LIBERTY BAKERY KITCHEN INC.

National Labor Relations Board - Board Decisions

Feb 16, 2018

366 NLRB No. 19 (N.L.R.B. 2018)

366 NLRB No. 19
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Liberty Bakery Kitchen, Inc. and International
Brotherhood of Teamsters, Local 653. Cases 01–
CA–181081 and 01–CA–191349
February 16, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
On May 25, 2017, Administrative Law Judge Eliza-
beth M. Tafe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. In addition,
the General Counsel filed limited cross-exceptions and a
supporting brief, and 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 conclusions,
and to adopt the recommended Order.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by unlawfully withdrawing recognition from
the Union, we emphasize that the document the Respondent relied on in
withdrawing recognition contained no statement of the employees’
desires concerning union representation. See, e.g., Highlands Regional
Medical Center, 347 NLRB 1404, 1406 (2006) (withdrawal of recogni-
tion unlawful where “the petition [did] not state that the signers desire
not to be represented by the Union, nor [did] it request that the Re-
spondent withdraw recognition from the Union”), enfd. 508 F.3d 28
(D.C. Cir. 2007). This case is therefore distinguishable from Wurtland
Nursing & Rehabilitation Center, 351 NLRB 817, 817 (2007), which
involved a petition that contained explicit language regarding employ-
ees’ sentiments regarding representation. Member McFerran agrees
that Wurtland Nursing is distinguishable, but also questions the ra-
tionale expressed in that case that a request for a decertification elec-
tion, even if the document indicates how employees intend to vote, is
objective evidence of a loss of majority support. We also find that
employee Frederick Robinson’s subsequent written addition to the
document solely represented his views and did not provide objective
evidence of the sentiments of the other signatory employees. Finally,
we reject the Respondent’s contention that its concerns about potential
8(a)(2) liability justified its withdrawal of recognition, because the
document the employees presented to the Respondent was insufficient
evidence of an actual loss of majority support. Moreover, the Re-
spondent could have addressed its concerns by filing an RM petition
instead of withdrawing recognition. See Levitz Furniture Co. of the
AMENDED REMEDY
We adopt the judge’s recommended remedies, and fur-
ther explain why, under Caterair International, 322
NLRB 64 (1996), an affirmative bargaining order is war-
ranted in this case as a remedy for the Respondent’s un-
lawful withdrawal of recognition. We adhere to the view
that an affirmative bargaining order is “the traditional,
appropriate remedy for an 8(a)(5) refusal to bargain with
the lawful collective-bargaining representative of an ap-
propriate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1462
(D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d
1243, 1248 (D.C. Cir. 1994). In Vincent, supra at 738,
the court summarized its requirement that an affirmative
bargaining order “must be justified by a reasoned analy-
sis that includes an explicit balancing of three considera-
tions: (1) the employees’ [Section] 7 rights; (2) whether
other purposes of the Act override the rights of employ-
ees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the Act.”
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case as the
court requires and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.

Pacific, 333 NLRB 717, 724 (2001) (“[A]n employer that has evidence
of actual loss of majority support will not violate Section 8(a)(2) if it
files an RM petition and continues to recognize the union while elec-
tion proceedings are ongoing.”).
Chairman Kaplan does not rely on the judge’s statement that the re-
quest for additional language on the document “reveal[ed] that the
Respondent understood at the time that the intent of the employees’
signatures was not clear.”
We also adopt the judge’s finding that the Respondent’s grant of a
wage increase violated Sec. 8(a)(5), (3), and (1). With respect to the
Sec. 8(a)(3) finding, we find it unnecessary to pass on the judge’s dis-
cussion of NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), and
instead rely on the judge’s alternative analysis under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). In adopting the judge’s animus finding, however,
we rely on the pretextual justifications for the wage increase, the timing
of the wage increases, the lack of a past practice of comparable wage
increases, and the descriptions of the wage increase in the Respondent’s
campaign literature.
Member Pearce agrees with the judge that the Respondent’s incon-
sistent grant of the $3-per-hour wage increase, and its selective applica-
tion of the $14.65 wage cap provide additional evidence of animus.
2 We shall substitute a new notice to conform to the Board’s stand-
ard remedial language.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and resulting re-
fusal to bargain with the Union. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation. To the extent
such opposition exists, moreover, it may be at least in
part the product of the Respondent’s unfair labor practic-
es.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured by the Re-
spondent’s withdrawal of recognition to achieve immedi-
ate results at the bargaining table following the Board’s
resolution of its unfair labor practice charges and issu-
ance of a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances, because it would per-
mit another challenge to the Union’s majority status be-
fore the taint of the Respondent’s unlawful withdrawal of
recognition has dissipated, and before the employees
have had a reasonable time to regroup and bargain
through their representative in an effort to reach a collec-
tive-bargaining agreement. Such a result would be par-
ticularly unjust in circumstances such as those here,
where the Respondent’s withdrawal of recognition would
likely have a continuing effect, thereby tainting any em-
ployee disaffection from the Union arising during that
period or immediately thereafter. We find that these cir-
cumstances outweigh the temporary impact the affirma-
tive bargaining order will have on the rights of employ-
ees who oppose continued union representation. In order
to provide employees with the opportunity to fairly as-
sess for themselves the Union’s effectiveness as a bar-
gaining representative, the bargaining order requires the
Respondent to bargain with the Union for a reasonable
period of time.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Liberty Bakery Kitchen, Inc.,
Brockton, Massachusetts, its officers, agents, successors,
and assigns shall take the actions set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.
Dated, Washington, D.C. February 16, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with Interna-
tional Brotherhood of Teamsters, Local 653 (the Union)
as the exclusive collective-bargaining representative of
our employees in the bargaining unit.
WE WILL NOT interrogate you about your union activity
or support, including interrogating you in a manner that
impliedly solicits your rejection of the Union and/or im-
pliedly reveals surveillance of the union activity of other
employees.
LIBERTY BAKERY KITCHEN, INC. 3
WE WILL NOT unlawfully withdraw recognition from
the Union as the exclusive bargaining representative of
our bargaining unit employees.
WE WILL NOT change your wages, hours, or other
terms and conditions of employment without first notify-
ing the Union and giving the Union an opportunity to
bargain about the changes.
WE WILL NOT change your wages, hours, or other
terms and conditions of employment in order to discour-
age union support or to encourage or reward your disaf-
fection from the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our delivery drivers concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement. The
unit is as follows:
All full-time and regular part-time drivers employed by
the Employer at its 125 Liberty Street, Brockton, Mas-
sachusetts facility, but excluding office clerical em-
ployees, all other employees, guards, and supervisors,
as defined by the Act.
LIBERTY BAKERY KITCHEN, INC.
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-181081 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
.
Daniel F. Fein, Esq. and Emily G. Goldman, Esq., for the Gen-
eral Counsel.
Geoffrey P. Wermuth, Esq. (Murphy, Hesse, Toomey & Lehane,
LLP), of Quincy, Massachusetts, for the Respondent.
Nicholas M. Chalupa, Esq. (Feinberg, Campbell & Zack, P.C.),
of Boston, Massachusetts, for the Charging Party.
DECISION
ELIZABETH M. TAFE, Administrative Law Judge. This case
concerns a commercial bakery’s withdrawal of recognition of
its delivery drivers’ union. The bakery withdrew recognition
based on signatures of a majority of the drivers on a page that
contained summaries of relevant Board law and procedures,
excerpted from the NLRB’s website and public information.
The General Counsel alleges that the withdrawal of recognition
was unlawful because the bakery did not have objective evi-
dence of actual loss of majority support. The General Counsel
also alleges that a supervisor unlawfully interrogated a driver
about the decertification effort and/or solicited his support.
Finally, the General Counsel alleges the bakery unlawfully
granted wage increases after the withdrawal of recognition.1
The bakery denies violating the Act. Regarding the withdrawal
of recognition, it asserts that the page of signatures was suffi-
cient objective evidence to support a conclusion that the union
had lost majority support.
As discussed below, I find that the evidence fails to establish
that there was objective evidence of an actual loss of majority
support, as is required by the Board’s current standard set forth
in Levitz Furniture of the Pacific, 333 NLRB 717 (2001), be-
cause the employees’ intent was not clear and cannot be inter-
preted as more reasonably read to express nonsupport for the
union rather than a desire for a secret-ballot election. Conse-
quently, I find the subsequent failures to bargain and the unilat-
erally implemented wage increases were unlawful. I further
find that the wage increases were discriminatorily motivated.
As for the alleged unlawful statements, I find the interrogation
unlawful, but that the unlawful solicitation allegation is not
supported and that allegation is dismissed.
STATEMENT OF THE CASE
On July 27, 2016, The International Brotherhood of Team-
sters, Local 653 (Union or Charging Party) filed an unfair labor
practice charge against Liberty Bakery Kitchens, Inc. (Re-
spondent or Liberty), docketed by Region One of the National
Labor Relations Board (Board or NLRB) as Case 01–CA–
181081. The Union filed amended charges on October 26,
2016, and January 13, 2017. The Union filed a charge and an
amended charge in Case 01–CA–191349 on January 17, 2017,
and January 26, 2017, respectively.
On November 30, 2016, based on an investigation into the
charge filed in Case 01–CA–181081, the General Counsel, by
the Regional Director for Region One, issued a complaint and
notice of hearing against Liberty. On January 13, 2017, the
General Counsel filed an amended complaint, alleging viola-
tions of Section 8(a)(5) and (1) of the National Labor Relations
Act (Act). The Respondent filed timely answers to the com-
plaint and amended complaint, denying all violations of the
Act. On January 27, 2017, the General Counsel filed a Notice
of Intent to Amend the Complaint to Consolidate Cases 01–

1 The General Counsel also urges the Board to reconsider its legal
standard set forth in Levitz Furniture, below, arguing, inter alia, that it
has been shown to be unworkable. As explained below, I am bound by
current Board precedent and leave it to the Board, at its discretion, to
consider the parties’ positions on this question.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CA–181081 and 01–CA–191349 and alleged additional viola-
tions of Section 8(a)(5), (3), and (1) of the Act. The Respond-
ent objected to the Notice of Intent to amend.
A 2-day trial was conducted on January 31 and February 2,
2017, in Boston, Massachusetts, at which time all parties had an
opportunity to present evidence and to call and examine wit-
nesses. I granted the General Counsel’s motion to amend the
complaint pursuant to the Notice of Intent to Amend over the
Respondent’s objections.2 Counsel for the General Counsel
and the Respondent filed posthearing briefs.
On the entire record,3 including my observations of the de-
meanor of the witnesses, and after considering arguments made
at the trial and in posthearing briefs, I make the following find-
ings, conclusions of law, and recommended remedy and order.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it is a corporation

2 I overruled the Respondent’s objections that the amendments were
unfair and violated due process. Pursuant Section 102.17 of the Board’s
Rules and Regulations, I granted the General Counsel’s motion to
amend the complaint as described in GC Exh. 1(r), Notice of Intent to
Amend Amended Complaint. The new allegations in Case 01–CA–
191349 relate to wage increases that occurred several months after the
incidents alleged in the complaint. The new charge was served 2 weeks
before the hearing opened, and the Notice of Intent to Amend was
served 2 working days before the hearing opened. Although the new
allegations are factually related to the original complaint allegations,
significantly, the new allegations include an 8(a)(3) theory, which is
substantively different from the 8(a)(5) and (1) allegations in the
amended complaint, requiring the Respondent to prepare a different
defense. That said, the new allegations relate to a discrete wage in-
crease relevant to issues in the complaint. My ruling recognized that
the new allegations cause some burden to the Respondent, but I found
that the Respondent was not prejudiced by the addition of the new
allegations. The Respondent had an opportunity to request additional
time to prepare a defense after the General Counsel rested, which the
Respondent did not seek. The Respondent also had an extra day be-
tween hearing dates to respond to the General Counsel’s related sub-
poena requests. On brief, the Respondent renews its objection and asks
me to reconsider this ruling; however, the Respondent raises no new
issues not already considered. I reaffirm my ruling to allow the
amendment.
I grant General Counsel’s unopposed posthearing motion to supple-
ment the record due to administrative omissions. I thereby receive the
following exhibits: GC Exh. 1(s), Corrected Notice of Intent to Amend
the Amended Complaint; GC Exh. 1(t), Email confirming service of
GC Exh. 1(s); and amendments to GC Exh. 1(q), the index to the for-
mal papers, to include GC Exhs. 1(r) to (t). Hereafter, I refer to the
amended complaint, as consolidated and further amended by the Cor-
rected Notice of Intent to Amend, simply as the complaint. I note that
the correction to GC Exh. 1(r) as evidenced in GC Exh. 1(s) changes
only the service date of the amended charge in 01–CA–191349 from
January 26 to January 27, 2017.
3 I grant the Respondent’s implied motion at R. Brief at 7, fn. 2 to
correct the official transcript at Tr. 39:10–13, so that the transcript
reads:
Q Okay, thank you. And since July 25th 2016, you have not been in
communication phone or email, for example, with the Union regard-
ing Liberty Bakery’s drivers for any other reason, is that correct?
A Correct.
with an office and place of business in Brockton, Massachu-
setts, where it engages in the business of production, nonretail
sale, and distribution of food products. The Respondent further
admits, and I find, that it annually sells goods valued in excess
of $50,000 directly to customers outside the Commonwealth of
Massachusetts, and annually purchases and receives goods
valued in excess of $50,000 directly from other enterprises
located within the Commonwealth of Massachusetts who had
received those goods directly from points outside the Com-
monwealth of Massachusetts. The Respondent admits, and I
find, that at all material times it has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent admits, and I find, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act. Based on the foregoing, I find that this dispute affects
commerce and that the Board has jurisdiction of this case, pur-
suant to Section 10(a) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Parties and Their Relationship
Liberty is a commercial bakery that produces, processes, and
delivers donuts and other baked goods to stores, including
Dunkin’ Donuts stores. It employs 14 delivery drivers and
almost 100 “inside” employees, including bakers, production
employees (finishers and packers) and cleaners. Paul H.
Wright, who testified at the hearing, has been the general man-
ager for about 10 years. He runs the operation, ensuring that
the building is operational, and that employees are available
and trained to make and distribute the products daily. He is
also responsible for interacting with the accountants in the pro-
duction of financial statements. Two production managers
report to Wright, one of whom is always on duty. Department
heads or managers report to the production managers, and su-
pervisors report to the department heads and managers. Some
employees speak English; others speak several dialects of Por-
tuguese, including Cape Verdean and Brazilian dialects. Some
employees function in both English and Portuguese. Typically,
the drivers work overnight shifts delivering products.
On May 8, 2015, following an election conducted by the
NLRB, the Union was certified as the exclusive collective-
bargaining representative of Respondent’s delivery drivers.4
Driver Thomas E. Lydon, III was elected union steward and
continues to serve in that role. Lydon has worked for Liberty
as a delivery driver since July 4, 2004. His shift begins be-
tween midnight and 1:30 a.m. and ends about 8 a.m. Lydon
participated in collective bargaining on behalf of the Union as a
member of the Union’s contract negotiations team, for which
the Union reimbursed his lost wages.5 Brian McElhaney from
the Union and Attorney Nicholas Chalupa also participated on
behalf of the Union. Wright and Attorney Geoffrey Wermuth
participated in negotiations for the Respondent. The parties

4 The certified bargaining unit is described in GC Exh. 2:
All full-time and regular part-time drivers employed by the Employer
at its 125 Liberty Street, Brockton, Massachusetts facility, but exclud-
ing office clerical employees, all other employees, guards, and super-
visors, as defined in the Act.
5 Lydon was not paid for union organizing.
LIBERTY BAKERY KITCHEN, INC. 5
met about nine times from July 2015 through July 2016 and
reached tentative agreements on certain noneconomic terms as
set forth in Jt. Exh.1 (A)(1) to (3), but they never concluded a
complete collective-bargaining agreement.
At the hearing it was revealed that the Union was attempting
to organize the “inside” or production employees in a separate
bargaining unit in January 2017, and that a related representa-
tion petition was pending. The record does not establish when
organizing of these employees began, or when the Respondent
knew of these organizing efforts.6
B. Employee Disaffection in Spring 2016 and Respondent’s
Withdrawal of Recognition
1. Initiation of employees’ efforts against the Union.
On about May 25, 2016, three drivers, Frederick Robinson,
Emanuel Cunningham, and Emilio Depina, approached Wright
in his office and asked him for information “on how to get out
of the Union or get the Union out.” (Tr. 33:24–34:2.) They
asked him “if there is a way to ‘get the Union out of here.’” (Jt.
Exh. 1(F).) The record does not establish the precise words that
any one employee actually said to Wright in this encounter, or
who said what, and none of the three employees was called to
testify. As set forth in Joint Exhibit 1(F) and Wright’s testimo-
ny, Wright responded that he thought there was a way, but that
they would have to do the work themselves. “They” reportedly
asked him if he could get information about what they needed
to do. Wright emailed his attorney, Wermuth, to inquire, and
Wermuth sent him an email containing the information in Joint
Exhibit 1(G). Wermuth represented that he obtained the infor-
mation in Joint Exhibit 1(G) from the NLRB’s public website
and from a May 9, 2016 General Counsel’s memorandum refer-
ring to extant Board law. This “informative page” was not
designed to be a petition. With Joint Exhibit 1(G), Wermuth
also sent a 2-page copy of Description of Representation Case
Procedures in Certification and Decertification Cases, Form
NLRB-4812 (4-15). (GC Exh. 3(a)-(b).)7 Joint Exhibit 1(G)
states in its entirety (format in original):
From www.nlrb.gov:
Decertification election __________________________
Have a union, but don’t want it anymore, or want a different
one?
Under certain circumstances, you can vote out or “decertify”
your union, or replace it with a different union. At least 30%
of your coworkers must sign cards or a petition asking the
NLRB to conduct an election. Unless a majority of the votes
cast in the election are in favor of union representation, the
union it will be decertified [sic]. Such elections are barred,
however, for one year following the union’s certification by
the NLRB. Plus, if your employer and union reach a collec-
tive-bargaining agreement, you cannot ask for a decertifica-
tion election (or an election to bring in another union) during

6 Although some facts overlap, the status or fate of the “inside” em-
ployees’ representation petition is not the subject of the present case.
7 The record does not establish whether these attachments were also
provided to Robinson with the informative page.
the first three years of that agreement, except during a 30-day
“window period.” That period begins 90 days and ends 60
days before the agreement expires (120 and 90 days if your
employer is a healthcare institution). After a collective-
bargaining agreement passes the three-year mark or expires,
you may ask for an election to decertify your union or to vote
in another union at any time.
[The petition must be filed with the National Labor Relations
Board, Region 1, 10 Causeway St., 6th Floor, Boston, MA
02222-1072, (617) 565-6700.]
From the NLRB General Counsel MEMORANDUM GC 16-
03, May 09, 2016:
Extant Board law permits employers to unilaterally
withdraw recognition from an incumbent union based
on objective evidence that the union has actually lost
majority support. See Levitz Furniture Co. of the Pa-
cific, 333 NLRB 717, 717 (2001).
A few days after receiving it from Wermuth on May 25, Wright
gave a copy of Joint Exhibit 1(G) to Robinson.
2. Supervisor Rodrigues’ statements.
Employee Lawrence Leonard testified at the hearing. He has
worked for Liberty for 11 years as a driver. Leonard usually
works nights from about 12:30 a.m. to 6:30 a.m., Friday
through Tuesday. Like the other drivers, he loads his truck at
the beginning of his shift, then delivers baked goods to Dunkin’
Donuts stores. He returns at about 4:30 or 5 a.m. and unloads
the truck, which is then cleaned by other employees. Marcelino
(Charlie) Rodrigues is his direct supervisor. Employee Robin-
son is Rodrigues’ son-in-law.
One morning in mid-July, when Leonard was unloading his
truck at the end of a shift, Robinson approached him about
signing a document. According to Leonard, Robinson said that
he was “sending a piece of white paper for the truck drivers to
sign, because they wanted to vote out the union.” (Tr. 85:18.)
Robinson asked Leonard if he wanted to sign it, and Leonard
declined. Robinson said that if he signed it, he wouldn’t have
to worry about getting fired, and Leonard did not respond.
Robinson offered to show Leonard the white piece of paper
with names on it. Leonard apparently did not respond and the
conversation ended.
According to Leonard, about a half hour after speaking with
Robinson, he passed Supervisor Rodrigues in the parking lot
after he had punched out. Leonard said, see you tonight. Ro-
drigues said to Leonard, “so, Larry, do you want to sign that?”
Leonard asked, “what?” Rodrigues responded, “you know
what.” Leonard said that he “did not want to get involved.”
Rodrigues said, “you are involved.” (Tr. 85:25-86:10.) Leon-
ard testified that he understood Rodrigues to be referring to the
paper Robinson had asked him to sign. He testified that he
understood what Rodrigues meant and told him he did not want
to get involved, because, earlier while unloading trucks on the
dock, he observed that everyone was “in a commotion about the
Union gone.” They were happy about it, but he was in shock,
because he was “the last person to know about this white piece
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of paper.”8 (Tr. 86:11-87:2.) Upon exiting the parking area,
Leonard had a brief exchange with coworker Pierre about
whether Rodrigues had asked Pierre to sign the paper.9
Neither Rodrigues nor Robinson was called to testify.
3. Compilation of employee signatures and withdrawal
of recognition.
On about July 19, 2016, Robinson returned to Wright a copy
of Joint Exhibit 1(G) with the signatures of nine drivers added
to it (Jt. Exh. 1(H)). Wright recognized these signatures to be
those of nine bargaining unit employees.10 At the time, there
were 14 drivers in the bargaining unit. The only markings on
Joint Exhibit 1(H) were the signatures, numbered one to nine.
After consulting with Wermuth, Wright provided additional
language to Robinson and told Robinson that based on the in-
formation he had received from Attorney Wermuth, Robinson
would need to add that language to Joint Exhibit 1(H). Per
Wright’s instructions, Robinson returned the “informative
page” to Wright, now containing the suggested additional lan-
guage in handwriting and signed by Robinson (Jt. Exh. 1(I)). 11
The additional, handwritten language states:
This petition is to request our employer Liberty Bakery. Inc.
to withdraw recognition from teamsters Local 653. I Freder-
ick Robinson certify that all the people who sign this petition
did so after May 25, 2016. [signed by Robinson]
Wright sent Joint Exhibit 1(I) to Wermuth shortly after he re-
ceived it. On July 25, 2016, relying on this “petition” the Re-
spondent withdrew recognition of the Union by a letter from
Wermuth to Chalupa (Jt. Exh. 1(K)). The signatures represent
nine of the 14 drivers at the time, a clear majority of bargaining
unit employees.12 The Respondent cancelled scheduled bar-
gaining sessions and has not met with the Union for purposes of
collective bargaining or any other reason concerning its drivers
since then.

8 At the hearing, counsel for the General Counsel occasionally re-
ferred to a “blank” piece of paper, but the witnesses did not use that
term.
9 I deny the Respondent’s request on brief that I reconsider its hear-
say objection to the admission of evidence of this conversation, which
was not admitted for the truth of what Pierre said.
10 The informative page was signed by the three drivers who origi-
nally approached Wright on May 25 with questions about ousting the
Union and six others.
11 At the hearing, I received the parties’ stipulation that the marks
jotted to the right of each signature on Jt. Exh. 1(I) were inadvertently
made by counsel and have no meaning or relevance on this the record.
There is no allegation that the Respondent’s sharing of this infor-
mation about the decertification and withdrawal of recognition proce-
dures with Robinson was unlawful; I find, based on this record, that the
Respondent’s assistance was no more than permissive, ministerial
assistance.
12 Jt. Exh. 3(b), Attachments B and C, shows there were 14 drivers in
April 2016 and 14 drivers in November 2016. I infer from this that
there were at least 14 drivers on July 25, 2016, when the Respondent
withdrew recognition. Although Jt. Exh. 3(b), Attachment A suggests
there were 18 drivers in March 2015, no evidence establishes or even
suggests that the nine signatures on Jt. Exh. 1(H) and (I) did not repre-
sent a majority of bargaining unit employees in July 2016.
No employee who signed the informative page testified at
the hearing.
C. November 2016 Wage Increases
The parties stipulated that the Respondent granted wage in-
creases to its 14 drivers on November 19, 2016. (See Jt. Exh.
2; Tr. 21:13-22:12.) Other than the 50-cent raises drivers typi-
cally received when they completed an initial probationary
period, the drivers had not received raises since January 2011.
The parties further stipulated that the November 19, 2016 wage
increases were made without notice or opportunity to bargain
with the Union.
The November 2016 increases ranged from $1.50 to $3 per
hour, reflecting percentage increases of from 8.9 to 27.3 per-
cent. All but 2 drivers (12 of the 14) received a $3-per-hour
raise. Similarly, all but two received increases of between 23.8
and 27.3 percent. Lydon, the union steward, received a $1.90
raise, representing a 14.9 percent raise. General Manager
Wright explained that he made the decision to give the drivers
increases because they hadn’t received wage increases in 5
years, while the other employees, had received increases in
January 2015, 2016, and 2017, due to increases in the mandated
state minimum wage in Massachusetts. Wright testified that
the Board of Directors left the decisions regarding the wage
increases to his complete discretion, including both when to
give raises and how much. Wright explained that the state
minimum wage had increased by $1 each of those 3 years,
which influenced his decision that the $3 increase was appro-
priate. He explained that he decided whether to give drivers a
$3 raise or a lower raise for different reasons, and that only a
couple of individuals were affected. Wright explained that he
gave employee Desena a $1.50 raise because he was already
making a significantly higher wage due to having previously
worked as a baker. He gave Lydon only a $1.90 increase, be-
cause he determined that $14.65 would be the “cap” for drivers’
wages. He explained that Lydon’s initial $12.75 hourly wage
was higher than many of the other drivers already because of
longevity and the fact that many drivers were new. He ex-
plained that many drivers involved in the Union had left, so
many drivers were making $11 per hour, the standard starting
rate after a drivers’ probation period. All but Desena, who was
already earning $16.80 per hour, were making between $11 and
$12.75 before the increases, nine of whom were making $11
per hour. Wright also explained that he granted employee
Tavares, who had been earning $12.60 per hour a full $3 raise
that brought him above the $14.65 “cap” because Tavares also
worked as a mechanic. Wright explained that he had “really no
reason” to establish the $14.65 wage cap. (Tr. 138:21–22.) He
had never implemented a wage cap before. In any case, Lydon
was the only driver for whom the $14.65 wage cap established
by Wright resulted in receiving less than the full $3 raise, and
Lydon was the only driver who did not receive a $3 raise, other
than Desena, who initially was making at least $5 per hour
more than any other driver.13

13 At the hearing, the General Counsel orally moved to amend the
complaint to allege that the Respondent’s singling out Union Steward
Lydon for a lower wage rate independently violated the Act, but then
withdrew the motion after the Respondent expressly waived its right to
LIBERTY BAKERY KITCHEN, INC. 7
The Respondent produced General Counsel Exhibit 5, a chart
that Wright had prepared and submitted to the Respondent’s
Board of Directors at the October 2016 Board meeting.14 The
chart originally showed the effects on product costs of various
potential wage increases, but the product cost information was
redacted in General Counsel Exhibit 5 by the parties’ agree-
ment. The document contained projected product cost effects
for ten incremental raises for employees, including drivers,
bakers, production workers, and cleaners. For drivers, the rais-
es considered were: $1, $1.50, $2, $2.25, $2.50, $2.75, $3,
$3.25, $3.50, and $3.75 per hour. For the other employees, the
raises considered were: 25 cents, 50 cents, 60 cents, 70 cents,
80 cents, 90 cents, $1, $1.10, $1.20, and $1.30 per hour. The
bakers, production workers, and cleaners received raises of
approximately 50 cents in their first paycheck in January 2017,
at a different time from the drivers. The state minimum wage
rose to $11 per hour in January 2017. In January 2015 and
January 2016, the Respondent had similarly granted wage in-
creases to the “inside” employees due to the change in the min-
imum wage. With respect to the timing of the drivers’ wage
increases in November 2016, Wright explained that he recog-
nized that they hadn’t received wage increases since 2011, even
though other employees had, and he thought it would be nice
for them to have a raise before the holidays. There was no
other reason given for the drivers’ raises to be granted in No-
vember rather than in January, like the other employees. 15
Wright testified that the Board of Directors granted him the
authority to decide whether and when to grant the raises and at
what rates. He testified that he had complete discretion and
that the Board of Directors did not tell him what raises to give,
and that he was given free rein to grant raises by the Board of
Directors at the October meeting. The Board of Directors did
not sign off on a specific raise amount. He further testified that
he believes that the Board of Directors discussed wage increas-
es and General Counsel Exhibit 5 at the October meeting, but
he does not recall what was said or by whom. He does not

assert that it would run afoul of due process for the General Counsel to
have failed to raise the allegation in the current complaint. See Jeffer-
son Chemical Co., Inc., 200 NLRB 992, 992 fn. 3 (1972) (Affirming
the dismissal of complaint allegations about which the General Counsel
had known while litigating a prior, factually-related charge, the Board
majority explained that the General Counsel is duty-bound to investi-
gate all matters which are encompassed by a charge, and to proceed
appropriately thereafter.) Therefore, although I consider these facts as
presented as they relate to the issues before me, I make no specific
determination whether Respondent’s treatment of Lydon with respect to
the wage increases separately violates the Act.
14 Wright reports to the Board of Directors and attends their meet-
ings, which occur every 4 to 6 months, except in the summer. He testi-
fied that no formal notes or minutes are taken at the meetings, although
some of the seven directors may take their own notes. He sometimes
takes brief notes on an agenda he prepares for the meeting, and typical-
ly keeps those filed in his office.
15 The record does not establish when the Union’s organizing of the
production workers and cleaners began, or when the Respondent
learned of it. It also does not establish whether the bakers are included
in this effort. There is an absence of evidence of union organizing
activity related to the inside workers as of November 19, 2016, on this
record.
recall any Board Members taking notes at the October meeting,
and he inquired of Board Members whether they had personal
notes and no notes were identified. He testified that no formal
record, minutes, or notes are kept memorializing Board meet-
ings, although he generally keeps a copy of the agenda he pre-
pares for the meeting, with any notes he has taken on it.16
During contract negotiations, the Union initially proposed
wage increases to reach $18 per hour, as well as significant
health and welfare benefits, including $11 per hour for Team-
sters Health & Welfare plan, $1 per hour to Teamsters Pension
plan, a 50 percent match up to 6 percent to the Teamsters
401(k) plan, as well as additional personal days and paid holi-
days. For entry level drivers making $11 per hour, this pro-
posal included a wage increase alone of about 64 percent. The
Respondent countered in bargaining with an initial wage pro-
posal was for an increase of 5 cents per hour, then shortly
moved its offer to 25 cents per hour. Twenty-five cents per
hour would have been a 2.2 percent raise for the drivers earning
$11 per hour.
In January 2017, the Respondent handed out and posted
campaign literature in the Brockton plant related to the Union’s
efforts to organize the “inside” employees, i.e., the bakers,
production workers, and cleaners. This literature identified that
the Union had “filed a petition to represent certain Liberty Bak-
ery employees.” It was available in Portuguese as well as Eng-
lish.17 It contained various campaign related statements, in-
cluding stating that the election will be by secret ballot, that
employees can decide for themselves whether they want to join
the union, that the Company will not violate that right but pre-
fers to work with employees directly, that a union may mislead
employees, because unions want employees’ money, and that
just signing a union card does not guarantee you more money.
Of particular relevance here, the Respondent’s campaign litera-
ture stated the following (emphases in original):
Examples of common union tricks are:
. . .
TRICK 2: Union Promises - Did you know that the union
can make a promise and not have to keep it? Employees do
not get a raise just because they join a union. Any changes in
your pay, benefits, or other important workplace conditions
would have to be negotiated. The law does not even force

16 No such agenda was produced for the October meeting. GC Exh. 5
served as the agenda in October meeting, although it does not contain
any notes. As noted above, I continued the hearing for a day, which
provided the Respondent additional time to search records in response
to the General Counsel’s assertion that these historic agendas and
handwritten notes were covered by the subpoena, Jt. Exh. 3(a). No
formal petition to revoke or motion for sanctions was raised at the
hearing, so none was ruled on.
17 At the hearing, there was testimony elicited about different dia-
lects of Portuguese that may be spoken by some employees, a sugges-
tion that some employees may not read in either English or Portuguese,
and whether posters/literature may have been translated into different
dialects. This testimony was not entirely clear or consistent. For the
purposes of this case, I do not find a need to determine the extent of
literacy of the workers. Moreover, I note that no party argued that the
extent of the literacy of the workers was a material issue in this case.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Company to agree with union demands. The Team-
sters made many empty promises to the truck drivers that did
not come true. After two long years, the drivers still have no
contract and want out of the union. We felt that it was time to
give them a fair raise and made the decision to do it. The raise
was given because it was the right thing to do and not be-
cause the drivers belonged to the union.
The above excerpt was situated in the middle of a page of text,
with white space separating it from the paragraphs before and
after it. It was handed out as a 1-page document to all nondriv-
er employees in January 2017. It was also enlarged and posted
on walls in the plant’s hallway and break room in late-
January/early-February 2017.
Analysis
A. Alleged 8(a)(1) Interrogation
The General Counsel alleges that Supervisor Rodrigues un-
lawfully interrogated Leonard about his union activity in viola-
tion of Section 8(a)(1) by Rodrigues’ inquiries of Leonard
shortly after coworker Robinson had asked Leonard to sign a
paper to get the union out.18 The Respondent presented no
direct evidence to refute this allegation, and did not call Ro-
drigues to testify, but denies this allegation, arguing that the
General Counsel did not establish the violation in its case-in-
chief, either because Leonard’s statements were too vague or
inconsistent to be credited, or because, even if credited, they
were not shown to be coercive.
Although Leonard’s unrebutted testimony was somewhat
vague in part, I find it sufficiently clear to establish what Ro-
drigues said to him and in what context. Leonard testified that,
about a half hour after Robinson approached him to sign a pa-
per to get the union out, Rodrigues asked him, “so, Larry, do
you want to sign that?” When Leonard responded, what? Ro-
drigues responded, “you know what.” When Leonard stated, he
did not want to get involved, Rodrigues responded, “you are
involved.” This exchange strikes me as plausible and con-
sistent. Leonard appeared sincere, and testified in a straight-
forward manner, without enhancement or exaggeration. His
reluctance to talk to Rodrigues about signing the paper was
consistent with his reluctance to talk to Robinson about it earli-
er. His “short and sweet” manner of speech was also consistent
with his related testimony that, as he left, he rolled down his
window and asked coworker Pierre in simple terms whether

18 Complaint pars. 7(a) and 19. The complaint also alleges at par.
7(b) that the Respondent violated Section 8(a)(1) by soliciting support
of a petition concerning the Union. However, on brief, the General
Counsel’s related arguments are limited to the unlawful interrogation
allegation. These separately pled allegations have much in common
and the General Counsel relies on the same evidence to establish both.
Although the General Counsel has not dropped the separate solicitation
allegation, in light of the absence of legal argument presented specific
to the solicitation allegation, I dismiss the solicitation allegation and
limit my analysis here to the unlawful interrogation allegation. I note
that the General Counsel has not alleged or argued that employee sup-
port for decertification was tainted by the Respondent’s interference or
assistance. As discussed below, I have fully considered that the context
of the interrogation included an implied encouragement or solicitation
to support the decertification effort.
Pierre had been asked to sign the paper. He is still employed
by the Respondent and testifying against his employer’s inter-
est, which lends additional support to my finding his testimony
generally credible.
I have considered that Leonard, who works as an overnight
driver, admitted on the stand that he was tired and I observed
that his demeanor reflected that he was tired. However, he
appeared to do his best to answer the questions as fairly as he
could. On cross-examination, Leonard was reminded that in a
prior sworn statement he had testified that Pierre reported
something different the following day from what he had said in
their short conversation in the parking lot. I credit Leonard’s
response that he did not remember this additional statement on
direct exam, but did not dispute that it was his prior testimony.
I am not persuaded that this omission was intentional under all
the circumstances, or that it weakens Leonard’s credibility re-
garding what Rodrigues said to him. There is no evidence that
his memory about the specific statements made to him by Ro-
drigues were misremembered or inconsistent.
Leonard explained that he understood what Rodrigues meant
because Robinson, who had approached him about the signing
the paper, was Rodrigues’ son-in-law, which suggests that they
were closely associated. He also explained that earlier when
unloading his truck at the dock, the employees were “in a
commotion about the Union gone,” that they were glad, and
that he was the last to know. The Respondent urges me to de-
termine based on this testimony that the conversation with Ro-
drigues, if it took place at all, took place after the Respondent
had withdrawn recognition. I decline to do so. The impreci-
sion of Leonard’s phraseology may be either colloquial or inar-
ticulate, but it is does not cause me to conclude that “gone” in
this context meant the Respondent had already withdrawn
recognition. In light of all the circumstances, I find it most
reasonable to conclude that Leonard meant that they were talk-
ing about the Union “being” gone, without any inferable refer-
ence to when the Union might be gone. It also does not make
sense that Robinson asked him to sign the paper, or that Robin-
son offered to show it to him to convince him to sign it, if Rob-
inson had already submitted it to Wright. In contrast, Leon-
ard’s testimony that he was surprised to first learn of the decer-
tification effort that day from the commotion at the loading
dock, then was asked by Robinson to sign the paper, then was
asked about it by Rodrigues, and, finally, asked coworker
Pierre about it, presents a logical, credible sequence of events.19

19 Leonard further testified that he told Lydon about the exchange
with Rodrigues. Lydon credibly corroborated that Leonard told him
specifically what Rodrigues had said after it was said and shortly before
the Union received a withdrawal of recognition. Lydon’s testimony
was admitted over Respondent’s hearsay objections, as the General
Counsel asserted it was not offered for the truth of the matter asserted.
The Respondent argues on brief that the testimony is hearsay, because
it is offered to buttress the truth of Leonard’s testimony, and therefore
should be excluded. I affirm my ruling to admit this testimony. I find
that it is offered as corroborative hearsay evidence to support the timing
and substance of the statements made to Leonard, not regarding wheth-
er those statements were true. As discussed above, I have credited
Leonard’s testimony about what Rodrigues said to him and its context,
including the timing in relation to the withdrawal of recognition. Alt-
LIBERTY BAKERY KITCHEN, INC. 9
The Board determines whether an employer’s questioning of
an employee about union activity violates Section 8(a)(1) by
considering whether, under all the circumstances, the interroga-
tion would reasonably tend to restrain, coerce, or interfere with
Section 7 rights. Rossmore House, 269 NLRB 1176, 1178 fn.
20 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). Among factors considered are:
(1) the questioner’s identity; (2) the place and method of inter-
rogation; (3) the background of the questioning and the nature
of the information sought; and (4) whether the employee is an
open union supporter. Scheid Electric, 355 NLRB 160 (2010);
see also Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964)
(above factors described). I find that under all the circumstanc-
es, Rodrigues’ questioning of Leonard was coercive and violat-
ed Section 8(a)(1) of the Act.
Rodrigues was Leonard’s direct supervisor. Although their
conversation was brief, casual, and made in the absence of any
direct promises or threats of consequences, it was made on the
worksite at the conclusion of Leonard’s shift. Significantly, the
subject of the inquiry was raised by Rodrigues. Leonard was
not a union officer or open union supporter, and nothing in the
record indicates that Rodrigues had any lawful, noncoercive
reason to ask Leonard whether he “wanted to sign that.” It is
clear from the context of the conversation, that the employees
were actively seeking signatures on the paper or petition. The
facts that the bargaining unit was relatively small and that Ro-
drigues has a family relationship with Robinson also contribute
to the coerciveness of his questions in this context, as it was
reasonable for Leonard to assume Rodrigues knew about the
decertification efforts by Robinson. Rodrigues’ couched or
evasive responses when Leonard tried to deflect from directly
responding to his questions support my conclusion that Ro-
drigues was indeed inquiring about the employees’ effort to
oust the union, and that Rodrigues understood that he should
not be doing so. In this context, Rodrigues’ interrogation im-
pliedly—and surreptitiously—encouraged involvement in the
decertification effort, even though it did not explicitly solicit
that involvement, which contributes to my finding that the na-
ture of the inquiry was coercive. See Hercules Automotive,
Inc., 285 NLRB 944, 949 (1987) (an employer violates 8(a)(1)
by interrogating an employee about his union sympathies in the
context where, “[i]ts purpose was to induce and convince the
employees to sign the petition.”). Moreover, Rodrigues’ in-
quiry also revealed that he had knowledge of the union activity
of other employees, which would reasonably be construed as
implied surveillance of union activity, further contributing to its
coercive nature. See Tres Estrellas de Oro, 329 NLRB 50, 50–
51 (1999) (the Board finds an employer has created an unlawful
impression of surveillance unlawful when a reasonable em-
ployee would assume from the question or statement that his
union activity was under surveillance.)
Based on all of the above, I find that Rodrigues’ questioning

hough Lydon’s testimony corroborates Leonard’s testimony, I find
Leonard’s testimony to be credible and reliable about what Rodrigues
said to him, even in the absence of Lydon’s corroboration.
of Leonard about his union activity was unlawfully coercive. 20
B. Alleged 8(a)(5) Withdrawal of Recognition and Refusal
to Bargain
1. Absence of objective evidence of loss of majority support.21
The foundation for a union’s exclusive bargaining repre-
sentative status is majority support of unit employees. Auciello
Iron Works v. NLRB, 517 U.S. 781, 786 (1996); Anderson
Lumber Co., 360 NLRB 538, 542 (2014), enfd. 801 F.3d 321
(D.C. Cir. 2015). Where, like here, the Union has been certi-
fied by the NLRB as the exclusive bargaining agent of employ-
ees, majority status is presumed to continue.22 An employer
may unilaterally withdraw recognition from an incumbent un-
ion only where the union has actually lost the support of the
majority of the bargaining unit employees. 23 Levitz Furniture,
above, 333 NLRB at 717. An employer can defeat an allega-
tion that its withdrawal of recognition and its postwithdrawal
refusals to bargain are unlawful by showing, as a defense, that
the union had actually lost majority status at the time it with-
drew recognition. Id., accord Scomas of Sausalito, LLC, 362
NLRB No. 174 slip op. at 7 (2015) and Anderson Lumber,
above at 538 and 544. A good-faith but mistaken belief that the
Union has lost majority support is not sufficient under this
standard. Indeed, the Board stated in Levitz Furniture, and has
since reconfirmed, that an employer acts at its own peril when

20 I have considered that the Respondent did not call Rodrigues to
testify about his conversation with Leonard. No explanation was of-
fered why Rodrigues was not called to refute the allegation. Based on
this failure to call Rodrigues, on brief, the General Counsel urges me to
reach an adverse inference to conclude that Rodrigues violated Section
8(a)(1). A judge may make an adverse inference about the failure of a
party to call a witness assumed to be favorably disposed to the party.
International Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F2d 720 (6th Cir. 1988). Here, Rodrigues remains employed
as a supervisor for the Respondent and would be uniquely suited to
refute the testimony about an alleged conversation he had with an em-
ployee. I infer from the failure to call Rodrigues that his testimony
would not have undermined or refuted Leonard’s testimony. I decline
to make the more comprehensive adverse inference to conclude that the
failure to call Rodrigues alone entitles the General Counsel to a favora-
ble disposition on the complaint allegation, as the Respondent was
entitled to leave the government to its proof. Compare Ridgewell’s Inc.,
334 NLRB 37, 42 (2001), enfd. 38 Fed. Appx. 29 (D.C. Cir. 2002), and
Spurlino Materials, LLC, 357 NLRB 1510, 1521 (2011), enfd. 805 F.3d
1131 (D.C. Cir. 2015).
21 Complaint pars. 11, 12, 13, and 21.
22 This presumption is irrebuttable during the first year that a bar-
gaining unit is certified and during the first 3 years of a collectively-
bargained agreement, but becomes rebuttable at other times. Here,
there is no dispute that the withdrawal of recognition occurred after the
certification year had run and before there was agreement on a collec-
tively-bargained contract, and therefore that the Union’s presumption
of majority status was rebuttable. Levitz Furniture, 333 NLRB at 720
fn. 17.
23 In Levitz Furniture, the Board overruled Celanese Corp., 95
NLRB 664, 671–673 (1951), which had affirmed a different standard,
i.e., that an employer may withdraw recognition of a union based on a
reasonable good-faith doubt as clarified by the Supreme Court in Allen-
town Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 367 (1998), to
be a “genuine, reasonable uncertainty” as to majority support. Anderson
Lumber, above.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it relies on evidence to unilaterally withdraw recognition, be-
cause if the Union contests the loss of majority support, the
burden is on the Respondent to prove actual loss of majority
support. Levitz Furniture, above at 725; Anderson Lumber,
above at 538 and 542; and Scomas of Sausalito, above, slip op.
at 1 and 6.
In this case 9 out of the 14 bargaining unit employees signed
the “informative page,” a clear majority of the bargaining unit.
It is evident from the context, as well as Robinson’s affirmation
in the handwritten clarification, that the page was signed by
employees after the conclusion of the certification year, and
therefore, to the extent it represents employee sentiment of
some kind, it does so for a period when the Union’s presump-
tion of majority support was rebuttable.24 Wright testified that
he recognized the signatures on the page to be those of the nine
employees, and there is no evidence on this record that the
signatures are legally invalid. Nevertheless, I find that the rec-
ord lacks sufficient evidence to establish what the employees
meant to assert, affirm, or commit to by signing this informa-
tive page. Notably, the page does not contain a statement for
employees to attest to, such as “we the undersigned employees
want . . . .” Nor is it labeled or entitled “Petition for Decertifica-
tion” or “petition” for anything. Although the signed page
resembles a petition, it does not objectively establish that each
of these nine employees no longer wished to be represented by
the Union. The signed page contained information about how
to seek a Board conducted secret-ballot election to determine
whether the Union retained majority status as well as a state-
ment about how an employer could lawfully withdraw recogni-
tion. Although these nine signatures, even without a clarifica-
tion as to each signatories’ intent, would support the Respond-
ent reasonably determining there was uncertainty about the
continued support for the Union, they do not establish that the
Union had actually lost majority support.
The Board carefully examines the language on a petition, to-
gether with other objective evidence, to determine whether an
employer could reasonably interpret the petition to establish
that a majority of employees no longer support the union.
Whether the language is ambiguous is one factor the Board
considers to determine whether a respondent has met its burden
under Levitz Furniture to show by a preponderance of evidence
that the union had actually lost majority support at the time it
withdrew recognition. Anderson Lumber, above at 538 and
542–544; Wurtland Nursing & Rehabilitation Center, 351
NLRB 817, 818–819 (2007). But, a respondent’s reliance on
ambiguous proof must be based on a reasonable interpretation
of that proof in light of all the objective evidence. Anderson
Lumber, above; Wurtland Nursing, above. Compare Renal
Care of Buffalo, Inc., 347 NLRB 1284, 1284–1286 (2006) (a
petition containing the requisite number of valid signatures that

24 Robinson and two other drivers approached Wright on May 25,
2016, with questions about how to oust the Union. Wright gave Robin-
son the first version of the informative page a few days later, and the
signed version that was first returned to Wright on July 19, 2016. It is
clear from this context that the employees signed the page sometime
between May 25 and July 19. As the Union was certified on May 8,
2015, I conclude that the signatures were collected after the certifica-
tion year had concluded.
unequivocally stated that employees do not support the union
and that they seek a withdrawal of recognition was sufficient
proof to establish loss of majority support), and Highlands
Regional Medical Center, 347 NLRB 1404, 1404–1406 (2006)
(a petition entitled “Showing of Interest for Decertification”
supported by other objective evidence that showed employees
sought an election as opposed to a withdrawal of recognition,
failed to establish that the employees no longer supported the
Union). In Wurtland Nursing, the Board found that a petition
stating that employees “wished for a vote to remove the Union”
was sufficient to establish an actual loss of majority support,
because the Board found that it was a more reasonable interpre-
tation that employees wished to end the union’s status as their
exclusive collective-bargaining representative. In contrast,
there is no statement of employees’ intent—whether clear or
ambiguous—on the signed page initially submitted to the Re-
spondent in this case.
The signed “informative page,” does not make clear on its
face what the signers intended as initially submitted to the Re-
spondent (Jt. Exh. 1(H)), and the updated signed page (Jt. Exh.
1(I)) establishes only Robinson’s intention. The Respondent
did not explain on what basis it could rely on Robinson’s post-
hoc representation regarding the other employees’ intentions.
Neither Robinson nor the other signatories testified, and there is
an absence of evidence regarding what, if anything, Robinson
said to Wright about the collection of signatures. Significantly,
Wright did not testify that he had reason to know what was said
to the employees when he received either the signed page or the
updated signed page from Robinson. In fact, there is no evi-
dence that the other employees were even consulted regarding
Robinson’s addition of the clarifying language to the page they
already had signed. Nor is it established that the employees
selected Robinson to represent them, or authorized him to ei-
ther represent them or to clarify their intent. Thus, in the ab-
sence of objective evidence regarding the meaning of the em-
ployees’ signatures on the informative page that described two
different outcomes, the Respondent could not rely on either the
initial page or the updated page as objective evidence that the
signatories no longer wished to be represented by the Union, as
opposed to evidence of a desire for a Board-conducted election
or of some other desire, purpose, or understanding. Moreover,
Wright asked Robinson to add the clarifying language after
consultation with the Respondent’s legal counsel, which reveals
that the Respondent understood at the time that the intent of the
employees’ signatures was not clear. On this record, Robin-
son’s handwritten changes to the informative page did not
transform an otherwise objectively unclear statement about the
employees’ intent to one with sufficient strength to support a
finding of actual loss of majority support.
Although the evidence does not fully establish what was said
to Wright by the three employees who approached him on May
25, even assuming it would be reasonable for Wright to con-
clude based on that meeting and their signatures on Joint Ex-
hibit 1(H) that the three, including Robinson, rejected the Un-
ion, this would establish only that 3 out of 14 bargaining unit
employees no longer wanted to be represented by the Union,
LIBERTY BAKERY KITCHEN, INC. 11
which is significantly less than a demonstrable loss of majority
support.25
I find, therefore, that the Respondent’s withdrawal of recog-
nition of the Union in July 2016, and its subsequent failure and
refusal to bargain with the Union as the exclusive collective-
bargaining representative of its drivers, violated Section 8(a)(5)
and (1) as alleged.
2. Absence of a Board election. 26
In the alternative, the General Counsel alleges that the Re-
spondent violated Section 8(a)(5) and (1) by refusing to meet
with the Union and by withdrawing recognition “absent the
results of a Board election.” At the hearing, the Respondent
conceded the underlying facts that it withdrew recognition and
refused to meet with the Union unilaterally and in the absence
of a Board election, but maintained that these facts did not con-
stitute a violation of the Act (Tr. 10). In accord with the Re-
spondent’s answer and its arguments both at the hearing and on
brief, I find based on current Board law that this allegation
lacks merit and it is dismissed.27
As discussed above, the Board’s standard established in
Levitz Furniture, does not require that the Respondent file an
RM petition or await a Board election before withdrawing
recognition; rather, as the Board explained in Levitz Furniture,
a respondent may withdraw recognition based on objective
evidence of actual loss of majority support or may file an RM
petition based upon evidence supporting a genuine uncertainty
as to the union’s retention of majority support. (333 NLRB at
717.) Anderson Lumber, above. On brief, the General Counsel
urges the Board to reconsider the Levitz Furniture standard,
arguing that the Levitz Furniture standard has proved to be
unworkable and that the Board should require that a respondent
await the results of a Board election before withdrawing recog-
nition of a certified bargaining unit. The facts of this case may
present facts in accord with the General Counsel’s policy per-
spective, as the evidence supports a finding that the Respondent
had, in good faith, a reasonable uncertainty as to the Union’s
retention of majority support sufficient to support an RM peti-
tion; yet, as I have found above, the objective evidence fails to
prove that the Union had actually lost of majority support on
July 25, 2016. (Id.) Of course, as an administrative law judge, I
have no authority to adopt a new standard; it is left to the
Board, at its discretion, to determine whether to reconsider the
efficacy of its established legal standards on the facts of this or
any other case.

25 The Respondent’s argument that there was bound to be a loss of
support, due to the close election tally in May 2015 and the subsequent
failure of the parties to achieve a collective-bargaining agreement in the
first year is speculative and misplaced. There is no basis to assume in
the absence of reliable, objective evidence that either sup-
port/nonsupport for the Union remained steady after the Union was
certified or that any employees changed their allegiances.
26 Complaint pars.11, 12, 14, and 21.
27 The Respondent also argues that the General Counsel acted out-
side his statutory authority by making these complaint allegations and
by arguing in favor of a change in Board law. Based on my dismissal
of these allegations on other grounds, I find it unnecessary to address
this additional argument.
C. Alleged 8(a)(5), (3), and (1) Wage Increases
1. Wage increases as unilateral changes without notice and
opportunity to bargain.28
Because I have found that the withdrawal of recognition was
unlawful, I further find that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing the drivers’ wages in
November 2016 without providing the Union prior notice and
an opportunity to bargain. An employer must maintain the
terms and conditions of employment of represented employees
until it has bargained with the union about changes and reached
agreement or impasse. U.S. v. Katz, 369 U.S. 736 (1962). It
cannot, therefore, make substantive changes in terms and con-
ditions of employment without providing the Union with prior
notice and an opportunity to bargain. The November 2016
wage increases were admittedly implemented without prior
notice to the Union, because the Respondent mistakenly be-
lieved that the Union had lost majority support and that its bar-
gaining obligation had therefore ceased. The wage increases
were out of the ordinary, not previously planned, and entirely
discretionary, and the Respondent has presented no defense
other than its belief that it was not required to bargain about the
change. As discussed above, however, the Respondent with-
drew recognition at its own peril. Levitz Furniture, 333 NLRB
at 725. The Respondent remained obligated to recognize and
bargain with the Union, and its responsibility to maintain the
status quo in terms and conditions of employment until it had
consulted with the Union as the employees’ exclusive collec-
tive-bargaining representative remained in effect. By disre-
garding these obligations and unilaterally changing wages the
Respondent violated Section 8(a)(5) and (1). Mesker Door,
Inc., 357 NLRB at 598.
2. Wage increases to discourage union support.29
The General Counsel alleges that the Respondent also violat-
ed Section 8(a)(3) and (1) by granting the November 2016
wage increases. I have found above that the wage increases
were unlawful because the Respondent failed to provide the
Union with notice and opportunity to bargain about the chang-
es, and it may not materially affect the remedy to also find that
the wage increase was discriminatory, as alleged. However, I
leave that determination to the Board, and proceed with consid-
ering the 8(a)(3) and (1) allegations. As discussed below, I find
that the Respondent’s reasons for the significant wage increases
were pretextual, and I find, based on the preponderance of the
evidence, that the wage increase violated Section 8(a)(3) and
(1) as it was designed to discourage union activity and/or to
reward the drivers’ perceived rejection of the Union.
The cases the General Counsel points to concern wage in-
creases during a union campaign or during the “critical period”
before a union election while a representation petition is pend-
ing. The Supreme Court has held that the Act “prohibits not
only intrusive threats and promises but also conduct immediate-
ly favorable to employees which is undertaken with the express
purpose of infringing upon their freedom of choice for or
against unionization.” NLRB v. Exchange Parts, 375 U.S. 405,

28 Complaint pars. 15, 17, 18, and 21.
29 Complaint pars.15, 16, and 20.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
409 (1964). Where such conduct is asserted to have violated
Section 8(a)(3), the Board often uses its Wright Line dual mo-
tive analysis to assess the evidence.30 Clock Electric, 338
NLRB 806 (2003). Whether considered as an 8(a)(1) or 8(a)(3)
violation, there is an assessment of the respondent’s motive. 31
In Exchange Parts, the Supreme Court held that “the conferral
of employee benefits while a representation election is pending,
for the purpose of inducing employees to vote against the un-
ion,” interferes with the employees’ protected right to organize.
Ultimately, “[t]he lawfulness of an employer’s conferral of
benefits during a union organizing campaign depends upon its
motive.” Vista Del Sol Healthcare, 363 NLRB No. 135, slip op.
at 1 fn. 2 (2016).
In this case, there was no union election pending and there is
insufficient evidence that the wage increase took place during a
union organizing campaign..32 Still, I am persuaded that the
Exchange Parts rule applies, because the Respondent chose to
withdraw recognition and the Union contested the withdrawal
of recognition. The status of the Union as the exclusive bar-
gaining representative of the Respondent’s drivers was there-
fore put into question. This status puts the relationship of the
employees to their union in the same kind of vulnerable posi-
tion as it would be during the pendency of an election. The
Board has determined that the rule set out in Exchange Parts is

30 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 395, (1983) (approving Wright Line analysis).
Under Wright Line, the General Counsel must show that a Respond-
ent’s employment action was motivated, at least in part, by antiunion
animus. If it shows that the employees engaged in union activity, that
the Respondent knew of union activity or union affiliation, and that the
Respondent harbored antiunion animus, the General Counsel establish-
es an inference that antiunion animus was a motivating factor. The
evidentiary burden shifts to the Respondent to show that it would have
taken the same employment actions even in the absence of the union
activity or affiliation.
31 The General Counsel cites to Hogan Transports, Inc., 363 NLRB
No. 196, slip op. at 4, fn. 9 (2016), in which the Board, without sub-
stantive explanation, found an 8(a)(3) violation applying reasoning of
the Exchange Parts line of cases. In Hogan Transports, the Board
found that the wage increases granted during an organizing campaign
violated Sec. 8(a)(3), as the timing of the increase permitted an infer-
ence of unlawful motive, and the Respondent failed to establish that the
decision to grant wage increases had been made in the absence of the
union’s presence. Accord: Donaldson Bros. Ready Mix, 341 NLRB
958, 961–962 (2004) (unscheduled pay raise during union organizing
campaign violated Sec. 8(a)(3) when Respondent was unable to offer a
credible explanation for the timing of a pay raise). As the remedy for
8(a)(1) and 8(a)(3) discriminatory wage increase violations are the
same, I follow the Board’s lead and consider this violation under both
subsections of the Act.
32 The General Counsel argues that Exchange Parts standard applies
because an organizing campaign was going on contemporaneously
concerning the nonbargaining unit employees (production workers and
cleaners). However, on this record, the General Counsel has not estab-
lished when that organizing campaign began, whether it was going on
in November 2016 when the drivers’ wages were increased, or when
the Respondent learned of it. The record evidence establishes cam-
paign activity in January 2017. Therefore, I do not rely on the organiz-
ing efforts related to the production workers and cleaners in my appli-
cation of the Exchange Parts standard in this case.
also applicable to the granting of benefits during an organiza-
tional campaign but before a representation petition has been
filed. Hampton Inn NY-JFK Airport, 348 NLRB 16, 17 (2006).
Therefore, the absence of the pendency of a representation
petition does not foreclose the application of this doctrine.
Here, by filing the unfair labor practice charges in this case in
order to retain its representative status, the Union has acted
toward these employees in a manner akin to an organizing
campaign—the Union essentially has reasserted an effort to
reaffirm union support. I find it appropriate to apply the Ex-
change Parts standard in this case.
Liberty clearly knew that the representation status of the
drivers was in question when it granted the November 2016
wage increases, as it withdrew recognition and certainly was
aware of the Union’s opposition to the withdrawal of recogni-
tion. The Board infers both improper motive and interference
with Section 7 rights when an employer grants benefits during
an organizing campaign without showing a legitimate business
reason. Vista Del Sol Healthcare, above; ManorCare Health
Service-Easton, 356 NLRB 202, 222 (2010), enfd. 661 F.3d
1139 (D.C. Cir. 2011). Here, as I have discussed above, I find
that the Union’s status was akin to a union engaged in an or-
ganizing campaign. I also find that the Respondent failed to
show a legitimate business reason for the wage increase. The
wage increase cannot be defended as being part of a regular,
typical, or planned wage increase. Wright admitted that he
made the decisions based on complete discretion granted to him
by the Board or Directors, and that he did what he thought was
the right thing to do. He also had never given a similarly large
wage increases before. I find Wright’s explanations for the
timing and the amounts of the wage increase to not be credible.
His testimony about the reasons for the wage increase, includ-
ing his testimony about the October 2016 Board of Directors
meeting was vague and nonspecific at times, which I found
indicative of evasiveness.
By all accounts, the general increase of $3 per hour was a
drastically larger increase than had been typically granted.
Wright’s explanation that the amount was consistent with the
$1 annual minimum wage increases over the past 3 years seems
plausible on its face, but the Respondent did not show a pattern
or practice of granting even its lower wage employees a full $1
increase when the minimum wage increase went up—the typi-
cal increases were 25 to 50 cents. I find it particularly telling
that the confluence of discretionary rules caused the union
steward, Lydon, to receive the least favorable wage increase.
In particular, Wright’s explanation that he established a wage
cap of $14.65, for no reason—a wage cap that negatively af-
fected only the union steward—strikes me as pretextual.
Wright admitted he had never set a wage cap before and, clear-
ly, the rule was malleable according to his discretion, as it did
not apply to employee Tavares. Although it seems reasonable
that Desena, who was already making more than the $14.65
“cap” might be treated differently, Wright’s explanation for
granting Tavares the $3 increase, which brought his wage rate
to $15.60, well above the “cap,” when it had been comparable
to Lydon’s initially, strikes me as a pretextual, post-hoc expla-
nation—there was no explanation for why his duties as a me-
chanic did not cause him to receive a higher rate before No-
LIBERTY BAKERY KITCHEN, INC. 13
vember 2016. Wright offered no explanation for why he set the
$14.65 “cap.” In any case, the Respondent has failed to estab-
lish that its unprecedented, completely discretionary $3 raise
and its completely discretionary $14.65 wage cap, both of
which it chose not follow at its own discretion, were based on
legitimate business reasons.
Although it is true that a privately held company may man-
age its operation and its recordkeeping as it sees fit, I find it
inconsistent and not credible that Wright would have taken the
time to prepare the detailed proposed wage increases described
in General Counsel Exhibit 5 to then have the Board of Direc-
tors provide no substantive feedback regarding the multiple
options. Under the circumstances, I also do not credit that
Wright was unable to recall with any specificity what was said
about these issues at the meeting. There were unfair labor
charges pending and the Union had raised a question regarding
the legitimacy of the withdrawal of recognition—it is more
likely that the owners had substantive discussions with Wright
about General Counsel Exhibit 5 and the effects of potential
wage increases than that they looked at it and simply told him
to do what he thought was the right thing to do. Even if that
was the conclusion, there was no doubt discussion that Wright
was reluctant to share.
I also found Wright’s explanation for the timing of the No-
vember 2016 wage increases to be unconvincing. Again, it was
not consistent with past practice to provide wage increases at
that time. In contrast, and consistent with past practice, he
granted wage increases to the other employees in the first
paycheck of 2017. Thus, the timing of the November 2016
raises reflects that he treated the drivers differently from other
employees, as well as differently from the way the drivers had
been treated in the past. Wright’s partial explanation that he
wanted to do something nice for the drivers before the holidays
to boost morale and that they had not had a raise in years be-
cause of the union negotiations is consistent with my conclu-
sion that the timing of the wage increases was indeed related to
Wright’s belief that the drivers had shown disaffection from the
Union.33 Based on the above, I find that Respondent has not
met its burden to establish a legitimate business reason for
granting the November 2016 wage increases.34 See, e.g., Lati-
no Express, 361 NLRB 1171 (2014), reaffirming 358 NLRB
823 (2012) (Board found no legitimate reason for wage in-
crease where employer failed to establish a competitive need
for the wage increase, failed to present evidence that it was
considering the increase before it knew of the union drive, and
failed to communicate to employees that the increase was unre-
lated to the organizing drive); and Sisters Camelot, 363 NLRB
No. 13 (2015) (Board found no legitimate business justification

33 Moreover, the Respondent articulated a connection between the
wage increases and union representation when, in January 2017, it
emphasized in a campaign poster that the drivers’ wage increases were
not the result of union negotiations, but based on the company’s sole
discretion and desire to do the right thing. By the January 2017 posters,
the Respondent takes credit for rewarding the drivers with the wage
increases in the context of the drivers’ purported rejection of the Union.
34There were no surface bargaining or other bad-faith bargaining al-
legations related to the parties’ pre-withdrawal negotiations alleged in
the complaint, and I make no such findings.
for raises during a union campaign where no past practice of
making similar changes).
I find, in the alternative, that the granting of the November
2016 wage increase violated Section 8(a)(3) and (1) pursuant to
Wright Line. Clearly, there was employer knowledge of union
activity and antiunion activity before the wage increases were
made. Antiunion animus can be inferred from the 8(a)(1) inter-
rogation supported by the pretextual nature of the reasons given
for the wage increase, the unusual amount of the wage increas-
es, the timing of the wage increases, and the inconsistent appli-
cation of the $3 wage increase and the $14.65 per hour “cap.”
Moreover, the Respondent’s intent can be inferred from the
post-implementation statements in the January 2017 posters and
the explanation by Wright at hearing that tend to blame the
Union or the negotiations with the Union for the prior lack of
wage increases. See, e.g., Atlantic Forest Products, 282 NLRB
855 (1987), and Truss-Span Co., 236 NLRB 50 (1978) (an
employer violates 8(a)(1) when it blames a union for lack of
raises). The General Counsel has met its burden to show that
the Respondent was motivated, at least in part, by antiunion
animus when it implemented the November 2016 wage in-
creases. Above, I have found that the Respondent failed to
establish a legitimate business reason for the November 2016
wage increases and that the reasons given were pretextual. I
further conclude that the Respondent has failed to meet its bur-
den under Wright Line to show that it would have implemented
the November 2016 wage increases at the time and in the
amounts that it did, in the absence of the union and antiunion
activity. 35
For the above reasons, I find that the Respondent violated
Section 8(a)(3) and (1) by its implementation of a wage in-
crease in order to discourage union support or to encourage or
reward disaffection from the Union.
CONCLUSIONS OF LAW
1. The Respondent, Liberty Bakery Kitchens, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, The International Brotherhood of Teamsters,
Local 653, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Union has been the exclusive representative for the
purposes of collective bargaining of the employees in the fol-
lowing bargaining unit pursuant to 9(a) of the Act:
All full-time and regular part-time drivers employed by the
Employer at its 125 Liberty Street, Brockton, Massachusetts
facility, but excluding office clerical employees, all other em-
ployees, guards, and supervisors, as defined in the Act.
4. By interrogating an employee about whether he would
sign a paper in support of a decertification effort, the Respond-
ent violated Section 8(a)(1) of the Act.
5. By refusing to bargain with the Union as the exclusive
representative for the purposes of collective bargaining of the

35 Contrary to the implication by both parties in their briefs, an em-
ployer does not have to be shown to be an overall “bad actor” in order
to be found to have engaged in a particular act that violates Section
8(a)(3).
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining unit employees beginning on July 25, 2016, and
thereafter, the Respondent violated Section 8(a)(5) and (1) of
the Act.
6. By withdrawing recognition from the Union on July 25,
2016, absent an actual loss of the Union’s majority status, the
Respondent violated Section 8(a)(5) and (1) of the Act.
7. By unilaterally granting wage increases to bargaining unit
members in November 2016, without giving the Union notice
and opportunity to bargain about the changes, the Respondent
violated Section 8(a)(5) and (1) of the Act.
8. By granting wage increases in November 2016, in order
to discourage union support or to encourage or reward per-
ceived rejection of the Union, the Respondent violated Section
8(a)(3) and (1) of the Act.
9. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent did not violate the Act in any other
manner alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5), (3), and (1)
of the Act, the Respondent shall be ordered to cease and desist
from engaging in such conduct and take certain affirmative
action designed to effectuate the policies of the Act. Most im-
portantly, in order to restore the status quo ante, in light of Re-
spondent’s withdrawal of recognition and refusal to bargain
with the Union, Respondent must recognize and bargain with
the Union for a reasonable period of time as the bargaining
representative of unit employees.
An affirmative bargaining order is a reasonable exercise of
the Board’s broad discretionary remedial authority. Caterair
International, 322 NLRB 64, 64–68 (1996). As the Board stat-
ed in Anderson Lumber, 360 NLRB 538 (2014), “We adhere to
the view that an affirmative bargaining order is ‘the traditional,
appropriate remedy for an 8(a)(5) refusal to bargain with the
lawful collective-bargaining representative of an appropriate
unit of employees.”‘ Id., slip op. at 1, quoting Caterair, above,
322 NLRB at 68. Noting disagreement with the United States
Court of Appeals for the District of Columbia Circuit regarding
a requirement to justify the imposition of a bargaining order in
each case, the Board nevertheless found a bargaining order was
justified in Anderson Lumber pursuant to the District of Co-
lumbia Circuit balancing test as set out in Vincent Industrial
Plastics v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). On
similar facts, the same analysis applies here.
The Respondent must bargain on request with the Union as
the exclusive collective-bargaining representative of employees
in the appropriate bargaining unit and embody any understand-
ing reached in a signed agreement. The Respondent is required
to meet to negotiate with the Union at reasonable times and
reasonable places.
The restoration of the status quo ante requires that the Re-
spondent must, on request from the Union, continue the terms
and conditions of employment until changed through collective
bargaining with the Union. In accord with Board practice and
equitable considerations, the recommended Order will not re-
quire the rescission of the unlawful wage increases, absent a
request from the Union. The Respondent shall post an appro-
priate informational notice, as described in the attached appen-
dix. The General Counsel requests that, in addition, the Re-
spondent be required to read the notices to employees at an all
employee meeting. This remedy is atypical and generally or-
dered in situations when there is a showing that the Board’s
traditional notice remedies are insufficient, such as when a
respondent is a recidivist violator of the Act, when unfair labor
practices are multiple and pervasive, or when circumstances
exist that suggest employees will not understand or will not be
appropriately informed by a notice posting. Here, the viola-
tions are serious, but I do not find circumstances to warrant a
notice reading remedy.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Respondent, Liberty Bakery Kitchen, Inc., Brockton,
Massachusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative for
the following bargaining unit of its employees:
All full-time and regular part-time drivers employed by the
Employer at its 125 Liberty Street, Brockton, Massachusetts
facility, but excluding office clerical employees, all other em-
ployees, guards, and supervisors, as defined in the Act.
(b) Interrogating employees about their union activity or
support, including interrogating employees in a manner that
impliedly solicits their rejection of the Union and/or impliedly
reveals surveillance of the union activity of other employees.
(c) Withdrawing recognition of the Union as the exclusive
bargaining representative of bargaining unit employees in the
absence of objective evidence that the Union has actually lost
the support of a majority of bargaining unit employees.
(d) Granting wage increases to bargaining unit employees or
otherwise changing their terms and conditions of employment
without providing the Union with prior notice and opportunity
to bargain about the changes.
(e) Granting wage increases to employees or otherwise
changing their terms and conditions of employment in order to
discourage union support, or to encourage or reward employee
disaffection from the Union.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the bargaining unit employees
described above.
(b) Upon request of the Union, bargain with the Union as the
exclusive bargaining representative of unit employees about
terms and conditions of employment, and if an agreement is
reached, embody the understanding in a signed agreement.
(c) Upon request of the Union, rescind the unlawful wage in-
LIBERTY BAKERY KITCHEN, INC. 15
crease granted to unit employees on November 19, 2016. This
Order shall not be interpreted to require the rescission of the
wage increases absent the Union’s request.
(d) Within 14 days after service by the Region, post at its fa-
cility in Brockton, Massachusetts, copies of the attached notice
marked “Appendix.”36 Copies of the notice, on forms provided
by the Regional Director for Region One, after being signed by
the Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings. The Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at that facility
at any time since July 25, 2016.
(e) Within 21 days after service by the Region, file with the
Regional Director of Region 1 a sworn certificate of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply with the provi-
sion of this Order.
Dated at Washington, D.C., May 25, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

36 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.”
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT withdraw recognition from and fail and refuse
to bargain with International Brotherhood of Teamsters, Local
653, AFL–CIO (the Union) as the exclusive collective-
bargaining agent of a bargaining unit of our Delivery Drivers.
WE WILL NOT ask you about your union activity or affiliation,
including, WE WILL NOT ask you about your union activity or
affiliation in a way that implies we want you to sign a docu-
ment rejecting the Union or in a way that implies we have been
watching the union activity or affiliation of other employees.
WE WILL NOT change your wages, hours, or other terms and
conditions of employment, including WE WILL NOT grant wage
increases, without first notifying the Union and giving the Un-
ion an opportunity to bargain about the changes.
WE WILL NOT change your wages, hours, or other terms and
conditions of employment, including WE WILL NOT grant wage
increases, in order to discourage union support, or to encourage
or reward employee disaffection from the Union.
WE WILL NOT in any similar way interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Fed-
eral law, described above.
WE WILL recognize and, on request, bargain collectively with
the Union as the exclusive collective-bargaining representative
of our Delivery Drivers concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, only if requested by the Union, rescind the wage
increases granted to our Delivery Drivers in November 2016.
LIBERTY BAKERY KITCHEN, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01-CA-181081 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.