to work without
interference from their coworkers is not delegated or surren-
dered to any union or antiunion group. Newport News Ship-
building Co., 236 NLRB 1499, 1506–1507 (1978). An em-
ployer who participates in, ratifies, approves, or condones
threats of physical violence or assaults by employees on other
employees because of their union or antiunion sympathies vio-
lates the Act, Newton Bros. Lumber Co., 103 NLRB 564, 569
(1953); Fred P. Weissman Co., 69 NLRB 1002 (1946), enfd.
170 F.2d 952 (6th Cir. 1948), cert. denied 336 U.S. 972 (1949),
and liability may be found even when the misconduct occurs
off the employer’s property. Goodyear Tire & Rubber Co., 21
NLRB 306 (1940), enfd. 129 F.2d 661 (5th Cir. 1942), cert.
denied 319 U.S. 776 (1943). Responsibility does not depend on
the employer having advance knowledge that the conduct will
be engaged in, but does arise if the employer is immediately
advised of the conduct and does nothing to prevent its continu-
ance. Detroit Gasket & Mfg. Co., 78 NLRB 670 (1948). There
is no per se criteria for determining whether an employer has
ratified or condoned misbehavior, and it is the totality of cir-
cumstances that must be considered. Cross Co., 143 NLRB
1005, 1012 (1963), enfd. 344 F.2d 171 (D.C. Cir. 1965).
Applying these principles, Respondent’s initial argument that
it had no legal duty to prevent off-duty employees from engag-
ing in the type of misconduct alleged can be quickly dispensed
with. An employer’s obligation to protect its employees from
threats, intimidation, and assault is not diminished because the
offenders are off-duty employees or even nonemployees.
There is no credible evidence that Kohlman, or any other su-
pervisor or manager, was aware ahead of time that the depart-
ing second-shift employees were going to threaten Fulton and
Linger, throw rocks at them, or set fire to their handbills.
Kohlman was aware that tensions on the second shift were
running high against the Union. That is quite different, how-
ever, from her being aware that the second-shift employees
were intending on engaging in acts of intimidation and physical
violence. Kohlman had no advance knowledge that such acts
were about to occur.
Of the three acts of misconduct that I have found occurred on
June 27, Kohlman was made immediately aware only of the
setting of the fire. Upon seeing the fire, she immediately or-
dered employees to put the fire out. She emphatically told
them, “[W]e can’t have this out here, you need to stop, you
need to go home.” She also radioed to the top management
official on site to come to the parking lot. The fire was put out
and the situation was brought under control. The employees,
who remained in the parking lot, went to the gate and engaged
in a question and answer discussion with the union representa-
tives, and shortly thereafter everyone left. The General Coun-
sel’s argument that Kohlman ratified and condoned the setting
of this fire is devoid of any factual basis. She promptly had the
fire extinguished and forcefully told employees that this behav-
ior had to stop and they had to go home. After she gave this
direction, there were no further incidents.
The General Counsel’s argument that Respondent failed to
conduct an investigation into the events of June 27 is similarly
with factual foundation. Before Kohlman left the premises that
night, she prepared a written memorandum of her observations,
and the next day she, Bohman, and Biehle were interviewed by
Taylor, Gibson, and Padgett. The investigation continued 2
weeks later when Padgett received a copy of the Union’s letter
alleging, inter alia, that rocks had been thrown at the union
representatives and that they had been threatened with physical
harm. Respondent’s counsel directed that witness interviews be
conducted and statements obtained. In addition, Respondent
cooperated with the criminal investigation conducted by the
Indiana State Police by handing over the surveillance videotape
from that night and by making its supervisors and employees
available for questioning. The evidence therefore establishes
Respondent did conduct an investigation into the incidents of
June 27. Following that investigation, Respondent addressed a
letter to all employees warning that physical confrontations
would not be condoned.
The General Counsel places particular emphasis on the fact
that no employee was disciplined by Respondent. I agree that
the Board has considered the failure of an employer to disci-
pline employees who have engaged in misconduct as evidence
of the employer’s condonation of that misconduct. As to the
rock throwing, no one was able to identify anyone other than a
former employee who threw a rock. As to the threat made by
Fonseth, Fonseth denied making the threat and there is no evi-
dence that Respondent was ever made aware of the fact that the
threat was made. Respondent was aware, however, that Matt
Brossman set fire to the handbills and it is undisputed that
Brossman was not disciplined. The failure to discipline
Brossman is not, however, the controlling factor in assessing
Respondent’s liability since it is the totality of circumstances
that must be considered. Respondent conducted a full investiga-
tion into the events of June 27 and cooperated in the criminal
investigation conducted by the State police. It sent a letter to all
employees condemning physical confrontations specifically in
the context of union activities. There is no evidence that Re-
spondent rewarded or promoted any offending employee, nor is
there any evidence that Respondent communicated to anyone,
in any manner, that it approved of what occurred on June 27.
There has been no repeat of employee misconduct. Under all
these circumstances, I find Respondent did not condone, ratify,
or approve the three acts of misconduct engaged in by employ-
ees on June 27. I therefore recommend paragraph 5(b)(ii)(A)
through (D) be dismissed.
F. August: Kohlman’s Alleged Threat of Plant Closure
At the beginning of every shift, Kohlman hands out work
schedules on the production floor and tells employees, “to be
safe.” Steve Mayse testified that during one of these daily pre-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
shift “safety meetings” an employee named Brent had a shirt
with a union logo on it. Kohlman pointed to the shirt and com-
mented to Rose Bowen who was standing near her, “[Y]ou
know if they were to get in here, this place would probably
close.” Approximately 40 employees were present when this
remark was made, at least 5 of whom were standing as close to
Kohlman as Mayse was. No other witness was called to cor-
roborate Mayse’s account, and Bowen and Kohlman denied
that Kohlman ever made such a statement.
Managers and supervisors, including Kohlman, conduct
weekly team meetings in the cafeteria, and safety items are
sometimes discussed. At one of these meetings Bowen pointed
to an employee wearing a union T-shirt and said if the Union
got in there the Company had the right to shut the doors. Bo-
wen testified that Mayse attended the same weekly team meet-
ings that she attended, and was present when she made this
comment.
I credit Kohlman’s testimony that she did not make the
statement attributed her by Mayse either at a daily preshift
meeting or at a weekly team meeting. Kohlman’s credibility
was tested in this case in a variety of factual settings, and she
gave a credible account in each of them. Mayse’s testimony
was brief, uncorroborated by any other witness, and contra-
dicted by Kohlman and Bowen. I credit Kohlman and Bowen
over Mayse and recommend dismissal of paragraph 5(e) of the
complaint.
G. August: Kohlman/ Combs
David Combs was employed by Respondent from July to
October. Combs testified that Kohlman was his supervisor and
that in mid-August, she asked him if he had thought about join-
ing the Union and he told her no. Combs acknowledged during
cross-examination that in two pretrial affidavits, one given to
the Union and the other to the General Counsel, he made no
mention of this conversation.
In early September, Combs’ cousin, Steve Mayse, gave
Combs an authorization card while they were working on the
production line. Kohlman was not present when Combs ac-
cepted the card, nor was any other supervisor or manager. The
next day, Kohlman approached him on the line and asked him
if he had gotten a union card and if he had signed it. Combs
told her it was none of her business, but if she needed to know
he had not yet signed the card. Kohlman said if he signed the
card he would be working weekends. According to Combs, in
the remaining month of his employment, Kohlman asked him
once or twice every week if he had turned the card in. These
interrogations took place on the production line and in the pro-
duction office. Combs quit his job in October because he was
about to be fired for having another employee clock him out.
Kohlman testified that Combs did not work directly for her
and that Tim Hughes supervised Combs on the cake line. In
August, Hughes told Kohlman he was having problems with
Combs and asked if Kohlman would take him for 2 weeks on
the deli side. Kohlman agreed and assigned Combs to a packag-
ing job. During the 2-week period that Combs worked for
Kohlman, Combs came into the production office one day and
told Kohlman that Mayse had given him a card while he was
working on the line and wanted Combs to sign it. Combs said
he did not appreciate what his cousin had done. Kohlman told
Combs to put the card away, that she would discuss the matter
with Hughes, and that someone might talk to Mayse about pass-
ing out cards on worktime. The next day, Kohlman posted a list
for mandatory Saturday overtime. Combs was upset about hav-
ing to work on the weekend and he told Kohlman that he was
still considered cakes and he should not have to work. Kohlman
said he was working on the deli side for the 2-week period and
that he had to work on Saturday. Combs pulled out his wallet,
took a union card out of it, and told Kohlman he had not signed
the card yet but if she would let him out of working Saturday he
would not sign it. Kohlman told him to put the card away, go
back to work, and that he had to work on Saturday. The next
day was the Thursday weekly production meeting, and at that
meeting Kohlman read off the work schedule for the mandatory
Saturday overtime. After the meeting, Combs again spoke to
Kohlman and asked if there were any way he could get Satur-
day off. Kohlman said no. Combs again said he would not sign
the union card if she would let him off on Saturday. Kohlman
said she was telling him for the final time that he had to work
Saturday. Kohlman denied threatening Combs and denied ques-
tioning him about joining the Union.
Combs was misleading in his testimony when he said that
Kohlman was his supervisor when, in fact, for 10 out of the 12
weeks that he was employed, Hughes was his supervisor. This
is significant because of Comb’s claim that Kohlman interro-
gated him once or twice every week in September and that
some of these interrogations took place on the line. For this to
be true, Kohlman would have had to have left the deli side, her
area of supervision, and gone over to the cake side, where
Combs was working, in order to interrogate him. Combs’ testi-
mony is also seriously called into question in view of the fact
that in two pretrial affidavits, he never mentioned the first al-
leged interrogation that supposedly occurred in mid-August.
Kohlman’s testimony was credible in all respects. Combs
was a problem employee who was placed under Kohlman’s
supervision for a 2-week period. He was not happy about
Kohlman’s insistence that he work Saturday overtime while
under her supervision, and Combs used the unsigned authoriza-
tion card as leverage to get out of the assignment. I credit
Kohlman that she never interrogated Kohlman, or threatened
him with overtime if he signed a card, or created the impression
that his union activities were under surveillance. I therefore
recommend that paragraphs 5(f), (g)(i), and (ii) be dismissed.12
H. September: Moeller/Roberts
Daniel Roberts has been employed for 3 years. Sometime in
September, Roberts engaged in a heated conversation with a
fellow employee about the Union. Moeller separated Roberts
from the other employee and pulled him aside. According to
Roberts, Moeller said he did not like to walk in on conversa-
tions like Roberts was having with the other employee. One
thing led to another and the two began talking about the Union
at a nearby plant in Greensburg called KS Bearings. Moeller

12 In view of my recommendation that that par. 5(f) be dismissed,
there is no need to reach the issues raised by Respondent’s motion to
dismiss that paragraph.

K.B. SPECIALTY FOODS CO. 751
said KS was closing its doors and the Union could not do any-
thing for the employees. Roberts agreed that the Union could
not do anything with KS closing its doors. Moeller asked,
“[T]hen what good is a union? It is no good to nobody at that
point. Why are they shutting the doors?” Roberts said it was
because of poor management. Roberts summarized the conver-
sation as follows: “He more or less stated that the union was
closing the place down.” Moeller did not recall ever having a
conversation with Roberts about the Union and denied ever
making the statements attributed to him by Roberts.
I credit Roberts that this conversation did, in fact, take place.
Roberts is an uncomplicated individual and he did not impress
me as a person who would invent an entire conversation. It is
entirely plausible that Moeller separated Roberts from the em-
ployee with whom he was having a verbal altercation, and in
the process of calming Roberts down, engaged in a conversa-
tion about what was happening at a nearby plant. This is par-
ticularly so given the fact that managers and supervisors had
been told in their attorney-training sessions that they were free
to give their personal opinions about the Union, and I find that
is what Moeller did in his conversation with Roberts. Since
Moeller had no recollection of this conversation, I credit Rob-
erts’ account of what was said. I rely on Roberts’ recollection
of the words spoken, and not his impression of what was said.
Moeller told Roberts that KS Bearings was closing and the
union could not do anything about it. When Roberts agreed,
Moeller observed that a union was not much good if it could
not do anything when a company closed. Moeller did not say
that a union was the cause of KS Bearings’ closing, only that
once the decision was made to close, there was nothing a union
could do about it. Nor did Moeller make any reference to Re-
spondent closing or possibly closing. There was no threat, ex-
press or implied, in Moeller’s words that Respondent would
take action on its own to close if employees selected the Union
as their bargaining representative. See Parts Depot, Inc., 332
NLRB 670, 679 fn. 1 (2000). I therefore find Moeller’s com-
ments constituted permissible speech under Section 8(c), and I
recommend paragraph 5(h) of the complaint be dismissed.
I. October 17: Taylor/Ferrill
Delores Ferrill has been employed for 21 years. On October
17, she attended a company informational meeting about the
union organizing campaign, and she asked a question about the
comparability of insurance benefits. After the meeting, Taylor
approached Ferrill and asked her if she had gotten the answer to
her question. The topic of conversation turned to the closing of
the KS Bearings plant. Ferrill testified Taylor said the reason
that plant was closing was because of the union there. Ferrill
said that from what she had read in the newspaper the closing
had to do with management and with the property on which the
plant was located. Taylor then said that Kroger had closed one
of its meat plants in Indianapolis and moved the plant to Shel-
byville because the union in Indianapolis had wanted too much
money. He said that KB had also moved a warehouse to Shel-
byville and that the merged facilities were known as CSI. Fer-
rill pointed out that CSI had “gone union anyway” and Taylor
agreed.
Taylor admitted speaking with Ferrill about KS Bearings and
CSI, but could not recall if it was part of one conversation or
two separate conversations. With respect to KS Bearings, Tay-
lor testified that he commented to Ferrill that a union plant in
Greensburg was closing. With respect to CSI, Taylor testified
that Ferrill asked about employees of KB who were leaving to
go to CSI, a union facility in the area. Taylor said it was not
just KB employees who were leaving to go to CSI, but that
employees from union facilities were also going to CSI. He said
employees had left two Kroger meat plants to go to CSI and
that CSI was a consolidation of three different facilities de-
signed to better service Kroger.
Ferrill gave a coherent account of a conversation that had a
discernible beginning, middle, and end, and there was a logical
flow to the subject matter discussed. Ferrill was also certain
that this was all part of a single conversation with Taylor. Tay-
lor was more vague in his recollection, unable to say whether
this was one conversation or two. Taylor also claimed that his
statement about the closing of the unionized KS Bearings plant
was not linked to the conversation about Kroger employees
transferring to CSI. If true, the statement about KS Bearings
was made out of context. A high ranking member of manage-
ment does not go up to a rank-and-file employee, state that a
local plant is closing, and then walk away. The statement had to
have been made as part of a larger conversation, and Taylor’s
failure to recall that conversation was not the result of an inabil-
ity to recall the conversation, but rather, in my view, an unwill-
ingness to recall the conversation. I therefore find Ferrill’s ver-
sion of this conversation more credible than Taylor’s version.
An employer is free to predict the economic consequences it
foresees from unionization so long as the prediction is carefully
phrased on the basis of objective fact to convey its belief as to
demonstrably probable consequences beyond its control. NLRB
v. Gissel Packing Co., 395 U.S. 575, 618 (1969). Without the
necessary objective basis, such statements are not protected by
Section 8(c), Quamco, Inc., 325 NLRB 222, 223 (1997). An
employer’s statement must be viewed in context, and the total-
ity of circumstances considered. Mediplex of Wethersfield, 320
NLRB 510, 471 (1995); Ebenezer Rail Car Services, 333
NLRB 167 fn. 2 (2001).
Applying these principles, and based upon the credible tes-
timony of Ferrill, I find Taylor violated Section 8(a)(1) by im-
pliedly threatening Ferrill with closure of the facility if employ-
ees selected the Union as their collective-bargaining representa-
tive. I agree with Respondent’s statement that the Board has
found, under some circumstances, an employer’s reference to
plant closures by other employers does not necessarily violate
the Act. In this conversation, however, Taylor referred specifi-
cally to Kroger and to KB.
Taylor’s comments must be viewed in context. He started
out by reminding Ferrill about the company meeting and Re-
spondent’s strong opposition to the union representing the em-
ployees of KB.13 It is not clear who introduced the topic of the
closure of KS Bearings, but once the topic was raised, Taylor

13 Padgett testified Respondent was “100 percent” against unioniza-
tion. The company informational meetings were the primary vehicle by
which Respondent communicated that position to employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
said the plant was closing because of the Union. Having, thus,
introduced the idea that a union caused a plant closure by a
stranger employer, Taylor focused his remarks closer to home.
He said that Kroger had closed one of its meat facilities in Indi-
anapolis, and transferred the work from that facility to Shelby-
ville, because the union in Indianapolis had asked for too much
money. Narrowing the focus of his remarks even further, Tay-
lor said that KB had also moved a warehouse to Shelbyville to
create a consolidated facility with the meat plant.
Taylor did not offer to Ferrill, nor did Respondent offer in
this case, any objective basis for Taylor’s opinion that a union’s
too high-priced demands was the reason for the closure and
transfer of the Kroger meat plant. Consequently there is no
basis upon which to conclude that Taylor’s assessment was
factually accurate. Nor is there evidence that KB’s employees
had ever been told before that the future of their plant in
Greensburg was in doubt or that Respondent had any economic
reasons for considering closing or moving the plant. The net
effect of Taylor’s remarks was to imply that the same fate of
plant closure and the transfer of work that befell Respondent’s
meat plant and warehouse employees, could well befall Re-
spondent’s employees in Greensburg if the employees there
chose union representation. See Quamco, Inc., supra. His re-
marks therefore violated Section 8(a)(1) of the Act.
J. October 31: Gibson’s Statement at Informational Meeting
Daniel Roberts attended a company informational meeting
on October 31 at which Gibson talked about the process of
negotiations and collective bargaining. Roberts testified on
direct examination that Gibson did not appear to be reading
from anything when he told employees that if negotiations were
to take place employees would “start negotiating with nothing.”
On cross-examination, Roberts acknowledged that there were
papers in front of Gibson when he spoke and that he read from
slides that were projected on an overhead. He also acknowl-
edged that Gibson had cited court cases stating that there were
no guarantees in bargaining. When asked if Gibson led the
employees to believe that they would start negotiations from
nothing, or if he actually said they would start with nothing,
Roberts testified, “[H]e led people to believe this.”
Gibson testified that he read from a prepared text at the Oc-
tober 31 meeting and that his presentation lasted about 30 min-
utes. He reviewed a series of Board and court cases on collec-
tive bargaining, and used an overhead projector in his presenta-
tion.14 Gibson denied stating that employees would start nego-
tiations with nothing. Rather, he said that if the Union got in
there would be negotiations and they could bargain up, bargain
down, or bargain away. Padgett corroborated Gibson’s testi-
mony.
I credit Gibson and Padgett’s testimony over Roberts in this
instance. I have no doubt that Robert’s was telling the truth as
he understood it, but I do not think he appreciated the nuanced
distinction between bargaining from nothing on the one hand,
and bargaining up, bargaining down, and bargaining away on
the other. Roberts acknowledged as much when he testified

14 The text of this speech was provided to the General Counsel pur-
suant to subpoena, but was not introduced.
Gibson did not actually say that employees would bargain from
nothing, only that he “led people to believe this.” I credit Gib-
son and Padgett’s recollections that Gibson never told employ-
ees they would start negotiating with nothing, and I recommend
paragraph 5(k) of the complaint be dismissed.
K. Barbara Danforth
1. The facts
a. Activities on behalf of the Union
Barbara Danforth worked for Respondent from September
1991 until she was discharged on November 15, 2001. In the
course of her 10 years of employment, there were three union
organizing attempts at the facility. Danforth was heavily in-
volved in the two campaigns previous to the one in this case,
and she testified her activities were well known to Respondent.
In this case, Danforth began distributing cards on May 1. She
wore union T-shirts, buttons, and hats on a daily basis. She had
union stickers and signs on the car she drove to work, and
stickers on her locker. She wrote a letter in support of the Un-
ion that was published in a local newspaper on October 25. She
also distributed numerous copies of this letter at the facility,
placing them on coat hooks, benches, in the smoking and non-
smoking breakrooms, on a bulletin board outside the women’s
locker room, and in the employee picnic table area.
b. Events of October 31
On October 31, Danforth attended a company informational
meeting at which Padgett, Gibson, and Rod Taylor were pre-
sent. According to Danforth, “outdated cases” were discussed
in which employees had tried to form a union and “bad things
had happened.” Danforth testified she asked Gibson to “please
read me the dates of the cases because I wanted to know if it
was before Norma Rae or after Norma Rae.” Danforth testified
she challenged a statement by Gibson that the Union had a
private jet and paid a pilot to fly it. Danforth said the Union had
sold the plane, and Gibson said he was just giving information
from public documents. Danforth then said she was being
treated like the enemy and Padgett said she should not feel that
way.
Danforth testified that she believed that Padgett was coerced
into saying she was not the enemy by a group of men wearing
suits who were standing in the back of the room. She believed
these men were an antiunion bust committee sent out by
Kroger. Danforth testified, “They were professionally dressed .
. . . I just took from Mr. Padgett’s actions . . . from his body
language, that he took directions from somebody behind me,
since I was at the back of the room, and he was speaking to me,
but he was looking behind me.” When asked how the meeting
ended, Danforth said that Padgett became visibly upset at the
questions she was asking and abruptly told employees to go
back to work. Padgett and Taylor testified that there were no
men in the room fitting Danforth’s description.
Later that day, Danforth left her work area to look at some
ongoing construction at the facility. Taylor approached her and
asked her what she was doing out of her work area. She said
she was curious about the new additions. According to Dan-
forth, Taylor said he really wasn’t supposed to talk to her about

K.B. SPECIALTY FOODS CO. 753
the Union but he wanted to know why she supported the Union.
She said because she wanted fair rights for everybody and
consistency. Taylor said she seemed to be the only one striving
for that and that everyone else he had approached said they
wanted better wages and benefits. Following up on Danforth’s
observations at the earlier informational meeting, Taylor said
that it didn’t matter what the dates of the cited cases were. She
asked if the cases were before or after Norma Rae and Taylor
said he was unfamiliar with Norma Rae. Taylor said she would
get him the videotape. Taylor said if the Union came in, he
could no longer talk to her one-on-one and that she would have
to get somebody else to do the talking for her. They talked
about her pending divorce and he said he would not be able to
do any more favors for her. He also asked her to talk to other
employees to find out what it would take to make them happy.
Taylor’s version of this conversation is that after he asked
Danforth what she was doing out of her work area, he asked her
how things were at home. Taylor had seen her crying 2 weeks
before when she told him about problems with her husband and
the possibility that they would divorce. As a followup to that
conversation, he asked her how she was and she said things
were not better at home or at work. Taylor told her she needed
to get back to God and they talked about setting up prayer
groups after work. Danforth said she had been at a roundtable
meeting with Padgett and she felt Padgett had cut her off. Tay-
lor pointed out some of the things Padgett had done for em-
ployees including pay increases. The topic of Norma Rae came
up and Taylor said he didn’t know who that was and Danforth
said she could fill him in.
c. Danforth’s discharge
In late October, Danforth told her supervisor, Bob Howard,
that she had a school event to go to on October 30 for one of
her children. She asked if she could work around it to avoid
having to take time off from work. Howard allowed Danforth to
leave work to attend the event, and then to punch back in to
complete her hours.
Danforth testified that by November, as a result of her per-
sonal problems, she was unable to eat or sleep and she became
ill. On November 7, she went to the emergency room and a
doctor prescribed an antibiotic, an asthma medication, and a
pain medication. Danforth did not advise Howard or any other
supervisor of manager of this visit to the hospital.
Respondent has a lateness and attendance policy that pro-
vides employees with 6-paid days each year that can be used
for any reason. Once those 6 days are exhausted, employees
begin to incur “instances” if they are late or fail to report for
work. If an employee is late or fails to report for up to 4 hours,
a half-instance is incurred. If the employee is late or fails to
report for more than 4 hours, a full instance is incurred. Super-
visors carry clipboards and fastened to those clipboards is an
attendance report that is generated every Tuesday. The report
shows the number of paid days and instances used by every
employee.
An employee may only incur 3-1/2 instances; on the
accumulation of the fourth instance, the employee is
terminated. Respondent’s policy is to issue a writing warning
when an employee reaches two instances, and a final written
warning when the employee reaches three instances. When an
the employee reaches three instances. When an employee is
out, the supervisor fills out a sheet and submits it to the payroll
department. Payroll enters the information and then forwards it
to Jane Badgley in the human resources department. When an
employee reaches two instances, Badgley puts that employee’s
individual attendance calendar in the supervisor’s mailbox. The
supervisor then issues the first written warning. When the em-
ployee reaches the third instance, the same process is followed.
Badgley testified that when she is not at work, no one fills in
for her. She catches up on her responsibilities, including super-
visor notifications of those employees who have accumulated
their second and third instances, when she returns to work.
Respondent also has a medical leave policy. A medical leave
consists of being out of work for 7 consecutive days under the
care of a physician. On the 8th day, if medical documentation is
provided, the employee begins receiving compensation under
the medical sick leave plan. If an employee has been charged
instances for days missed because of an illness, and if human
resources approves the medical leave, those instances that oc-
curred during the leave, but prior to the approval, are removed.
If an employee is out ill for less than 7 days, but provides a
doctor’s note, they are charged with one instance for the period
they are not at work.
According to Respondent’s records, Danforth accumulated
her second instance on November 7, and another half instance
on November 8. Badgley was on vacation on November 8 and
9. Since she was not at work, she did not notify Howard that
Danforth had reached her second instance.
On November 12, Badgley returned from her vacation and
sent Howard notification that Danforth had accumulated her
second instance. Howard testified he picked up the notification
from his mailbox sometime that afternoon. That same day,
Danforth approached Moeller and asked him where she was on
her attendance. Moeller referred to the weekly attendance re-
port on his clipboard and told her she had used 1-1/2 instances
as of November 6, the date of the report.
On Tuesday, November 13, Danforth was out of work the
entire day. She testified she woke up late and then discovered
her car battery was dead. She worked all day Wednesday, No-
vember 14, but Howard took a vacation day that day and did
not issue the first written warning.
On Thursday, November 15, Danforth again woke up late.
She was scheduled to report for work at 7 a.m. and at 7:45 a.m.
Howard noticed she was missing and told Moeller she was not
at work and she was out of days. Moeller, Taylor, and Howard
all testified that the discharge of an employee who has accumu-
lated four instances is automatic and the notification to the
employee is usually delivered by the immediate supervisor. In
this case, Howard was called away at 11:30 a.m. to attend to a
matter at his child’s school, so it fell to Moeller, Howard’s
superior, to advise Danforth that she was terminated.
Danforth arrived at the facility at 11:20 a.m. She testified
that she wanted to find Moeller as soon as possible because she
had accumulated 3-1/2 instances and she wanted to see if she
could be transferred to a later shift because she couldn’t wake
up in the morning. When she saw Moeller, he said he wanted to
talk to her and he took her to Rod Taylor’s office.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
Taylor told Danforth she had reached four instances and was
terminated. Danforth disputed the figures, saying she had used
only 3-1/2 instances. Danforth said there was no way she could
lose her job and she begged Moeller to tell Taylor that she had
not used up all her instances. Moeller refused to make that
statement and Danforth was told to clean out her locker. At no
time during this meeting did Danforth say she was ill, that she
was under a doctor’s care, that she was taking prescription
medications, or that she needed a medical leave. After she left
the facility, however, she decided “the best bet would be to fly
home, call Mr. Taylor, tell him I will get a medical leave.” She
left a message for Taylor to call her, but he did not return the
call.
Danforth made an appointment to see her doctor Monday,
November 19, and the doctor diagnosed her as suffering from
anxiety and depression. The doctor was going to date the medi-
cal leave form that day, November 19, but Danforth asked if
she could back it up to November 14. According to Danforth,
the doctor said that was not a problem because Danforth had
been suffering from these illnesses since that time.
On November 20, Danforth went to the facility and Taylor
and Gibson agreed to speak with her. Danforth said she was
suffering from anxiety and depression and that she felt she was
entitled to a medical leave. According to Danforth, Gibson said
that anxiety and depression was not a valid medical excuse.
Danforth said she was sick, mentally, and Gibson said the com-
pany did not recognize mental illness as a basis for a medical
leave. Gibson asked why Danforth only went to the doctor after
she was fired, and Danforth admitted telling Gibson that she
was doing the only thing she knew she could do in order to
keep her job. Danforth also acknowledged that Gibson and
Taylor questioned the fact that the doctor had said she was sick
as of November 14, but that Danforth had reported for work on
November 14 and worked the entire day. Danforth explained to
them, “[I]t could be a 3:01 thing, that if I got off work at 3:00,
why couldn’t a doctor put me off at 3:01?” Gibson testified he
told Danforth that had she requested a medical leave before her
termination, he could have worked with her, but her request
was being made after the fact. The meeting ended with Taylor
and Gibson saying they would get back to her. The next day
Gibson called Danforth and told her the Company had a strict
attendance policy that had to be consistently applied and that he
was sorry but the termination would stand.
Gibson testified that employees have been granted medical
leaves on the basis of anxiety, stress, or depression, and Re-
spondent’s records show that from November 2000 to Decem-
ber 2001, four such medical leaves were granted. Respondent’s
records also show that from January 1999 to May 2002, 140
employees were terminated for excessive absenteeism. Gibson
testified that although it is Respondent’s policy to issue written
warnings when employees reach their second and third in-
stances, there have been times when the policy has lapsed and
the warnings were not issued. Respondent presented evidence
that in the period March 1999 through the end of June 2001,
eight employees were terminated for excessive absenteeism
without receiving one or both of the written warnings. Six of
these terminations predated the union organizing campaign in
this case.
One employee, Angela Mitchell, was not terminated for ex-
cessive absenteeism even though she had reached her fourth
instance when she became ill. On June 3, 2002, Supervisor
Thomas Schebler noticed Mitchell standing against a wall, red-
faced holding her chest. She said she was having chest pains
and believed she might be having a heart attack. It was the end
of Mitchell’s shift and she left for the hospital. Three or four
days later, Mitchell called Gibson and said the doctor had put
her off for 4 or 5 days. Gibson told Mitchell if she missed 4 or
5 days and she brought in a doctor’s note, she would be charged
with one instance. Mitchell said she had no more instances left
and Gibson said he was unaware of that fact. Mitchell asked
Gibson what her options were and he said unless she got a
medical leave she would be terminated. On June 11, Mitchell
gave her doctor Respondent’s medical leave form, and he com-
pleted and returned it to her on June 14. Mitchell returned to
work on June 17, and was granted a medical leave for the entire
period that she was out of work. She was not charged with an
instance.
Gibson testified that he distinguished Danforth’s posttermi-
nation request for a medical leave from Mitchell’s request for a
medical leave. In Mitchell’s case, she told her supervisor that
she was ill. Several days later, she called Gibson and said she
was under a doctor’s care. She obtained Respondent’s medical
leave form, had the form completed by her doctor, and submit-
ted it to human resources. In Danforth’s case, she reported for
work on November 15 and was ready and willing to work.
When she was told that she was terminated for exceeding the
attendance policy, she argued that she had not exceeded her
number of instances. She did not say she was ill or under a
doctor’s care, nor did she ask for a medical leave. Gibson ex-
plained:

Ms. Danforth had every opportunity up to the last day of com-
ing to my office and asking me. If Ms. Danforth would have
come to me and said I’m sick, prior to the day she was termi-
nated, and she needed to see a doctor, I would have said no
problem. See a doctor. And if you can get a medical leave, it
will cover your attendance. We wouldn’t have this issue with
Ms. Danforth.

Gibson testified that he has never before been confronted
with a situation where an employee was terminated for having
accumulated four instances and then, after the termination,
produced documentation for an illness that caused the fourth
instance.
2. Analysis
a. Credibility
Danforth was a sympathetic but unreliable witness. An ex-
ample of her inability to accurately perceive events was her
testimony that at the October 31 informational meeting, Padgett
was being silently coerced by a group of professionally dressed
men standing in the back of the room. There were no men fit-
ting this description in the room that day. Danforth was also
willing to engage in a certain degree of exaggeration, bordering
on fabrication, in order to advance her interests. On direct ex-
amination, she testified that several days prior to her discharge,
Moeller told her she had 1-1/2 instances left. On cross-

K.B. SPECIALTY FOODS CO. 755
examination, however, when she was being confronted with her
absenteeism record, she said that Moeller had told her that she
had “many days left.” When Gibson asked her how she could
have been medically disabled on November 14 when she had
worked her entire shift that day, Danforth’s response was that
she was well at 3 p.m., but sick at 3:01 p.m. Danforth was a
highly emotional witness; her voice trembled throughout much
of her testimony, and on one occasion she lost her composure
completely. Given her testimony, and her demeanor on the
witness stand, I found Danforth to be an unreliable witness and
I have credited her testimony only where specifically noted.
b. October 31 conversation with Taylor
On October 31, Danforth had a one-on-one conversation
with Rod Taylor when he observed her away from her work-
station. Because I find Danforth to be an unreliable witness,
there is insufficient credible evidence that Taylor interrogated
Danforth during this conversation, or threatened her with more
onerous working conditions. I therefore recommend dismissal
of paragraphs 5(l)(i) and (ii) of the complaint.
c. Danforth’s discharge
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee
was discharged in violation of Section 8(a)(3), the General
Counsel must first persuade, by a preponderance of the evi-
dence, that an employee’s protected conduct was a motivating
factor in the employer’s decision. If the General Counsel is able
to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.” Wright
Line, supra at 1089. See also Manno Electric, Inc., 321 NLRB
278, 280 fn. 12 (1996). The elements commonly required to
support a finding of discriminatory motivation are union activ-
ity, employer knowledge, and employer animus. Farmer Bros.
Co., 303 NLRB 638, 649 (1991), enfd. 988 F.2d 120 (9th Cir.
1993).
In determining whether the General Counsel has met the ini-
tial burden of proving that an employee’s protected activity was
a motivating factor in an employer’s decision to discharge the
employee, the Board has held that in the absence of direct evi-
dence motive may be inferred from the total circumstances
proved. Further, the Board has found that evidence of a blatant
disparity is sufficient to support a prima facie case of discrimi-
nation. In addition, timing alone may suggest antiunion animus
as a motivating factor in an employer’s action. Sears, Roebuck
& Co., 337 NLRB 443 (2002).
Applying these principles to the facts of this case, I find,
based on the record as a whole, that the General Counsel has
failed to establish Danforth’s union activity was a motivating
factor in her discharge and therefore has not met his initial bur-
den under Wright Line, supra. The General Counsel concedes
that Respondent had a preexisting nondiscriminatory absentee-
ism policy that provided for the termination of any employee
who incurred four instances. The General Counsel further con-
cedes that Danforth incurred her fourth on November 15, the
day she was terminated. The argument that Danforth’s union
activity motivated her termination stems from three supposi-
tions: first, that Danforth was treated disparately by not having
been issued the two written warnings which would have alerted
her to the fact that she was close to exceeding her instances;
second, that Danforth was treated disparately by Respondent’s
refusal to grant her a medical leave after she was terminated;
and third, Respondent’s expressions of animus toward employ-
ees’ union activities.
The General Counsel first supposition that Respondent’s
failure to issue the written warnings to Danforth was the result
of disparate treatment, is unfounded. Respondent’s failure to
issue the two written warnings to Danforth was the result of
three individuals, Danforth, Howard, and Badgley’s, all taking
time off from work at the same time. Danforth incurred her
second instance on November 7, and another half instance No-
vember 8. Badgley, the person responsible for generating the
paperwork upon which warnings are issued, was on vacation
November 8 and 9. Badgley returned to work on November 12
and forwarded the paperwork to Howard, Danforth’s immediate
supervisor and the person charged with the responsibility for
actually issuing the warning. Howard testified credibly that he
did not receive Badgley’s report until that afternoon. Howard
and Danforth’s shift was over at 3 p.m. meaning that Howard
was in possession of Badgley’s report for, at most, several
hours that day. There is no evidence upon which to conclude
that his failure to issue the warning that same day, in that short
period of time, was motivated by antiunion animus. It is a fair
inference that Howard had planned on issuing the warning to
Danforth the next day. Danforth was absent the next day, how-
ever, and when she returned to work on November 14, Howard
was off. When Danforth reported late to work on November 15,
she had reached her fourth instance. Respondent’s failure to
issue the warnings to Danforth was the direct result of Badgley
and Howard taking successive vacation days, and Danforth
incurring instances in rapid succession. Moreover, Danforth
was a 10-year employee and she was fully familiar with Re-
spondent’s absenteeism policy and the significance of accumu-
lating four instances. Danforth was obviously aware that she
was close to her limit when she asked Moeller on November 12
how many instances she had left. This was further evidenced by
Danforth’s testimony that when she came in late on November
15 her fellow employees were upset with her and she wanted to
talk to Moeller right away. I discredit her explanation that she
wanted to speak to him because she had used up 3-1/2 instances
and was going to ask for a shift change. The reason she wanted
to speak to Moeller right away, and the reason her fellow em-
ployees were upset with her, was because they all knew she had
reached her fourth instance, knew she would be fired, and Dan-
forth was going to try to talk her way out of it. Finally, there
have been instances in the past where Respondent has failed to
issue warnings to employees for having reached the second and
third instances. In the period January 1999 to May 2002, Re-
spondent terminated 140 employees for excessive absenteeism.
In eight of those cases, employees did not receive either or both
warnings. While this is not a large number, it does establish that
on at least some occasions the issuance of warnings has been
overlooked.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
The General Counsel’s second supposition, that Respon-
dent’s failure to grant Danforth a medical leave after she was
terminated was discriminatorily motivated is similarly without
factual support. Out of the 140 employees terminated for exces-
sive absenteeism, the General Counsel points only to the ex-
perience of Angela Mitchell as evidence that Danforth was
treated differently. Gibson credibly explained the elemental
difference between Mitchell and Danforth: Mitchell requested a
medical leave before she was fired, Danforth asked for one
after she was fired. I credit Gibson’s testimony that had Dan-
forth requested a medical leave before she was fired, and had
she provided medical documentation of her condition, he would
have granted the leave. I discredit as wholesale fabrication
Danforth’s testimony that Gibson told her Respondent does not
recognize mental illness as a basis for medical leave. Respon-
dent has granted medical leaves on the basis of mental illness in
the past and would have granted Danforth such a leave had she
provided timely documentation. In addition, Gibson testified
credibly, and without contradiction, that in his experience as
human resource manager, Danforth was the only employee who
ever requested a medical leave after being terminated. There is
no basis upon which to conclude, then, that Danforth was
treated disparately from similarly situated employees. Finally, I
find, that Danforth attempted to invoke Respondent’s medical
leave policy as a last ditch effort to save her job. On her way
home after being fired, Danforth decided, “the best bet would
be to fly home, call Mr. Taylor, tell him I will get a medical
leave.” When Gibson later asked why she only went to the
doctor after she was terminated, Danforth admitted it was the
only thing she knew she could do in order to keep her job. Gib-
son justifiably looked askance at the doctor’s note provided by
Danforth which said she was medically disabled from working
as of November 14 when Danforth in fact reported for work on
November 14 and 15. It should be made clear that I do not pass
on the question of whether Danforth was in fact medically dis-
abled from working; maybe she was, maybe she wasn’t. I do
find that Danforth did not provide Respondent with documenta-
tion of an illness prior to her termination, and that she at-
tempted to invoke the medical leave policy as the only means
by which she could get her job back.
The General Counsel’s third supposition, that Respondent’s
demonstrated animus toward employees’ union activities was
the motivation for Danforth’s discharge, is also without merit.
In ten years of employment, Danforth was openly supportive of
three union organizing efforts and there was not a single occa-
sion when Respondent expressed animus toward her for those
activities. In the organizing campaign at issue in this case, Dan-
forth wrote a letter supporting the Union that was published in
the local newspaper on October 25. On October 30, 5 days
later, Howard allowed her to leave work during her shift to
attend to personal business, and further allowed her to make up
the time so that she would not have to incur an instance. Nor is
the timing of Danforth’s discharge suggestive of animus. Dan-
forth incurred her fourth instance on November 15 and she was
discharged the same day, a fact that the General Counsel con-
cedes is consistent with Respondent’s absenteeism policy.
The complaint alleges that on 10 separate occasions, agents
of Respondent engaged in 8(a)(1) conduct. I have found merit
to only two of these allegations, Rod Taylor’s conversation
with Adkins in June, and his conversation with Ferrill on Octo-
ber 17. While it is true that Taylor was a high-ranking man-
agement official, these were discrete, isolated instances involv-
ing two employees out of 250 employees, and this conduct was
not repeated in any other of Respondent’s numerous interac-
tions with employees concerning the union. Nor is there evi-
dence that Taylor’s remarks were disseminated to other em-
ployees. An expression of animus does not per se result in a
finding that an employee’s discharge violates Section 8(a)(3).
Animus must have been a substantial or motivating factor in the
discharge, and in this case, I find there is no evidence that ani-
mus played any role in the decision to discharge Danforth.
For all these reasons, I find Danforth was terminated for vio-
lating Respondent’s well-established and nondiscriminatory
absenteeism policy. The General Counsel has not satisfied his
initial burden under Wright Line, supra, and I recommend para-
graph 6(a) of the complaint be dismissed.
L. Ruth White
1. The facts
a. Activities on behalf of the Union
Ruth White began working for Respondent on October 1.
She was referred to the job through an employment agency
called PMI,15 and her supervisors were Howard and Moeller.
She attended five or six union meetings during her 2 months of
employment and signed a card.
She wore union buttons on her sweatshirt and a union sticker
on her wallet that she carried around with her at work. On one
occasion, she came back late from her morning break. Howard
asked her where she had been and she said she and other em-
ployees had been talking about the Union in the breakroom.
Howard said breaks were 15 minutes and lunch was 30 min-
utes. When asked if he had inquired of White if she was for or
against the Union, Howard testified, “[N]o, I didn’t even ask.
. . . To me, honestly, I don’t care.” On November 28, as White
was driving out of the parking lot after work, Mertes came up
to the car and handed her an envelope. White did not observe
any supervisors or managers in the vicinity.
b. October 16 conversation
On or about October 16, at about 1:15 p.m., White was on a
break in the smoking breakroom. She testified that Tim Flem-
ing was already in the smoking breakroom when she arrived.
When all the other employees left, and it was she and Fleming
alone, Fleming asked if she worked in production. When she
said yes, he asked if anyone had spoken to her about the Union.
She said she had heard people talking about it. Fleming asked
what her opinion was and White said she agreed with the Union
and had worked at two unionized companies and never had a
problem. Fleming said he did not agree with the Union. Ac-

15 The General Counsel contends White was a regular full-time em-
ployee of Respondent. Respondent contends White was an employee of
PMI. Because I find White was not discriminated against when she was
discharged, it not necessary to reach this issue. For the purpose of this
analysis, I have assumed she was an employee of Respondent.

K.B. SPECIALTY FOODS CO. 757
cording to White, she had never before spoken to Fleming, and
never spoke to him again.
That evening White attended a union meeting. She told Leo-
nard of her earlier conversation and Leonard prepared a written
statement. White testified she was positive it was Fleming she
spoke with that day, that she told Leonard it was Fleming, and
that Leonard wrote down that it was Fleming. White also testi-
fied that she read the statement before she signed it. White was
then shown the statement and was compelled to admit that she
had stated that the supervisor whom she had spoken with was
Tom Schebler, not Tim Fleming. White was asked:

JUDGE KERN: Now do you know who Tom Schebler
is?
A. No.
JUDGE KERN: That’s the name in Respondent’s 49,
your affidavit.
A. I see that but I don’t even—I can’t pronounce the
last name. I never even met that person.
JUDGE KERN: Did you read the statement before you
signed it?
A. I don’t remember. I don’t know if I did or didn’t. I
just remember signing my name because that is my signa-
ture.

Fleming, who is no longer employed by Respondent, testi-
fied that White worked under his supervision for 1 day. He
spoke to her about her work assignment, but he never had a
conversation with her about the Union. Fleming said he does
not smoke, and when he was employed by Respondent, he did
not take his breaks in the smoking breakroom.
Schebler testified that he does smoke and did have a conver-
sation with White in the smoking breakroom sometime in Oc-
tober. Schebler knew that White was new and he asked her
what she thought of KB so far. She said it was all right and the
people were fairly nice to work with. Schebler testimony con-
tinued:

I then told her that—said, I don’t know if someone has talked
to you about the union, but I would like you to know my
opinions. I kind of told her that as a supervisor I liked the one-
on-one ability to work with employees on job-related issues.
She said no one had talked to her about it and that she had
worked for a union before and the union had gotten a fairly
good contract. That was the end of the conversation. I did not
ask her what her opinion was of the union.
c. White’s discharge
On November 15, White told Moeller that her father was un-
dergoing surgery in a few days and that she wanted to be with
him but she had used up all her instances. Moeller approved the
leave request and White was able to spend the day with her
father in the hospital. White testified that Moeller also told her
that if she needed more days off to call him and he would make
the arrangements.
On November 29, White was given a certificate recognizing
her “for the efforts given during the week of Nov. 11 thru Nov.
17, 2001 to achieve PRs of 83% on the 1# Salad Line, and 86%
on the 3# Salad Line.” Padgett testified that in the fall of 2001,
Respondent implemented a productivity plan called “I-85,” the
goal of which was to operate each production line at 85-percent
reliability. The program was highly successful, and employees
were given certificates of appreciation for their efforts. Ac-
cording to Padgett, 99 percent of all employees in the facility
received a certificate of appreciation. The certificate that White
received on November 29 was one such certificate.
On November 30, White reached 300 hours of employment
at the facility. White testified that when she had first been re-
ferred by PMI, she was told by Mandy Poling, the PMI repre-
sentative, that after 300 hours she was guaranteed full-time
employment. Poling testified, however, that she never made
such a statement to White. Gibson concurred that permanent
full-time status is not automatically extended to every PMI
referral, although it is extended 95 percent of the time.
Howard testified that 2 weeks after White started in October,
he assigned her to work the salad commissary. White said she
didn’t want that job. He asked what was wrong and she said she
did not like to work there because it was too fast. Howard ac-
commodated White and reassigned her. A few days later, he
gave her another assignment and she again said she didn’t want
that job. Howard took White into his office and asked her what
the problem was. She said she did not like to work where he
had assigned her. Howard told her she was not always going to
be able to do the jobs she wanted to because he had to schedule
employees where he needed them. Howard told her she needed
to show him some initiative and that she wanted to work. Nev-
ertheless, Howard reassigned her a second time. Howard also
made a contemporaneous record of his conversation as was his
habit.
On November 21, White told Howard she did not want to
work where she had been assigned. She said she couldn’t keep
up with the line and wanted to work alongside her exhusband.
Howard refused to move her but told her he would assign
someone to help her if she needed it.
On Saturday, December 1, Howard scheduled White to work
in the glaze pack-off area. According to Howard, White said
she did not want to work in that area. Howard told her she was
being sent home for refusing to do her job and he told her to
report back to PMI. White’s version is that she did not refuse to
do the job Howard has assigned her, nor did she object to it.
White testified she was half asleep, just looking at the work
schedule when Howard said she had an attitude, that she threw
a fit whenever she didn’t want to work with someone, and that
she should go home for the day. White said she was too tired to
argue and went home.
White testified that on Monday, December 3, she reported
for work. According to White, Moeller saw her and asked to
speak with her. They went into his office and she took her coat
off, displaying the union buttons. Moeller said that he and
Howard had evaluated her chart and that she could not get
along with others, that she had a bad attitude, and that she had
used too many hours. White objected and said she had just
gotten a certificate for good production and that she had per-
mission to spend time with her father in the hospital. She also
said she got along well with other people. Moeller said she
should go to PMI and find another job.
Moeller testified that it was Howard, not he, who terminated
White and that he was not present when she was terminated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
2. Analysis
a. Credibility
Howard was an entirely credible witness. He was candid,
forthright, and had an open, even-tempered demeanor. He was
as cooperative a witness on cross-examination as he was on
direct. When he testified that he frankly didn’t care what
White’s opinion was about the Union, he just needed her to do
her job, I found him entirely believable. White, on the other
hand, was far less impressive. She was “positive” that it was
Fleming who spoke to her in the breakroom, and testified it
couldn’t have been Schebler because she didn’t know who he
was and couldn’t even pronounce his name. When shown the
statement she had given the union within hours of the conversa-
tion in which she stated that it was Schebler with whom she
spoke, White resorted to the excuse that she didn’t read the
statement, she only signed it. White was similarly not credible
when she testified she was told by Poling that she was guaran-
teed employment at Respondent once she worked 300 hours.
Poling credibly denied that she never made such a statement,
and Poling’s testimony was corroborated by Gibson who credi-
bly testified that employment with Respondent is never guaran-
teed. For these reasons, and based upon my observation of
White and her demeanor on the witness stand, I credit her tes-
timony only where indicated.
b. October 16 conversation
Schebler admitted that he had a conversation with White in
the smoking breakroom in October. Crediting Schebler’s ver-
sion of this conversation, I find he did not interrogate White, as
alleged in the complaint. Moreover, Schebler was not alleged as
a supervisor or agent of Respondent in the complaint, and the
General Counsel has not moved to amend the complaint in its
posthearing brief.16 I therefore recommend paragraph 5(i) of the
complaint be dismissed.
c. White’s discharge
Applying the Wright Line principles to the facts of White’s
discharge, I find, based on the record as a whole, that while the
General Counsel has established Respondent’s knowledge of
White’s union activity, he has failed to establish that the activ-
ity was a motivating factor in her discharge. He therefore has
failed to satisfy his initial burden under Wright Line.
There is no evidence that White was treated disparately from
similarly situated employees. The General Counsel argues in
his brief that White was discharged just as she was reaching
300 hours of employment which would have made her eligible
for permanent employee status and therefore, eligible to vote in
any future election. To the contrary, the credible evidence es-
tablishes that White was not guaranteed a permanent position
upon her attainment of 300 hours, nor was any other PMI-
referred employee. It is true that White received a certificate for
her work on a production line, but so did 99 percent of all the
employees employed at the facility. In a 60-day period, White
refused two work assignments and was reassigned; refused a

16 The General Counsel was asked during the hearing if he wished to
amend the complaint to allege that it was Schebler who spoke with
White, not Fleming. The General Counsel declined.
third work assignment and was not reassigned; refused a fourth
assignment, and was fired. The General Counsel offered no
evidence of other employees, whether referred by PMI or not,
who were able to retain their employment after refusing four
work assignments.
Nor is there evidence that Respondent harbored animus for
White’s union activity. There was no expression of animus
toward White, and as previously discussed in connection with
Danforth’s discharge, I have found only two isolated instances
of 8(a)(1) conduct by Rod Taylor, and neither of those incidents
played any role in Howard’s decision to terminate White.
Respondent terminated White because she repeatedly refused
work assignments, and not because of her activities on behalf of
the union. I therefore recommend complaint paragraphs 6(b)
and (c) be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has
engaged in unfair labor practices affecting commerce within the
meaning of Sections 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. In June 2001, Respondent, by Rod Taylor, violated Sec-
tion 8(a)(1) of the Act by telling an employee she could not
discuss the Union on company time, and by threatening her
with discharge if she violated that rule.
4. In June 2001, Respondent, by Rod Taylor, violated Sec-
tion 8(a)(1) of the Act by creating the impression that an em-
ployee’s union activity was under surveillance.
5. On October 17, 2001, Respondent, by Rod Taylor, vio-
lated Section 8(a)(1) of the Act by threatening an employee
with plant closure and relocation if employees selected the
union as their collective-bargaining representative.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, The Kroger Co., d/b/a K.B. Specialty
Foods Co., Greensburg, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Telling employees that they cannot discuss the Union on
company time.
(b) Telling employees that they are subject to termination if
they discuss the Union on company time.
17 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.

K.B. SPECIALTY FOODS CO. 759
(c) Creating the impression that employees’ union activities
are under surveillance.
(d) Threatening employees with plant closure and relocation
if employees select the Union as their collective-bargaining
representative.
(e) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Greensburg, Indiana, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 1, 2001.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

18 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.”
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 any 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 tell you that you cannot discuss the United
Food and Commercial Workers Union Local 700, a/w United
Food and Commercial Workers International Union, AFL–CIO
(UFCW), or any other union, on company time.
WE WILL NOT tell you that you are subject to termination if
you discuss the UFCW, or any other union, on company time.
WE WILL NOT create the impression that your activities on
behalf of the UFCW, or any other union, are under surveillance.
WE WILL NOT threaten you with plant closure or relocation if
you select the UFCW, or any other union, as your collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

THE KROGER CO., D/B/A K.B. SPECIALTY FOODS CO.