Pennant Foods Co.

National Labor Relations Board - Board Decisions

May 9, 2008

352 N.L.R.B. 451 (N.L.R.B. 2008)

PENNANT FOODS CO.
352 NLRB No. 62
451
Pennant Foods Co., a wholly-owned sbsidiary of CS
Bakery Holdings, Inc., a wholly-owned subsidi-
ary of Chef Solutions Holdings, LLC and Inter-
national Union, United Automobile, Aerospace
& Agricultural Implement Workers of America,
AFL–CIO. Cases 34–CA–11385, 34–CA–11417,
34–CA–11504, and 34–RC–1925
May 12, 2008
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 17, 2007, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Respondent filed exceptions and a supporting brief,1
the General Counsel filed an answering brief, and the
Respondent filed a reply brief. The Charging Party filed
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order3 as modified and set forth in full below.4

1 The General Counsel filed a motion to strike Respondent’s excep-
tions and brief, alleging that the exceptions were improperly single-
spaced and contained argument, contrary to Sec. 114(d) and
102.46(b)(1), respectively, of the Board’s Rules and Regulations.
Thereafter, the Respondent resubmitted its exceptions double-spaced.
With respect to the claim that the exceptions contain argument, the
General Counsel did not identify which of the Respondent’s 77 excep-
tions failed to comport with the Rules. Although our review discloses
that the Respondent’s exceptions were not literally compliant with the
Rules, we find that they are sufficient to satisfy the “substantial compli-
ance” standard. See, e.g., Consolidated Bus Transit, 350 NLRB No.
1064 fn. 2 (2007). We have, however, properly considered only argu-
ments made in the Respondent’s brief.
2 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.
There are no exceptions to the judge’s findings that: (1) Questor
Company was not properly named a Respondent; (2) the Respondent
did not violate Sec. 8(a)(1) by threatening employees with retaliation if
they talked about the Charging Party or engaged in union activity; (3)
the Respondent did not violate Sec. 8(a)(1) or engage in objectionable
conduct by threatening employees with loss of employment if they
selected the Charging Party as their collective-bargaining representa-
tive; and (4) the Respondent did not violate Sec. 8(a)(1) or engage in
objectionable conduct by conveying to employees during a powerpoint
presentation that their selection of the Charging Party would be futile.
Because the judge’s findings, which we adopt, provide ample
grounds for setting aside the election, we find it unnecessary to pass on
the judge’s recommendation to overrule the Charging Party’s Objection
ORDER
The National Labor Relations Board orders that the
Respondent, Pennant Foods Company, a wholly-owned
subsidiary of CS Bakery Holdings, Inc., a wholly-owned
subsidiary of Chef Solutions Holdings, LLC, North Ha-
ven, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about activities
on behalf of, or support for, the International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, AFL–CIO (the Union), or any
other labor organization.
(b) Threatening employees with the loss of benefits or
plant closure if they select the Union or any other labor
organization to represent them in collective bargaining.
(c) Denying reinstatement to employees for supporting
the Union or any other labor organization.
(d) Creating or discriminatorily applying job descrip-
tions and a light-duty policy in order to prevent employ-
ees from returning to work from workers’ compensation
leave because of their union membership and activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

13. Further, in the absence of exceptions, we adopt pro forma the
judge’s recommendation to overrule the Charging Party’s Objection 14.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by threatening employees during a powerpoint presentation with
a loss of benefits if they selected the Union, we do not rely on the
judge’s statement that it was “natural human tendency to extemporize
from prepared scripts in emotional situations.” The judge made this
statement in support of his finding that the testimony of Respondent’s
Operations Manager Fred Macey was not credible. In adopting the
judge’s credibility finding, we rely only on the judge’s other reasons for
discrediting Macey.
3 In adopting the judge’s finding that a bargaining order pursuant to
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is not warranted, we
note that the Charging Party does not request a remand to present re-
quired evidence of its majority status. See Gourmet Foods, 270 NLRB
578, 585 (1984).
4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
We shall modify the judge’s recommended Order and substitute a
new notice to include the Board’s standard remedial language for the
violations found.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD452
(a) Within 14 days from the date of this Order, offer
Lee Mabry full reinstatement to his former job as a ma-
chine operator or to a light duty assignment consistent
with any medical restrictions imposed by a physician, or,
if his former job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make Lee Mabry whole for any loss of earnings
and other benefits resulting from the discriminatory re-
fusal to reinstate him, less any net interim earnings, plus
interest in the manner set forth in the remedy section of
the judge’s decision.
(c) Rescind the machine operator job description and
the worker’s compensation light-duty policy that was
utilized to deny Lee Mabry reinstatement in December
2005.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful denial of rein-
statement, and within 3 days thereafter notify Lee Mabry
in writing that this has been done and that the refusal to
reinstate him will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in North Haven, Connecticut, copies of the
attached notice marked “Appendix”5 in both English and
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ees and former employees employed by the Respondent
at any time since December 21, 2005.
(g) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by the current plant director, pro-
duction manager, or corporate vice president for human
resources, with translation available for Spanish-
speaking employees, and with a Board agent present dur-
ing the reading.
(h) Within 14 days from the date of this Order, supply
the Union the full names and addresses of current unit
employees at the North Haven facility, updated every 6
months, for a period of 2 years from the date the notice is
posted, or until the Board has issued an appropriate certi-
fication following a free and fair election, whichever
comes first.
(i) Provide the Union with notice of, and equal time
and facilities to respond to, any address made by the Re-
spondent to employees on the question of union repre-
sentation, for a period of 2 years from the date the notice
is posted, or until the Board has issued an appropriate
certification following a free and fair election, whichever
comes first.
(j) Upon reasonable advance notice from the Union,
afford the Union and its representatives reasonable ac-
cess to the Respondent’s bulletin boards and all places
where notices to employees are customarily posted at the
North Haven facility for a period of 2 years from the date
the notice is posted, or until the National Labor Relations
Board has issued an appropriate certification following a
free and fair election, whichever comes first.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the election in Case 34–
RC–1925 shall be set aside and this case is remanded to
the Regional Director for Region 34 to conduct a third
election at a time and place to be determined by him.
[Direction of Third Election omitted from publication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
PENNANT FOODS CO. 453
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 coercively interrogate you about your ac-
tivities on behalf of, or support for, the International Un-
ion, United Automobile, Aerospace & Agricultural Im-
plement Workers of America, AFL–CIO (the Union), or
any other labor organization.
WE WILL NOT threaten you with the loss of benefits or
plant closure if you select the Union or any other labor
organization to represent you in collective bargaining.
WE WILL NOT deny you reinstatement for supporting
the Union or any other labor organization.
WE WILL NOT create or discriminatorily apply job de-
scriptions and a light-duty policy in order to prevent you
from returning to work from workers’ compensation
leave because of your union membership and activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s Or-
der, offer Lee Mabry full reinstatement to his former job
as a machine operator or to a light-duty assignment con-
sistent with any medical restrictions imposed by a physi-
cian, or, if his former job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Lee Mabry whole for any loss of earn-
ings and other benefits resulting from our discriminatory
refusal to reinstate him, less any net interim earnings,
plus interest.
WE WILL rescind the machine operator job description
and the worker’s compensation light-duty policy that was
utilized to deny Lee Mabry reinstatement in December
2005.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to reinstate Lee Mabry, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the refusal to reinstate will not be used
against him in any way.
WE WILL, within 14 days after service by the Region,
hold a meeting or meetings, scheduled to ensure the wid-
est possible attendance, at which this notice to employees
is to be read to you by our current plant director, produc-
tion manager, or corporate vice president for human re-
sources, with translation available for Spanish-speaking
employees, and with a Board agent present during the
reading.
WE WILL, within 14 days from the date of the Board’s
Order, supply the Union the full names and addresses of
current unit employees at the North Haven facility, up-
dated every 6 months, for a period of 2 years from the
date the notice is posted, or until the Board has issued an
appropriate certification following a free and fair elec-
tion, whichever comes first.
WE WILL provide the Union notice of, and equal time
and facilities to respond to, any address we make to you
on the question of union representation, for a period of 2
years from the date the notice is posted, or until the
Board has issued an appropriate certification following a
free and fair election, whichever comes first.
WE WILL, upon reasonable advance notice from the
Union, afford the Union and its representatives reason-
able access to our bulletin boards and all places where
notices to employees are customarily posted for a period
of 2 years from the date the notice is posted, or until the
Board has issued an appropriate certification following a
free and fair election, whichever comes first.
PENNANT FOODS COMPANY
Jennifer Dease, Esq. and Margaret Lareau, Esq., for the Gen-
eral Counsel.
Gary Glaser, Esq. and Paul Galligan, Esq. (Seyfarth Shaw,
LLP), for the Respondent-Employer.
Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda Meik-
lejohn & Kelly), for the Charging Party-Petitioner.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Hartford, Connecticut, over 8 days between
October 25, 2006, and January 10, 2007. The Charging
Party/Petitioner, International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America,
AFL–CIO (the Union), filed the initial charges in Cases 34–
CA–11385 and 34–CA–11417 on January 9 and February 3,
2006, respectively, and amended the charge in Case 34–CA–
11417 on March 28 and April 28, 2006. A consolidated com-
plaint based upon these charges issued on April 28, 2006, alleg-
ing that the Respondent, Pennant Foods, a wholly-owned sub-
sidiary of CS Bakery Holdings, Inc, a wholly-owned subsidiary
of Chef Solutions Holdings, LLC,1 a Questor Company, vio-
lated Section 8(a)(1) of the Act through statements made by
several of its supervisors and managers during a preelection
campaign in January 2006.2 The consolidated complaint also
alleged that the Respondent violated Section 8(a)(1) and (3) of

1 As will be discussed, infra, I have amended the caption to delete “a
Questor Company” from the name of Respondent.
2 All dates are in 2006, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD454
the Act by refusing to permit its employee Lee Mabry to return
to work from leave for a work-related injury on December 21,
2005, and again on April 10 because of his activities on behalf
of the Union. In connection with this allegation, the consoli-
dated complaint alleged that the Respondent discriminatorily
relied upon a new light-duty policy and job description that
purportedly were formulated during Mabry’s absence. The
Respondent filed its answer to the consolidated complaint on
May 15, denying that it committed the unfair labor practices
alleged in the complaint and asserting several affirmative de-
fenses. The Respondent also objected to the inclusion of “a
Questor Company” in the Respondent’s name.
By Order dated May 22, the consolidated complaint was fur-
ther consolidated with objections that had been filed by the
Union to the election conducted on January 20 in Case 34–RC–
1925. The petition in that case had been initially filed by the
Union on October 22, 2001, and an election had been con-
ducted on November 29, 2001, pursuant to a Decision and Di-
rection of Election issued by the Board’s Regional Director on
November 14, 2001. The Union had filed objections and unfair
labor practice charges based on conduct preceding that election.
The election conducted on January 20 was a stipulated rerun
election. As will be discussed in more detail later, the Union’s
objections that were set for hearing in the May 22 Report on
Objections included conduct alleged in the consolidated com-
plaint as unfair labor practices during the January preelection
period; conduct during the same period that was not alleged to
be an unfair labor practice; and conduct that had been the sub-
ject of unfair labor practice charges that occurred during the
period between the first election in 2001 and the notice of the
rerun election. Some of these earlier unfair labor practice
charges had been settled and others were litigated and resulted
in the Board Order reported at 347 NLRB 460 (2006). The
Board, in an Order dated August 23, after considering the Re-
spondent’s exceptions to the Objections Report, affirmed the
Regional Director’s determination that a hearing on the Union’s
objections was warranted and remanded Case 34–RC–1925 for
hearing.
On May 17, the Union filed the charge in Case 34–CA–
11504, which was amended on July 31. On August 3, a com-
plaint issued in that case alleging that the Respondent, through
its Operations Manager Fred Macey, committed additional
violations of Section 8(a)(1) of the Act during the preelection
period in January 2006. On the same date, an order further con-
solidating cases issued to consolidate Case 34–CA–11504 with
the previously issued consolidated complaint and objections
report.3 The Respondent filed its answer to the new complaint
on August 17, again objecting to inclusion of “a Questor Com-
pany” in the caption and denying that it committed the unfair
labor practices alleged. The Respondent also asserted the same
affirmative defenses that had been raised in its answer to the
original consolidated complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed

3 The General Counsel amended the consolidated complaints at the
hearing to seek special remedies for the unfair labor practices alleged.
by the General Counsel, the Union, and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures frozen dough
and other bakery products at its facility in North Haven, Con-
necticut, where it annually purchases and receives goods valued
in excess of $50,000 directly from points located outside the
State of Connecticut. The Respondent admits4 and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Respondent’s name
As noted above, the complaints in the instant case alleged
that the Respondent is “a Questor Company.” Counsel for the
General Counsel stated at the hearing that Questor was the only
partner in Chef Solutions LLC, the parent company of Pennant
Foods’ parent, CS Bakery Holdings, Inc.5 She cited a leaflet
distributed to employees during the January preelection cam-
paign which identified Questor as a major shareholder of the
Company and referred to support received from Questor in the
Respondent’s efforts to remain competitive. The Respondent, in
its answers to the complaints, at the hearing, and in its brief has
objected to the General Counsel’s inclusion of Questor in the
definition of the Respondent. According to the Respondent’s
counsel, no evidence has been offered by the General Counsel
or the Charging Party that would justify naming Questor a re-
spondent.
The General Counsel’s position in this case differs from the
position it took in the unfair labor practice proceeding before
another administrative law judge in November 2005. In that
case, the General Counsel stipulated that Questor was merely a
shareholder of the Respondent and amended the complaint to
delete reference to Questor. Pennant Foods Co., 347 NLRB
460, 460 fn. 1 (2006). In the instant case, General Counsel has
offered no evidence that would link Questor, or any supervisor
or agent of that entity, with the unfair labor practices alleged to
have been committed. More specifically, there is no evidence in
this record that would warrant a piercing of the corporate veil to
impose liability for any of the alleged unfair labor practices on
any individual shareholder or limited liability partner. See
White Oak Coal Co., 318 NLRB 732 (1995). Cf. A. J. Me-
chanical, Inc., 345 NLRB 295 (2006), sub nom. reversed in
pertinent part Carpenters Local 2471, 481 F.3d 804 (D.C. Cir.
2007).

4 While admitting the commerce facts and conclusions, the Respon-
dent continued to deny in its answer that a Questor Company was prop-
erly included in the name of the Respondent.
5 The record reveals that CS Bakery Holdings and Chef Solutions are
headquartered in Schaumberg, IL and that management officials from
that corporate headquarters participated in the preelection campaign in
January.
PENNANT FOODS CO. 455
I find, based on the limited evidence in the record, that
“Questor,” at most, was a shareholder or owner of the Respon-
dent’s parent company at the time the unfair labor practices
were allegedly committed.6 As such, it was not properly named
a Respondent because there is no evidence that Questor and the
Respondent failed to maintain separate identities and that ad-
herence to the corporate structure in this case would “sanction a
fraud, promote injustice, or lead to evasion of the Respondent’s
legal obligations.” White Oak Coal Co., supra. Nor is there any
evidence that would establish a single employer, alter ego, or
joint employer relationship between Questor and the Respon-
dent. Accordingly, I have amended the caption to delete
Questor from the definition of the Respondent.
2. History preceding the rerun election
The Respondent manufactures frozen rolls and other bakery
goods at the North Haven facility involved in this proceeding.
Subway Sandwich Shops is the Respondent’s main customer.
The Union has been engaged in a determined effort to represent
a unit of the Respondent’s production and maintenance em-
ployees in North Haven since September 2001. At the time of
the hearing in this case, there were approximately 143 employ-
ees in the unit. The alleged discriminatee, Lee Mabry, has been
involved in the Union’s organizing campaign from the begin-
ning. As part of its effort to organize the Respondent’s employ-
ees, the Union embarked on a “corporate campaign” aimed at
bringing public pressure on the Respondent to recognize the
Union. This campaign included visits by bargaining unit mem-
bers and union representatives to the corporate offices of the
Respondent’s parent and shareholders, such as Questor. In ad-
dition, the Union enlisted politicians to hold hearings to “inves-
tigate” the Respondent’s treatment of its employees. There is
no dispute that Mabry was prominent in this campaign and, as
the parties stipulated, was the “face” of the Union in the media.
As noted above, the Union filed a petition seeking to repre-
sent the Respondent’s employees on October 22, 2001. An
election was held on November 29, 2001, which the Union lost
by a vote of 99–63. The Union filed timely objections to the
election as well as a number of unfair labor practice charges.
The charges were resolved through an informal settlement
agreement containing a nonadmissions clause, approved by the
Board’s Regional Director over the Union’s objections, on
December 12, 2003. It appears that the Union’s election objec-
tions were resolved by a stipulation for a new election, which
had been held in abeyance until the Union filed a request to
proceed in late December 2005. Within a year of the approval
of the settlement agreement, the Union filed additional charges
which were resolved by execution of a formal settlement stipu-
lation on February 18, 2005, providing for entry of a Board
Order with enforcement by the court of appeals. The settlement
stipulation also contained a nonadmissions clause. The Union
again objected to the settlement, contending that the remedies

6 Evidence offered at the hearing indicates that Chef Solutions may
have sold the assets of Pennant Foods to another entity identified as
Fresh Start Bakeries in October 2006, after the unfair labor practices
alleged here. Any question of liability on the part of any current owner
to remedy the violations found here can be resolved at the compliance
stage of these proceedings.
provided by the agreement were insufficient to dissipate the
effects of the Respondent’s alleged unfair labor practices. The
Board’s decision approving the formal settlement over the Un-
ion’s objections issued on January 10, 2006, shortly before the
election at issue in this proceeding.7
At the hearing, I rejected the General Counsel’s proffer of
the informal settlement agreement, the formal settlement stipu-
lation, and the order and judgment enforcing the formal settle-
ment on the grounds that the settlement of unfair labor practice
charges where the Respondent did not admit it had violated the
Act was not relevant to determining whether the Respondent
violated the Act as alleged in the instant complaints, or whether
the special remedies sought by the General Counsel in this case
were warranted, or as proof of objectionable conduct. I adhere
to that ruling. See Sheet Metal Workers Local 28 (Astoria Me-
chanical Corp.), 323 NLRB 204 (1997). However, I have taken
administrative notice of the documents for the purpose of estab-
lishing the procedural history leading up to the instant proceed-
ing. As I advised the parties when making my ruling at the
hearing, if the General Counsel or the Charging Party wished to
rely on the conduct alleged in the earlier cases to support the
positions taken here, they would have to offer proof of the con-
duct and not simply rely on the existence of the settlement
agreements.8
While the formal settlement agreement was pending before
the Board, the Union filed additional unfair labor practice
charges against the Respondent which led to issuance of a con-
solidated complaint on August 31, 2005. That complaint went
to trial before Administrative Law Judge Joel Biblowitz in No-
vember 2005. Judge Biblowitz issued his decision on January
19, the day before the rerun election, finding that the Respon-
dent violated Section 8(a)(1) of the Act on May 24 and 25,
2005, by threatening unfair labor practice strikers with perma-
nent replacement if they refused to abandon a strike.9 Judge
Biblowitz also found that the Respondent violated Section
8(a)(1) and (3) of the Act by issuing written warnings to em-
ployee Jack Toporovsky on May 9 and 12, 2005; by removing a
laptop computer from the office where Toporovsky worked; by
removing telephones from the maintenance department on May
10, 2005; and by failing and refusing to reinstate Toporovsky
and fellow maintenance employee Gregory Borukhovich to
their prestrike positions since June 7, 2005. On June 27, 2006,
the Board adopted Judge Biblowitz’ decision in its entirety.
Pennant Foods Co., 347 NLRB 460.
The Respondent’s campaign to convince its employees to
vote against union representation at the January 20 rerun elec-
tion generated the current round of charges. The Union again
lost the election, by a vote of 84–54, and filed timely objec-
tions. The Union also sought, as a remedy for the charges it

7 The court of appeals entered its judgment enforcing the Board’s
Order on February 8.
8 The Charging Party did offer evidence with respect to two of the
settled unfair labor practices as part of its objections case.
9 Judge Biblowitz found that a strike engaged in from May 24 to
June 6, 2005, by several of the Respondent’s maintenance employees to
protest discriminatory warnings issued to one of them was an unfair
labor practice strike.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD456
filed, a Gissel bargaining order.10 The General Counsel, while
asking for special remedies in light of the history of the case,
does not seek such a remedy. At the hearing, I ruled that the
Charging Party was precluded from seeking a bargaining order
because of the General Counsel’s conscious decision to refrain
from seeking such a remedy. See ATS Acquisition Corp., 321
NLRB 712 fn. 3 (1996).
B. The 8(a)(1) Allegations
1. Case 34–CA–11504
The sole allegation in this complaint is that the Respondent,
through Fred Macey, its operations manager at the time,11 vio-
lated Section 8(a)(1) of the Act in December 2005 or January
2006 by threatening employees with retaliation if they talked
about the Union and engaged in union activity, and prohibited
employees from talking about the Union and engaging in union
activities. This allegation is based upon an incident involving
Macey and former employee Gustavo Caporal, who was the
General Counsel’s sole witness in support of this allegation.
Caporal was terminated by the Respondent on May 4 for alleg-
edly making false entries in company records regarding the
temperature of frozen dough being loaded onto trucks for ship-
ment. Caporal, in his testimony, disputed the Respondent’s
claims against him, suggesting that he may have been set up to
be terminated. However, the allegations in this charge relating
to his discharge were dismissed by the Regional Office and not
appealed by the Union.
As to the specific allegation at issue, Caporal testified that, a
few weeks before the January 20 election, after he and other
employees began campaigning for the Union, Macey ap-
proached him as he was walking through the production area on
his way back to the warehouse after a break. Macey put his arm
around Caporal and said, “Gustavo, you know me,” to which
Caporal responded affirmatively. Macey then said he did not
want to get into an argument with Caporal, he was just doing
his job, but that he just wanted to tell Caporal that he didn’t
want Caporal talking with the people in production about the
Union.12 Macey told Caporal that he could do this on his breaks
or during lunch. Caporal said, “[O]kay,” and the conversation
ended. According to Caporal, Macy did not speak to him again
about this. Caporal testified that this conversation occurred in
English. While acknowledging that he sometimes has difficulty
communicating in English, he understands the language fairly
well.13 On cross-examination, Caporal admitted that he did not
mention this conversation to anyone for almost 6 months, and
reported it only after he was fired.
Macey did not deny having a conversation with Caporal be-
fore the election about his being on the production floor. Macey
testified that he spoke to Caporal in response to complaints he

10 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
11 Macey became plant director in July 2006 after Price left the Com-
pany.
12 The Tr. 190, LL. 12–14, erroneously shows the word “position” in
place of “production.” Based on the General Counsel’s unopposed
motion, I shall correct the transcript accordingly.
13 I observed that Caporal generally was able to testify in English al-
though a few times he did not understand the questions he was asked
and needed to use the services of the interpreter.
had received from the mixer operator and a supervisor that
Caporal was interfering with production. According to Macey,
he merely took Caporal aside and told him that he works in the
shipping department and should remain there, that there was no
reason for him to be talking to employees on the production
floor. Macey testified that he told Caporal that he could go to
the cafeteria and talk to employees on his breaks. Macey denied
mentioning the Union in this conversation, asserting that the
complaints he received did not indicate what Caporal was talk-
ing about to the employees, only that he was disturbing them
while they were working.
The General Counsel argues that Macey’s statements to
Caporal were an implied threat of retaliation for talking about
the Union and amounted to the promulgation of a discrimina-
tory “no-talking” rule. See, e.g., Flamingo Hotel-Laughlin, 324
NLRB 72, 110 (1997), enf. denied in part on other grounds 148
F.3d 1166 (D.C. Cir. 1998). This argument depends entirely on
the credibility of Caporal. Although I do not believe Caporal
fabricated his testimony, I am reluctant to credit his testimony
regarding this conversation. As noted previously, Caporal is not
fluent in English and there is a real possibility that he misun-
derstood Macey’s admonition. I also note the absence of evi-
dence that other employees were prohibited from “talking”
about the Union, and the absence of evidence that the Respon-
dent customarily allowed employees from other departments to
come onto the production floor and engage production employ-
ees in nonwork-related conversation while they were working.
Caporal’s testimony without any supporting evidence is thus
not sufficiently reliable to support the allegation in the com-
plaint. Moreover, although I did not find Macey a credible wit-
ness on other matters, his testimony regarding the conversation
with Caporal had the ring of truth. I find it more probable than
not that, as Macey testified, he simply reminded Caporal that he
needed to remain in his work area unless he was on break and
that he should not disturb other employees who were working.
Based on the above, I have determined that the General
Counsel has failed to meet his burden of proof on this allega-
tion. Because this is the only unfair labor practice allegation in
Case 34–CA–11504, I shall recommend that the complaint in
that case be dismissed in its entirety.
2. Allegations involving Supervisor Rodriguez
The consolidated complaint in Case 34–CA–11385 and 34–
CA–11417 alleges, at paragraphs 7 and 8, that the Respondent,
through its admitted supervisor, Jennifer Rodriguez, violated
Section 8(a)(1) of the Act by interrogating employees and
threatening them with loss of employment and closure of the
facility if they selected the Union to represent them.14 Respon-
dent has denied these allegations. The General Counsel’s sole
witness in support of these allegations was former employee
Ricardo Rodriguez, who testified to two encounters with Su-
pervisor Rodriguez in the weeks preceding the January elec-
tion.15
Ricardo Rodriguez was employed by the Respondent from
October 31, 2005, until he voluntarily quit in April or May, a

14 Counsel for the General Counsel, in her posthearing brief, with-
drew the allegation that Respondent threatened loss of employment.
15 Ricardo and Jennifer Rodriguez are not related.
PENNANT FOODS CO. 457
few months after the election. He was a quality control inspec-
tor on the second shift. Jennifer Rodriguez was his immediate
supervisor. Ricardo Rodriguez testified that Supervisor Rodri-
guez called him into her office on January 10 at about 4 or 5
p.m. No one else was present.16 According to Ricardo Rodri-
guez, after initially talking about work-related issues, Supervi-
sor Rodriguez asked him what he knew about the Union. Ri-
cardo Rodriguez told her that some people had spoken to him
about it and that he had a relative who was in a union. The su-
pervisor then asked if he knew that there was a union trying to
get into the factory. She mentioned that there was an election
coming up and told Ricardo Rodriguez that she wanted him to
vote “no.”
Ricardo Rodriguez testified that Supervisor Rodriguez also
told him, in this conversation, that if the Union got into the
Company, the employees could lose their medical benefits and
that the Company’s “open-door policy” could end. She told him
that the Union would decide what the medical benefits would
be. Ricardo Rodriguez also recalled that his supervisor told him
the Union could end up causing the factory to close and she
gave as an example a company in nearby Meriden, Connecticut,
that made car parts and was closing. Ricardo Rodriguez asked
Supervisor Rodriguez if it was the same union that was trying
to get into the Respondent’s facility and she said it was. Ac-
cording to Ricardo Rodriguez, Supervisor Rodriguez did not
explain how the Union could cause the factory to close. Ricardo
Rodriguez told his supervisor that he had worked at the factory
that was closing for about a week and left because he heard
rumors that it was closing. He told her he did not know why the
factory was closing. On cross-examination, Ricardo Rodriguez
conceded that Jennifer Rodriguez did not say directly that the
Respondent was going to close if the Union came into the fac-
tory. He also recalled that, at the end of the meeting, Jennifer
Rodriguez asked him to think about it and said that she would
like him to vote “no.”
Ricardo Rodriguez testified to one other conversation with
Jennifer Rodriguez that occurred about a week before the elec-
tion. This conversation, also in Spanish, took place in her office
with no one else present. Again, after initially discussing a
work issue, she asked him how things were going on the floor.
When Ricardo Rodriguez asked her what she meant, Jennifer
Rodriguez replied, “[Y]ou know, the Union.” Ricardo Rodri-
guez told her that things were good, that some people had
talked to him about it saying good things about the Union while
others said bad things about it. Ricardo Rodriguez told her he
had made up his mind because he did not want to lose benefits.
Jennifer Rodriguez told him, “[W]hen you vote, make sure you
put a big X where it says no.”
Jennifer Rodriguez testified for the Respondent. She has
been employed by the Respondent for more than 10 years and
had been the supervisor of sanitation and quality control for
about 3-1/2 years at the time of the hearing. She testified that
she “did not, at any time talk to Ricardo Rodriguez about the
Union.” She repeated this answer, as if by rote, in response to

16 This conversation was in Spanish. Although Ricardo Rodriguez
speaks and understands English well, he testified to this conversation in
Spanish with the court interpreter translating into English.
each leading question from counsel as to whether she made the
statements attributed to her by Ricardo Rodriguez. According
to Jennifer Rodriguez, she only spoke to Ricardo Rodriguez
about production. Jennifer Rodriguez acknowledged that she
speaks Spanish when talking to the Respondent’s Spanish-
speaking employees.17 Jennifer Rodriguez also testified that, in
early January, after learning of the rerun election, she attended
a meeting with Price and the Respondent’s lawyers at which the
supervisors and managers were instructed about how to conduct
themselves lawfully during the campaign. She recalled being
told not to have meetings with employees about the Union. The
supervisors were also told that they could answer employees’
questions if they knew the answer. Otherwise, the supervisor
was to refer the employee to human resources.
As between these two witnesses, I found Ricardo Rodriguez
to be the more credible witness. Jennifer Rodriguez’ rote deni-
als were not persuasive. In addition, her testimony on another
matter, the preparation and distribution of the disputed job de-
scriptions, was deliberately misleading. For example, at first
she testified that Maria Giaimo gave her the new job descrip-
tions. Later, when the Respondent’s counsel pointed out that
Giaimo did not work there when the job descriptions were sup-
posed to have been created, she changed her testimony. At
another point in her testimony, Jennifer Rodriguez testified that
she didn’t remember if Operations Manager Macey read from
his power point presentation line by line, yet she was certain he
didn’t deviate from it. I also noted her evasiveness when an-
swering questions on cross-examination. In total, it appeared
that she formulated her answers to advance whatever position
the Respondent was taking on an issue. In contrast, Ricardo
Rodriguez appeared to be candid with his answers, attempting
as best he could to recall events and conversations. Although
the Respondent attempted to show that he was biased against
the Respondent because he had complained about Jennifer Rod-
riguez’ supervision in his resignation letter, I did not detect any
bias in his testimony. Moreover, contrary to the Respondent’s
argument, Ricardo Rodriguez did refer to the unfair labor prac-
tice allegation in his resignation letter, when he complained that
the Respondent had violated his rights in the election by telling
him to vote “no.” Although he did not name his supervisor as
guilty of this affront, it is clear from his testimony that, on two
occasions, she told him to vote “no.”
Having credited Ricardo Rodriguez, I find, based on his tes-
timony, that the Respondent violated Section 8(a)(1) when his
supervisor called him into her office on two occasions and in-
terrogated him about the Union. Ricardo Rodriguez was not an
open and notorious union supporter when Jennifer Rodriguez
first asked him, on January 10, what he knew about the Union.
Nor had he exhibited any prounion sympathies when she called
him in again, a week before the election, and asked him how
things were going with the Union on the shop floor. Jennifer
Rodriguez’ questioning of her subordinate was not part of an
isolated and spontaneous conversation but appears to have been
deliberately calculated to ascertain Ricardo Rodriguez’ union
sympathies. The questioning was all the more coercive because

17 Unlike Ricardo Rodriguez, Jennifer Rodriguez testified almost en-
tirely through the interpreter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD458
it was coupled with an admonition to vote “no” and occurred in
the context of an implied threat of plant closure if the Union
prevailed in the upcoming election. Accordingly, under the
totality of circumstances, including the Respondent’s history of
unfair labor practices, I conclude that Jennifer Rodriguez’ inter-
rogation of Ricardo Rodriguez violated the Act as alleged in the
complaint. Medcare Associates, 330 NLRB 935, 939–940
(2000); and Sunnyvale Medical Center, 277 NLRB 1217
(1985). Cf. Heartshare Human Services of New York, 339
NLRB 842, 843–844 (2003).
As intimated above, I have also found, based on Ricardo
Rodriguez’ credited testimony, that Respondent unlawfully
threatened employees with plant closure when Jennifer Rodri-
guez told him, without explanation, that the Union could end up
causing the Respondent to close the facility.18 Although her
statement did not directly threaten that the Respondent would
close the plant if the Union won the election, she clearly im-
plied that would be the result. This prediction was not based on
any objective facts but rather appeared to be based solely on the
Union’s history at another nearby facility. Without any further
explanation, an employee could reasonably believe that the
Respondent would rather close the plant than deal with this
Union. The Board and the courts have historically found such
statements unlawful NLRB v. Gissel Packing Co., 395 U.S. 575
(1969); Homer D. Bronson Co., 349 NLRB 512, 513–514
(2007); and Daikichi Sushi, 335 NLRB 622, 623–624 (2001).
Accordingly, I find that the Respondent has violated the Act as
alleged in the complaint.
3. Alleged threat by Price
The consolidated complaint in Cases 34–CA–11385 and 34–
CA–11417 alleges, at paragraph 9, that the Respondent,
through Plant Director Price, threatened employees with loss of
employment if they selected the Union as their representative.
The evidence offered at the hearing indicates that this threat is
alleged to have occurred during an employee communication
meeting Price held with employees in early January, shortly
after the rerun election was announced. The main witness for
the General Counsel in support of this allegation is Gregory
Borukhovich, one of the unfair labor practice strikers found to
have been unlawfully denied reinstatement in the earlier unfair
labor practice proceeding before Judge Biblowitz.
Borukhovich testified that he attended a meeting in the
lunchroom with about 20–30 other employees, in early January,
at which Price informed employees of a wage increase and
improvements in benefits.19 Price also talked about the Respon-
dent’s accomplishments in the past year. During the question
and answer portion of the meeting, after Price mentioned a
letter he sent to the employees about the recent holidays,
Borukhovich spoke up, saying, “[W]hat holiday, I had one day
off.” Price then mentioned the upcoming election and told the
employees that he wanted to work with them and that, if they
wanted to work with him, to vote “no.” At that point, Boruk-

18 The complaint does not allege that Jennifer Rodriguez’ statement
that employees could lose their medical benefits was unlawful.
19 The General Counsel does not allege that the wage and benefit in-
creases announced at this meeting were unlawful. It appears that they
were part of an established practice at the facility.
hovich asked, “[I]f I vote ‘yes’, will you fire me?” According to
Borukhovich, Price did not answer this question. Instead, he
became annoyed and told Borukhovich, “[T]his is my meeting.
I am paying for this meeting.” Borukhovich admits he also got
angry but claimed he could not recall what he said. He ac-
knowledged that he and Price argued back and forth to the point
he stopped paying attention to what was said. The only thing he
remembered clearly was the above-quoted question he asked
Price, which initiated the argument, and the fact that Price did
not answer the question. On cross-examination, Borukhovich
denied that Price said the election would be by secret ballot.
However, he acknowledged that Price did say at one point that
“no one will know how you voted.”
The General Counsel called two other witnesses to “corrobo-
rate” Borukhovich’s testimony. Jack Toporovsky, the other
unfair labor practice striker who was found to have been unlaw-
fully denied reinstatement in the prior case, testified that he was
at this meeting and recalled there being an exchange between
Borukhovich and Price, but he did not recall what was said. In
his pretrial affidavit, Toporovsky had stated that he did not
recall being present at any meeting at which Borukhovich
spoke up about whether he would be fired if he voted for the
Union. Luther Harris, who had been employed by the Respon-
dent for 17 years when he testified at the hearing, recalled en-
tering the meeting when it was already in progress. He did re-
call Borukhovich speaking up at the meeting after Price men-
tioned the upcoming election. When Price told the employees
they had a right to vote for the Union but asked them to vote
“no,” Borukhovich asked, “[I]f I vote yes, will you fire me?”
Price did not answer. According to Harris, Borukhovich then
said, “I’m going to vote for the Union, you fire me.” Price still
did not answer this question. Instead, Price said, “[T]his is my
meeting and I’m not going to talk about the Union at this time.”
Price then changed the subject and went on with the meeting.20
Price testified for the Respondent regarding this allegation.
Price recalled holding an employee communication meeting in
January at which Borukhovich got up and started to make a
statement during the question and answer portion of the meet-
ing. Price admitted cutting him off by saying, “[T]his is my
meeting. If you have a question, ask it, but don’t make state-
ments.” According to Price, Borukhovich started to make his
statement again and Price again cut him off. Finally, Boruk-
hovich sat down and the meeting continued. Despite being able
to recall the interruption and his response, Price surprisingly
could not recall what Borukhovich said before he cut him off.
Despite this lack of memory, Price was able to deny that
Borukhovich said, “[I]f I vote yes, you fire me,” or words to
that effect. The Respondent called no other witnesses who were
at this meeting. Jennifer Rodriguez, who was identified by
other witnesses as being at this meeting, was not asked any
questions about it.
There is very little dispute regarding the facts of this allega-
tion. All witnesses who testified recalled Borukhovich speaking
up at the meeting and Price cutting him off by saying, “[T]his is
my meeting,” or words to that effect. Although Price claimed
he could not recall what Borukhovich said, I find his lack of

20 The Respondent’s counsel chose not to cross-examine Harris.
PENNANT FOODS CO. 459
recall not credible. Borukhovich’s testimony that he asked Price
if he would be fired for voting yes is corroborated by Harris, a
long-term employee of the Respondent whom I found to be
very credible. There is no dispute that, whatever Borukhovich
said, Price did not respond to it directly. The issue remains,
however, whether Price’s silence, in the face of such a state-
ment, amounts to ratification or adoption of the statement and a
threat of job loss for voting for the Union.
The General Counsel and the Charging Party argue that
Price’s failure to expressly disavow the suggestion in Boruk-
hovich’s question that a vote in favor of the Union would lead
to his termination amounts to agreement with the statement.
According to the General Counsel, Price’s silence reinforced
the message that, if employees wanted to work with him to
improve the Company, they would vote “no.” The only case
cited by the General Counsel in support of this argument is
Homer D. Bronson Co., supra, where the Board relied on an
exchange between an employee and the president of the com-
pany to establish that the employer’s statements at a meeting
threatened plant closure. In that case, however, the employer’s
president did not remain silent when the employee asked if he
was saying that the company would move or close if the Union
came in. There, the president responded, “[I]t could happen.”
This is a far cry from the situation here. As admitted by Boruk-
hovich, not only did Price not respond to the question, but he
reminded the employees that “no one will know how you
voted.” In addition, Price interrupted Borukhovich, cutting off
his question, by stating that it was Price’s meeting, attempting
to get the meeting back on track. Under all the circumstances, I
can not find that Price’s silence amounted to an unlawful threat,
express or implied, that a vote for the Union would result in
loss of employment. Accordingly, I shall recommend that this
allegation be dismissed.
4. Alleged threats during the Respondent’s preelection
campaign meetings
There is no dispute that, as part of its campaign to convince
the employees to vote against the Union, the Respondent held
four series of meetings in the weeks before the election, each
one on a different topic conducted by a different member of
management. All of the meetings followed the same format
with the designated speaker using a power point presentation
prepared with assistance of counsel. At each meeting, there was
an interpreter to translate the statements made by the manage-
ment representative from English to Spanish. The meetings
were held in a conference room with groups of 15–20 employ-
ees. The meetings lasted from 25–40 minutes. According to
Brian Glancey, the Respondent’s senior director of human re-
sources at the time, the speakers were instructed to read from
the power point verbatim, not to deviate from the scripted pres-
entation, and not to allow for questions.21
The consolidated complaint in Cases 34–CA–11385 and 34–
CA–11417 alleges that statements made by Glancey at his se-
ries of meetings unlawfully conveyed to employees that their
selection of the Union would be futile. The consolidated com-

21 Glancey left the Respondent’s employ in September. He was not
an employee when he testified at the hearing.
plaint further alleges that Macey, the Respondent’s operations
manager at the time, threatened employees with loss of benefits
at his series of meetings. Although Price and Tom Maruri, the
Respondent’s vice president of operations, conducted the other
two series of meetings, there are no allegations in the complaint
regarding anything said at these meetings.
a. Macey’s alleged threat
Macey conducted the first series of meetings, sometime dur-
ing the second week of January. The General Counsel relies on
the testimony of three witnesses to establish the violation, i.e.,
Ricardo Rodriguez, Toporovsky, and mixer operator Dave
Armstead, a 21-year employee of the Respondent. All three
claim that, despite whatever instructions he had, Macey devi-
ated from the power point presentation and spoke extempora-
neously during the meeting. Ricardo Rodriguez and
Toporovsky attended the same meeting, at approximately 4 or 5
p.m. on January 11. Both recalled that Supervisor Jennifer Rod-
riguez was at their meeting. Toporovsky recalled the meeting
lasting about 40 to 45 minutes. Although Rodriguez testified
that the meeting was long and tiring, he did not give a length of
time it lasted. Armstead, who works on first shift, attended a
different meeting. He recalled that the meeting he attended
lasted about an hour.
Ricardo Rodriguez testified that, during the meeting he at-
tended, Macey said, “[I]f you don’t want to lose your medical
benefits, you will vote ‘no’” and “[Y]our 401 (k) will be gone,”
and “[I]f you don’t want to lose your 401(k), you will vote
‘no’.” According to Rodriguez, Macey did not explain why
their benefits would be “gone.” Rodriguez conceded that
Macey said a lot of other things in the meeting that he could not
remember. According to Ricardo Rodriguez, the most signifi-
cant thing he remembered from the meeting was Macey’s use
of the command, “you will vote no” after almost every state-
ment he made. On cross-examination, Rodriguez testified that
Macey described the Respondent’s current health insurance
benefits as good and asked the employees why they would want
to lose that. Macey went on to say that, with a Union, that
might happen and the employees would have to take whatever
the Union wanted. Also on cross-examination, Ricardo Rodri-
guez was asked to review a document purporting to be the
power point presentation used by Macey. Although Rodriguez
testified that he did not recall seeing all of the pages in the
document, he acknowledged that at least part of the proffered
exhibit was shown during the meeting.
Toporovsky’s recollection of the meeting differed slightly
from that of Ricardo Rodriguez. He testified that the theme of
Macey’s meeting appeared to be to tell people to vote “no” by
pointing out the Union’s weak spots. He recalled Macey talking
about union-represented employees at General Motors losing
their jobs and about other unionized employers in the area shut-
ting down. He then testified that Macey said that the Respon-
dent’s employees could lose their health insurance and 401(k)
because the Union would come in with their own health and
pension benefits. He did not recall Macey saying that these
benefits would be subject to bargaining. According to
Toporovsky, that was said at another meeting. Like Ricardo
Rodriguez, Toporovsky distinctly remembered Macey repeat-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD460
edly saying,“vote no.” Also, as with Ricardo Rodriguez,
Toporovsky did not recognize the document proffered by the
Respondent as the complete power point presentation Macey
used. He did recall that Macey’s statement about losing medical
and 401(k) benefits was not on any power point slide but rather
was said when Macey elaborated on a statement in one of the
slides.
Armstead testified that Macey told the employees at his
meeting that their Blue Cross/Blue Shield insurance would be
gone if the Union came in because the Union would want the
employees to see a union doctor. Armstead recalled that Macey
said that everything would be subject to bargaining, that every-
thing would be wiped clean, that the employees would have to
start from the beginning, and they could lose. He recalled fur-
ther that Macey said the employees either could or would lose
their 401(k) benefits, although he was not certain about this.
Armstead also testified that Macey told employees that with a
union, there would be shop stewards and they would no longer
be able to go directly to him with a problem. If an employee
had a problem, they would have to talk to the steward and, if
the shop steward didn’t like you, he might not bring the prob-
lem to Macey. As did Ricardo Rodriguez and Toporovsky,
Armstead clearly recalled Macey repeatedly telling the employ-
ees to “vote no.” According to Armstead, he spoke up at one
point, saying, “[W]e could also vote ‘[Y]es’ to which Macey
responded that it was his meeting, don’t disrespect him. When
Armstead tried again to point out that employees could vote
“yes,” Macey told him if he disrupted the meeting again, he
would be asked to leave. On cross-examination, Armstead con-
ceded that he could not recall everything that Macey said which
deviated from what was on the power point slides and admitted
that he did not pay close attention to what Macey was saying
because he had already made up his mind. However, he re-
affirmed his testimony on direct, stating that he had a clear
recollection of the statements Macey made regarding the loss of
benefits.
Macey, when called as a witness by the Respondent, specifi-
cally denied making the statements attributed to him by the
General Counsel’s witnesses.22 He testified that he merely read
the slides in the power point and made no additional comments.
Although some of the power point slides had words and
phrases, such as “vote no,” printed in bold type, Macey denied
emphasizing these statements when he read the slides. He also
claimed, somewhat disingenuously, that the purpose of his
presentation was not to urge the employees to vote no, despite
the appearance of this admonition in the slides. According to
Macey, he began the meeting by telling the employees he was
there to provide them with information and that he would not
be taking questions. He told the employees that, if they had
questions, they could ask them at another time. He did corrobo-
rate Armstead’s testimony regarding Armstead’s interruption
and his response and recalled that Borukhovich had also inter-
rupted another meeting by making the same statement he made
during Price’s employee communication meeting about a week

22 These denials were elicited by leading questions from the Respon-
dent’s counsel.
earlier. According to Macey, each of his meetings lasted 30
minutes.
The only witness the Respondent called to “corroborate”
Macey’s denial was Jennifer Rodriguez.23 Jennifer Rodriguez
denied that Ricardo Rodriguez and Toporovsky were at the
meeting she attended. She specifically denied that Macey made
the alleged threats attributed to him by these witnesses and
denied further that he deviated from the scripted power point
presentation. However, she admitted that she could not recall
whether he read the script “line-by-line.” Jennifer Rodriguez
also exhibited poor recall regarding other details of the meet-
ing, including who else was at the meeting she attended.
In addition to the testimony of Macey and Jennifer Rodri-
guez, the Respondent proffered the scripted power point pres-
entation as part of its defense to this unfair labor practice alle-
gation. As to be expected, nothing on the face of the document
amounts to an unfair labor practice under current Board law.
Instead, the power point slides contain information about the
election, urge employees to vote “no,” posit the loss of 30,000
jobs at GM as the reason the Union is seeking to represent the
Respondent’s employees, discusses the role of shop stewards
(called “Union pushers”) and the “control” they and the Union
would exercise over employees work and lives if the Union
were successful, refers to unions’ history of “embezzlement,
theft . . ., etc.” and, at the end, asks the employees if they are
willing to “risk it.” None of the power point slides in evidence
mention the potential loss of medical or 401(k) benefits. The
only reference to these benefits is on the following slide, which
appears toward the end of the presentation:
How does a Union Make its Money
• Through dues, fines and assessments.
• By attempting to control your health insurance pre-
miums.
• By attempting to control your incentives, bonuses,
etc. . . . .
• By attempting to control your 401k monies.
Thus, whether the Respondent committed this alleged unfair
labor practice turns initially on whether the testimony of the
General Counsel’s witnesses, that Macey did not limit himself
to the scripted presentation, is credible.
Having carefully considered the matter, I am unable to credit
Macey’s testimony that he merely read the script and did not
say anything beyond what was on the slides. I note that Jennifer
Rodriguez, whom I have already found not to be a credible
witness, did not effectively corroborate this testimony. Al-
though she claimed that Macey did not deviate from the script,
she admitted not being able to recall if he read it “line-by-line.”
Moreover, if Macey had simply read what was on the slides, the
meeting could not have lasted the thirty minutes he claims, and
certainly not 40 minutes to an hour, as the General Counsel’s
witnesses recalled. In fact, it takes about 5 minutes to read
through the exhibit purporting to be the power point presenta-

23 Macey testified that Jennifer Rodriguez attended at least one of his
meetings in its entirety and that she may have been present for parts of
other meetings. In all, Macey held nine meetings, three on each shift,
with about 15 employees at each meeting.
PENNANT FOODS CO. 461
tion, if one reads it at a pace one would expect to be used in a
meeting of this nature. Even allowing for time for the inter-
preter to translate what Macey was saying, the process could
not have consumed 30 minutes, unless Macey elaborated on the
points raised in the presentation.24 Finally, I note the natural
human tendency to extemporize from a prepared script in situa-
tions where an individual is speaking on a matter of signifi-
cance and is trying to make a point, or sell an idea.
Having found that Macey did not limit himself to the script,
at least at the two meetings attended by General Counsel’s
witnesses, I must determine whether he made the statements
attributed to him by these witnesses and whether such state-
ments amount to a threat of loss of benefits in violation of the
Act. Because I have discredited Macey’s claim that he limited
his statements at the meeting to what was in the script, I find
his denial of the alleged threat unpersuasive. I do not corrobo-
rate any of Jennifer Rodriguez’ testimony about this meeting.
As with her testimony regarding the conversation with Ricardo
Rodriguez and her testimony regarding the purported job de-
scriptions, I find that she was simply saying what was expected
of her and was not candid in her testimony.25 At the same time,
the testimony of General Counsel’s witnesses was not free from
doubt. I note, in particular, the lack of context to the statements
they recalled from the meeting. Although all recalled the meet-
ing lasting a considerable amount of time, they recalled very
little of what was said. In addition, on cross-examination, coun-
sel for Respondent was able to undermine some of their direct
testimony by getting the witnesses to acknowledge either that
they were not paying attention, or that they had confused sev-
eral meetings, or that their memory was not clear. At the same
time, I am struck by the fact that all three recalled very similar
statements by Macey, which they adhered to during somewhat
lengthy cross-examination.
After careful consideration, I have decided to credit General
Counsel’s witnesses and find that, at the two meetings con-
ducted by Macey that they attended, he elaborated on the points
raised in the power point by telling employees that, if they se-
lected the Union, they could lose their current health and 401(k)
benefits because the Union would want to have their own such
benefits. This statement was most likely made in connection
with the point made in the slide that unions make their money
through such fringe benefit funds and to emphasize the theme
of Macey’s meeting, i.e., that employees would “lose control”
if they were represented by a union. Whether such statements
violate the Act turns on whether the message conveyed to em-
ployees is that their wages and benefits are threatened, not be-
cause of the uncertainties of collective bargaining, but simply
because the employees selected a union to be their bargaining
representative. Federated Logistics & Operations, 340 NLRB
255 (2003), enfd. 400 F.3d 920 (D.C. 2005), and cases cited

24 Because the Respondent insists that questions were not allowed,
the additional time can not be explained by employee participation.
25 Even if I were to credit Jennifer Rodriguez, her testimony would
not be inconsistent with that of General Counsel’s witnesses because
she insisted she was not at the meeting attended by Ricardo Rodriguez
and Toporovsky and, because she did not work on the same shift as
Armstead, she was most likely not at that meeting either. In any event,
she did not claim to be at the meeting he attended.
therein. There is little or no discussion of the give-and-take of
collective bargaining in the Respondent’s scripted power point
presentation.26 On the contrary, a review of Macey’s presenta-
tion reveals that the message to be conveyed was that employ-
ees’ “loss of control” to the Union, and everything that went
along with that, would happen upon the Union’s selection as
the employees’ bargaining representative. The potential loss of
benefits was a given, if the employees voted for the Union, just
as the loss of direct access to management would be once the
“Union pushers” became shop stewards. Under these circum-
stances, Macey’s statements at the meetings attended by Gen-
eral Counsel’s witnesses amounted to an unlawful threat of loss
of benefits, and I so find.
b. Glancey’s alleged statement of futility
Glancey conducted the third series of meetings, within a
week of the election.27 At the hearing, the General Counsel
offered the testimony of three witnesses, i.e., Toporovsky,
Borukhovich, and Jeanelle Samuels,28 to establish that Glancey
made unlawful statements suggesting the futility of union rep-
resentation. In her brief, counsel for the General Counsel argues
that the “totality of the evidence,” including the power point
presentation itself considered in the context of the testimony of
employee witnesses and statements made by management rep-
resentatives at other meetings, conveyed the message that a
vote for the Union would be futile.
Toporovsky and Borukhovich attended the same meeting, on
second shift. Samuels, who worked third shift, attended a dif-
ferent meeting.29 As with the testimony regarding Macey’s
meeting, these three witnesses recalled that Glancey deviated
from the script of the power point presentation, elaborating on
the points made on the slides being shown. The witnesses had
difficulty identifying the document offered by the Respondent
as the power point used by Glancey, recalling some slides but
not others. This is understandable because an individual is more
likely to remember something they heard at a meeting than
what was written on a slide projected on a screen. All three
witnesses agree that Glancey identified himself as the man who
would represent the Respondent at any negotiations with the
Union and that he told the employees he had a lot of experience
dealing with unions. Toporovsky recalled Glancey telling the
employees he was “very good at it.” Each also remembers
Glancey saying essentially that employees could lose what they
currently had as a result of negotiations. None recalled him
saying that employees could gain anything from bargaining.
Nor did any of them recall specifically that Glancey “ex-
plained” the process of collective bargaining, despite what ap-
pears in the purported script of the power point.

26 The collective-bargaining process was the theme of Glancey’s
meeting, to be discussed.
27 Glancey testified that he conducted three meetings per shift, for a
total of nine, with between 8 and 13 employees at each meeting.
28 At the time of her testimony, Samuels had been employed by the
Respondent for more than 19 years. She was also an alleged discrimina-
tee in one of the settled cases.
29 Samuels did not stay for the entire meeting. She left after about
20–30 minutes when Glancey would not let her ask questions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD462
Samuels, who testified in more detail about her meeting, re-
called that Glancey also told employees that the Respondent
once had four plants that were unionized and now had two.
Glancey did not identify the plants and did not say that they had
closed because of the unions. Samuels also recalled that
Glancey spoke about the possibility of strikes and their impact
on employees, saying that the Respondent would use managers
and temporary employees to work if they went on strike and
that the employees might not get their jobs back when they
returned. Samuels did not remember Glancey using the phrase
“economic strike.” At one point, Glancey told the employees at
the meeting Samuels attended that he had seen strikes last 7
years or longer. Borukhovich also recalled Glancey speaking
about strikes although he did not recall as much detail as
Samuels. What Borukhovich did recall with certainty is
Glancey telling the employees throughout the meeting to “vote
no.”
Glancey denied, in response to leading questions from coun-
sel, that he made the statements attributed to him by the Gen-
eral Counsel’s witnesses that would suggest the futility of bar-
gaining. According to Glancey, he strictly followed the instruc-
tions to “stick to the script,” making no extemporaneous com-
ments, and to prohibit the employees from asking questions or
making comments. Unlike the other speakers, however, he
participated in the preparation of the power point presentation
he used at the meetings, including deciding which words and
phrases to put in bold type. He acknowledged that he probably
emphasized the passages in bold when reading the script.
Glancey testified that each presentation, with the translation,
lasted 25 to 30 minutes.
All parties appear to rely on the power point presentation to
prove their point. The Respondent argues that all of the state-
ments contained in the scripted presentation are lawful state-
ments regarding the collective-bargaining process and are pro-
tected under Section 8(c) of the Act. The General Counsel and
the Charging Party, on the other hand, argue that the “message”
contained in the presentation, as evidenced by what Glancey
chose to highlight, was that employees would gain nothing
from bargaining. The General Counsel emphasizes the follow-
ing portions of the presentation, with the bold type shown here
in the original, as hammering home the message of futility:
What Happens if the Union Wins?
Simply Stated
The Union Wins the Right to Bargain!
Nothing More
What Obligation Would the Company Have?
Simply Stated
The Obligation to
Bargain in Good Faith
What Does Bargaining in Good Faith Mean?
Nothing More
Than
To Sit Down With the Union
&
Talk in Good Faith!
It Does Not Have to Agree To Anything
That It Believes Is Not in
Best Interest of the Company
Bargaining Is A Two-Way Street
• Nothing is Automatic, No matter What The Union
Told You.
• Bargaining Is A “Give & Take” Process
• There Is No Guarantee That You Will Maintain
What You Presently Have.
• You Could Lose What You Have Now!
• The Company Does Not Have To Agree To Any-
thing!
We Will Not Agree To Anything
If It Is Not In The Best Interest of The Company’s Fi-
nancial Future!
The next slide in the presentation states that the Union does
not choose what to negotiate, that everything gets negotiated
and “you may actually end up with less!” The next few slides
talk about the Union’s desire for a union-security clause and
dues checkoff, suggesting what the Union might be willing to
trade for these provisions, i.e., wage increases, Blue Cross/Blue
Shield coverage, sick days, holidays and vacations. Or, the
presentation suggests, the Union might ask the employees to
pay more for their benefits as a trade off. The employees are
then told that, despite what the Union may have told them, “the
company does not have to give something up in negotiation
for nothing. Negotiations Does Not Work that way! In nego-
tiations employees could clearly end up losing!”
The next section of the presentation deals with impasse, us-
ing a proposal on wages to illustrate the topic. In the example,
the Union proposes an increase from $12 to $14 per hour while
the Employer proposes a decrease to $10 per hour. The slide
then states, “once the parties have negotiated in good faith and
have truly reached impasse . . . the law allows the employer to
implement its proposal and pay employees the $10 per hour it
proposed!” (Emphasis in original.) The General Counsel relies
upon the use of the word “once” rather than “if” as conveying
the message that impasse is inevitable. The next slide tells em-
ployees there are three possibilities in negotiations, including
that they could end up with more or the same as they currently
had, “but have to pay union dues, fines and assessments.” The
section on negotiations ends with the statement that “manage-
ment never loses its right to manage it’s people and operation
[sic].”
The next section in the presentation deals with strikes. The
first slide in this section asks the question: “What can the Union
do if the company says no in negotiations?” The answer pro-
vided is that the Union has the power to call the employees out
on strike. On the next slide, the Respondent reassures employ-
PENNANT FOODS CO. 463
ees that “a strike is not inevitable” and states that the Respon-
dent will do everything it can to avoid one. The presentation
then counterbalances the Union’s right to strike with the Re-
spondent’s right to continue operations and informs the em-
ployees that Respondent has already developed a strike plan,
which includes, inter alia, operating with temporary and per-
manent replacements. On the next slide, Respondent answers
the question, how long could a strike last, by citing “several
years” as one possibility. The presentation then discusses the
hiring of permanent replacements and the rights of striking
employees. Finally, the employees are told that the Union will
continue to earn money during a strike, only the employees will
be without income. The power point ends by telling the em-
ployees that they can minimize the possibility of “all this hap-
pening to you . . . by voting no.”
In her brief, counsel for the General Counsel also relies upon
statements made by Price during his power point presentation
and by Maruri in his final speech to the employees before the
election as “illuminating and reinforcing” Glancey’s message
of futility. Specifically, the General Counsel cites the following
slide from Price’s presentation, which was the second of the
four preelection speeches:
What Is the Union Not Going To Do?
They Will Not Be Able To Tell Us How To Run Our
Operation!
They Will Not Be Able To Tell Us What We Are Go-
ing To Pay In Wages & Benefits!
They Will Not Be Able To Tell Us What Vacations
You Are Going To Have!
They Will Not Be Able To Tell Us How Many Sick
Days We Can Have!
They Will Not Be Able To Tell Us How The Facility
Is Going To Be Managed!
We Would Negotiate In good Faith but We Will Not
Agree To Anything That Is Not In The Best Interest Of
The Company
She also cites the following passage near the end of Maruri’s
speech:
What do you think Subway is going to think if the union is
voted in and we are unable to deliver our product to them on
time, because of strikes called by the union, or other union
disruptions. Then remember that none of Subway’s other
suppliers (General Mills and Rich Products) who provide
them with bread, is faced with the same potential union dis-
ruptions.
As noted above, the complaint does not allege that anything
said by either Price or Maruri violated the Act. Nevertheless,
the General Counsel wants me to consider these portions of
their presentations as context to Glancey’s statements.
The General Counsel and the Charging Party argue that the
power point presentation, in the context of other statements and
conduct during the campaign, conveyed the message that the
outcome of negotiations was preordained and that employees
would gain nothing by selecting the Union as their bargaining
representative. I disagree. Nothing in Glancey’s scripted power
point presentation is like the unlawful statements of futility
found in the cases cited by the General Counsel and the Charg-
ing Party. In Smithfield Foods, Inc., supra, the president of the
company expressly told employees that no matter what the
union offered in negotiations, the employees would continue to
receive the same wages and benefits as employees at the com-
pany’s other plants. This statement was reinforced by a video in
which the company’s human resources manger told employees
that the union could not get the employees anything, that the
only thing employees can get is what the company is willing to
give. As found by the Board, these statements conveyed the
message that the employer had complete control over negotia-
tions, which is inconsistent with good faith bargaining. In Fed-
erated Logistics, supra, the employer made statements that
bargaining would start at zero and that the union would have to
go on strike and that any strike would be unsuccessful, leading
employees to believe that any loss of benefits would not be the
result of the give and take of bargaining but would be a puni-
tive response by their employer to the employees’ selection of
the union as their representative. See also Flamingo Hilton-
Laughlin, 324 NLRB 72 at 119 (1997), enf. denied in pertinent
part 48 F.3d 11661 at 1174 (D.C. Cir. 1998) (The company’s
new president told employees that he foresaw negotiations as
lasting for years.); Kenworth Trucks of Philadelphia, Inc., 229
NLRB 815, 877 (1977) (Company president told employees
that no matter how the election turned out, it was his company
and he’d run it as he pleased.).
As the Supreme Court said, in Gissel, supra:
An Employer is free to communicate to his employees any of
his general views about unionism or any of his specific views
about a particular union, so long as the communications do
not contain a “threat of reprisal or promise of benefit.” He
may even make a prediction as to perceived effects he be-
lieves unionization will have on his company. In such a case,
the prediction must be carefully phrased on the basis of objec-
tive fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control or to convey a
management decision already made to close the plant in case
of unionization.
395 U.S at 618. Although the Court there was addressing an
unlawful threat of plant closure, the same test has been applied
to similar campaign statements by employers regarding the
possible effects of unionization. See UARCO, Inc., 286 NLRB
55, 58 (1987). Recently, the Board reiterated, in an objections
case, that absent threats or promises, an employer may explain
the advantages and disadvantages of collective bargaining in
order to convince its employees that they would be better off
without a union. Medieval Knights, LLC, 350 NLRB 194
(2007).30 See also Park ‘N Fly, Inc., 349 NLRB 132, 133
(2007).
Applying the above test to the statements at issue here, I find
that Glancey’s power point presentation, either considered as a
whole, or in any specific part cited, never crossed the line be-

30 Because the standard for determining whether conduct is objec-
tionable is lower than that for finding a violation of the Act, it follows
that if the statement would not be objectionable, it could not be a unfair
labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
yond what is protected by Section 8(c) of the Act. While it is
true that Glancey emphasized the possible negative outcomes
of collective bargaining, at no time did he indicate that these
were a preordained conclusion. On the contrary, he stated at
several points that whatever resulted from unionization would
be the product of “good-faith negotiations” and he expressly
stated the Respondent’s commitment to bargain in good faith.
Moreover, none of the statements attributed to him by the Gen-
eral Counsel’s three witnesses, allegedly made when he devi-
ated from the script, amounted to a statement of futility. None
of these witnesses recalled Glancey making statements that
would indicate that the Respondent would have control over the
negotiations, that a strike was inevitable, or that bargaining
would start from “scratch” or “zero” or similar comments.
Even Samuels’ testimony that Glancey said he had seen strikes
last “seven years” was not a statement that the Respondent
would intentionally prolong negotiations to deny employees the
benefits of collective bargaining. Finally, I attach no weight to
the statements contained in the presentations given by Price or
Maruri that are cited by the General Counsel. As noted, the
General Counsel has not alleged these statements are unlawful.
That being the case, if Glancey’s presentation itself contained
no unlawful statements of futility, then I fail to see how a law-
ful statement by another management representative at a differ-
ent time could convert his speech to a violation of the Act.
Accordingly, based on the above, I find that the General
Counsel has not established that Respondent, through Glancey,
made statements that selection of the Union would be futile, as
alleged in the complaint, and I shall recommend that this alle-
gation of the complaint be dismissed.
C. The 8(a)(3) Allegations Regarding Lee Mabry
The consolidated complaint in Cases 34–CA–11385 and 34–
CA–11417 alleges that Respondent discriminatorily denied Lee
Mabry reinstatement following a workers’ compensation leave
of absence, and discriminatorily devised and applied a workers’
compensation program light-duty policy and a machine opera-
tor job description in order to deny Mabry reinstatement. The
Respondent has denied these allegations and offered testimony
and evidence at the hearing purporting to show that the two
policies at issue were adopted more than a year before Mabry
requested reinstatement. Respondent further offered evidence
that the decision not to reinstate him was based upon conflict-
ing reports from doctors who had treated Mabry and the Re-
spondent’s good-faith belief that he was not fit to perform the
duties of his job. In this connection, the Respondent has as-
serted that the Board lacks jurisdiction to determine whether
Mabry was physically able to return to work, as that issue is
properly before the Connecticut Workers’ Compensation
Commission.
As noted at the beginning of this decision, it is undisputed
that Mabry was perhaps the leading union advocate at the Re-
spondent’s facility from the beginning of the campaign in 2001.
As stipulated by the parties, he was “the face of the Union” in
the media and was quoted extensively in newspaper articles,
and other media. Mabry’s quotations in these media reports
often appeared in the context of inflammatory allegations
against the Respondent. It is clear from the evidence that this
particular campaign has received a great deal of local media
coverage, particularly surrounding the first election and the
unfair labor practices and objections to that election.31 Knowl-
edge of Mabry’s union activity and support can hardly be de-
nied by the Respondent. The Respondent’s animus toward the
Union is demonstrated by the unfair labor practices found
above as well as those found by Judge Biblowitz and adopted
by the Board at 347 NLRB 460. The General Counsel also
proffered evidence, to be discussed, of particular animus to-
ward Mabry. The issue to be determined here is whether that
animus motivated the Respondent to deny reinstatement to
Mabry and if so, whether the Respondent has proved that it
would have denied reinstatement to Mabry even if there were
no union activity. See Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
Mabry had been employed by the Respondent since July 8,
1991. He started as a machine operator and was promoted to
mixer operator, the position he was working when he was in-
jured on July 20, 1998, when a partial pallet of sugar fell off a
forklift onto his head. He suffered a severe cervical spine and
neck injury. After being out of work for about a month, Mabry
returned to work operating a labeling machine. This job, lo-
cated in the office area, involved very little physical exertion.
After a week or two performing this light-duty job, Mabry at-
tempted to return to his old job. He was unable to perform the
mixer’s job because of the amount of lifting required. He re-
turned to his doctor who gave him a note dated August 17,
1998, restricting him to lifting no more than 30 pounds and no
overhead lifting. After submitting this note to the Respondent,
he was assigned to the machine operator position, working on
one of the mixer lines. There was much conflicting testimony
about the physical requirements of this job, which I will discuss
infra. It is sufficient at this point to note that Mabry was able to
perform the machine operator job, with his doctor’s restrictions,
from August 1998 until September 10, 2001, when he went out
of work to have surgery on his cervical spine.
It was while Mabry was recovering from surgery that the un-
ion organizing drive began. Although he was out of work, he
was active in the campaign and served as one of the Union’s
observers at the November 29, 2001 election. Mabry returned
to work in April 2002, in the same machine operator position
he held before his surgery. He continued to work in that posi-
tion until pain forced him to go out on leave again in February
2003. Mabry was out of work this second time until August
2003. During his absence, Price was hired as plant director of
the North Haven facility. When Mabry returned to work this
time, he was restricted to lifting no more than 30 pounds with
no over the shoulder lifting. Mabry returned to the same ma-
chine operator position he held before. Mabry testified that he
was able to perform all the duties of this job without significant
modification or accommodation. Price testified that he in-

31 These are the cases that were settled over the objection of the Un-
ion. It appears that, following the settlement, and in the period immedi-
ately preceding the January 2006 election, the media coverage had
significantly diminished.
PENNANT FOODS CO. 465
formed Mabry’s supervisors of his medical restrictions and
instructed them to make accommodations. None of these super-
visors testified at the hearing. Price also testified that he was
aware that Mabry was unable to perform all parts of the job
because he received complaints from machine operators that
they were being required to pick up the slack for Mabry. Price
was able to identify only one employee who complained, Lou
Criscuolo. The General Counsel called Criscuolo on rebuttal.
Criscuolo, who has worked for the Respondent in excess of 16
years, was still employed by the Respondent when he testified.
Criscuolo confirmed that he worked on the same line with
Mabry in 2003 but he denied ever complaining to Price about
having to carry the load for Mabry. In fact, Criscuolo denied
that he had to perform Mabry’s duties for him.
In October 2003, while still working as a machine operator,
Mabry testified in Hartford, Connecticut, at a State legislative
hearing regarding the Union’s attempts to organize the Respon-
dent’s employees and the Respondent’s response. Price also
attended this hearing along with other management officials
from North Haven and the Respondent’s corporate offices.
There is no dispute that, shortly after this, Mabry and Price had
a conversation in Price’s office. According to Mabry, Price
called him to the office and told him that lies had been told
about the Respondent at the hearing and that this was hurting
the company. Price told Mabry that changes had been made at
the plant and that employees were no longer subject to the
abuses Mabry had complained about. Mabry agreed with Price
that changes had been made but he told Price that more needed
to be done and the employees needed a union. Price and Mabry
then debated whether the Union’s corporate campaign was
having any impact and whether the employees would be hurt by
it. At the end of the discussion, according to Mabry, Price said
that they were never going to agree on these issues and that he
was going to fight Mabry to the end. Mabry responded that he
was prepared to fight. Price testified that Mabry came to see
him on his own after the legislative hearing. According to
Price, Mabry said he wanted to make sure there were no hard
feelings. Price admits telling Mabry that some of the things said
at the hearing were lies, in particular the accusations that dis-
crimination and mistreatment of employees was continuing.
Price testified that the meeting ended with him and Mabry
agreeing to disagree. He denied that he told Mabry he would
fight him to the end. Price testified that, at some point during
this meeting, Mabry said he was only in it for himself, that he
wanted more money and if the Union could get him more
money, he didn’t give a damn about anybody else. I note that
such a comment seems inconsistent with Mabry’s activities on
behalf of the Union and his fellow employees since 2001 and
somewhat out of character. This fabrication on Price’s part
leads me to discredit his version of the conversation.
Not long after this meeting, on November 17, 2003, Mabry
was forced to go out on workers’ compensation again due to
radiating pain and numbness in his arms and fingers. An inde-
pendent medical examination ordered by the Workers’ Com-
pensation Commissioner presiding over his case found that his
surgery had not been entirely successful and that two of his
vertebrae failed to fuse properly. He had a second cervical
spine operation on September 1, 2004. While out of work re-
covering from the second surgery, Mabry continued his in-
volvement with the Union, walking the picket line with the
maintenance employees during their unfair labor practice strike
in May and June 2005 and attending the unfair labor practice
hearing before Judge Biblowitz in November 2005.32 After this
hearing, Mabry and others distributed a leaflet outside the plant
informing employees of the case. The leaflet was headlined:
“What is Richard Price afraid of?”33 On December 2, 2005,
Price posted in the plant a memorandum to the employees re-
sponding to the Union’s leaflet. In this memo, Price referred to
Mabry and other union supporters who were at the hearing as
“our typical few employees who make it a point to participate
in all these events.” Around the same time, during the first half
of December 2005, Mabry began circulating a petition for em-
ployees to sign, addressed to the NLRB and Congresswoman
Rosa DeLauro, demanding a Union election “now.” Mabry
testified that he solicited employees to sign the petition in the
Respondent’s parking lot and at nearby fast food restaurants
frequented by the Respondent’s employees. The petition was
faxed to the NLRB’s Regional Office and to DeLauro on De-
cember 22, 2005, the day after Mabry first attempted to return
to work.
On December 21, 2005, Mabry went to the Respondent’s fa-
cility with a note from Dr. Frank Lee of the Connecticut Spine
and Pain Center, who had been providing pain management
treatment to Mabry following his surgery in 2004. Dr. Lee’s
note, dated December 20, 2005, listed Mabry’s “present restric-
tions” as: “no restrictive neck movement. Avoid pushing and
pulling. No lifting for more than 10 lbs.” Mabry found Price in
the conference room with several managers. According to
Mabry, Price and Personnel Manager Maria Giaimo came out
of the room into the hallway where Mabry was standing. Mabry
handed Price an envelope containing Dr. Lee’s note saying,
“[T]his is my return to work.” Price opened the envelope, read
Dr. Lee’s note and said, “[W]e don’t have anything for you in
light duty.” Price told Mabry he would get a letter notifying
him of this fact. Price then escorted Mabry out of the building.
The next day, Mabry received a letter from Price, dated De-
cember 21, 2005, which referenced Dr. Lee’s restrictions and
then cited an Independent Medical Evaluation (IME) dated
October 24, 2005,34 as containing the following restrictions:
1. Capable of light duty work.
2. No repetitive use of the neck.
3. No repetitive lifting.
4. No working overhead.
5. No lifting over 20 pounds.
In the letter, Price then stated that the IME report indicated that
“maximum medical improvement may have been reached de-
pending on the results of a bone SPEC scan.” Price ends his
letter by reminding Mabry of their conversation earlier that day
in which he told Mabry that the Respondent did “not have any

32 Mabry did not testify in that proceeding.
33 The headline apparently referred to Price’s failure to appear and
testify at the unfair labor practice hearing.
34 This IME was performed by Dr. William Druckemiller at the re-
quest of the Respondent’s compensation carrier.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
positions that can accommodate these restrictions. Please ad-
vise us if your work restrictions are modified in the future.”
Mabry testified that, after receiving Price’s letter, he went
back to see Dr. Lee because he wanted Lee to release him to
work without restrictions. According to Mabry, he told Dr. Lee
that he had done the job before and knew he could do it. He
asked Dr. Lee to release him from the restrictions in his note.
Dr. Lee told Mabry that he was waiting for a job description
from the Respondent. When Mabry contacted Dr. Lee a few
days later, he said he had received the job description and ap-
peared reluctant to talk about it. Dr. Lee let Mabry see the job
description that had been faxed to him by the Respondent, but
he refused to give Mabry a copy. On December 27, 2005,
Mabry attended a hearing before the worker’s compensation
commissioner over the suspension of his benefits. As a result of
this hearing, Mabry went back to see the surgeon who per-
formed the September 2004 operation, Dr. Alan Waitze. Dr.
Waitze ordered a “functional capacity evaluation” to determine
what kinds of work activity he could perform. This evaluation
was done on January 4, 2006.35 Dr. Waitze also referred Mabry
to a new doctor for pain management, Dr. Kloth, because
Mabry no longer had confidence in Dr. Lee.
On April 4, Dr. Kloth gave Mabry a release to return to work
on April 10 with no restrictions. On April 10, Mabry went to
the Respondent’s facility with this release. He met with Price
and Giaimo in the office area of the plant. According to Mabry,
Price told him that the matter needed to be evaluated and that
Mabry would be notified of the results of the evaluation. Noth-
ing more was said and Mabry left the facility. A few days later,
Mabry received a letter from Giaimo requesting that he sign a
release so that the Respondent could obtain his medical records
and talk to his four most recent physicians. In her letter, Giaimo
explained that the Respondent was unfamiliar with Dr. Kloth,
that it appeared he had not treated Mabry before, and his re-
lease without restrictions was different from reports of other
doctors who had imposed restrictions on Mabry’s work activi-
ties. Giaimo expressed concern for Mabry’s well-being and a
reluctance to return him to work where he might re-injure him-
self. She informed Mabry that after conferring with his doctors
and evaluating the situation, the Respondent would determine
whether he could return to work.36 On May 18, after communi-
cating with his workers’ compensation attorney and the attor-
ney communicating with the Respondent’s labor counsel,
Mabry signed the release, as modified by his attorney.
Mabry heard nothing further from the Respondent regarding
his request to return to work until October 14, shortly before
the hearing in this case opened. On that date, he received a
Federal Express package containing a letter from Macey, who
had succeeded Price as plant director in July. Macey informed
Mabry that Dr. Kloth had submitted an accommodation as-
sessment form at the Respondent’s request which indicated that

35 The functional capacity evaluation showed that Mabry was capa-
ble, inter alia, of lifting 50 pounds frequently and occasionally more
than 50 pounds. He was described as functioning within the heavy
physical demand level. There is no evidence that the Respondent ever
saw this report.
36 Giaimo did not testify at the hearing.
Mabry could not lift more than 20 pounds and could not push
or pull more than 50 pounds.37 Macey stated in the letter that
the Respondent did not have any positions that could accom-
modate these restrictions. Macey went on to state that, based on
his interpretation of the medical reports from Dr. Druckemiller
and Dr. Waitze in 2005 as indicating Mabry was at “maximum
medical improvement” with a “permanent partial disability,” he
was not eligible for the Respondent’s light-duty program.
Macey did not explain or elaborate regarding the decision-
making process after he took over from Price in July 2006. He
merely testified that he based his decision not to return Mabry
to work on Dr. Kloth’s responses on the assessment form and
the Respondent’s light-duty policy.
Price testified regarding his response to Mabry’s December
21, 2005 request to return to work. According to Price, when he
and Giaimo met with Mabry, he asked who was Dr. Lee be-
cause he was not familiar with him as one of Mabry’s doctors.
Price claims he also asked Mabry if he had explained to Dr. Lee
the demands of his job and Mabry responded that he had. Price
testified he then asked Mabry if it was okay for Price to speak
to Dr. Lee to clarify the restrictions in his note and, again,
Mabry responded affirmatively. Price claims he wrote the De-
cember 21 letter to Mabry after this meeting and before speak-
ing to Dr. Lee because he thought there were discrepancies in
Dr. Lee’s note. On cross-examination, Price claimed that, after
Mabry left the facility, he asked Giaimo to retrieve Mabry’s
compensation file. It was while reviewing the file that he came
across Dr. Druckemiller’s IME with the apparently inconsistent
work restrictions. As previously noted, Giaimo did not testify to
corroborate Price’s version of events. In addition, in the De-
cember 21 letter, Price confirmed that he told Mabry there was
no work for him before undertaking any investigation, includ-
ing the review of Mabry’s file. I also note, as pointed out by
counsel for the General Counsel and the Charging Party, that
Price’s manner of answering questions about his response to
Mabry’s request, by using the plural “we” and the conditional
tense, “would have” did not instill confidence that his answers
were a truthful recounting of events. It appeared more along the
lines of a studied attempt to conceal what really happened. It is
also noteworthy that Price consulted with the Respondent’s
corporate offices and labor counsel in response to Mabry’s
request. This was a departure from the way in which a return to
work by employees on worker’s compensation is customarily
handled. According to Price, such matters are usually handled
by the human resources department in consultation with the
Respondent’s compensation insurer.
Price admitted contacting Dr. Lee after Mabry submitted his
release to return to work, which is also not his customary re-
sponse to a request to return to work. According to Price, he
asked Dr. Lee if Mabry had disclosed to him the physical de-
mands of his job. When Dr. Lee said he had not, Price faxed a
copy of the machine operator job description to him. This is the
job description that the General Counsel alleges was concocted

37 As the General Counsel points out in her brief, Macey’s charac-
terization of Dr. Kloth’s restrictions was not completely accurate. Dr.
Kloth wrote on the assessment form that Mabry’s capacity for pushing
and pulling would be increased “if on wheels.”
PENNANT FOODS CO. 467
to deprive Mabry of reinstatement. Price testified further that at
the time Mabry made his request to return to work, the Respon-
dent was operating under a workers compensation light-duty
policy that had been adopted in 2004. Under this program, light
duty is only temporary, limited to 60 days, and not available to
employees who have a permanent disability preventing them
from returning to full duty. Price testified that he interpreted the
reports in Mabry’s file as indicating his restrictions were per-
manent. The General Counsel has also alleged that this light-
duty program was discriminatorily adopted and applied to
Mabry to deny his return to work.
Price testified that he created the light-duty policy, which he
relied on as a basis for denying reinstatement to Mabry, in early
2004. According to Price, there was no policy in place when he
arrived at the plant. At that time, the Respondent’s practice was
to reinstate anyone who returned to work with a doctor’s note
after an injury, whether or not the injury was work related,
without limit to how long the employee could remain in a light-
duty assignment. Price testified that this created problems for
other employees who had to pick up the slack for the injured
employee. Price plagiarized the new policy from one that had
been in place at Pillsbury, one of his previous employers. The
new policy, which purports to have an effective date of Febru-
ary 2004, provides in pertinent part:
Chef Solutions in North Haven, Connecticut recog-
nizes the value of permitting employees returning from
illness or injury to temporarily work on a light duty basis.
Light duty placement may include a reduction of work
hours, limiting or altering duties in the employee’s exist-
ing position, or temporarily reassigning the employee to
another position, which he or she is qualified and capable
to perform under a qualified physician’s restrictions.
Under this policy, “temporary” has been defined as not
to exceed more than sixty (60) days for non-recurring ill-
ness and/or injury. This “light duty” policy does not rec-
ognize “permanent” light duty work, but will make ac-
commodations under the ADA.
In cases where an employee has had an on-the-job in-
jury/illness, the employee’s supervisor in conjunction with
the Human Resource department shall fully consider and
attempt a light duty placement of the injured/ill employee
for no more than sixty (60) days. If within sixty (60) days
after their return to work on light duty the injured/ill em-
ployee is unable to perform the full scope of the duties of
their regular full-time position because of ongoing medical
restrictions, the individual will be released from light duty
and placed on full-time workers compensation. These in-
dividuals will not be allowed to return to work to full-duty
until they are fully released without restrictions by a quali-
fied medical provider.
The policy also treats nonwork-related injuries differently.
Price testified further that this new policy “would have been
communicated” to employees at an employee communication
meeting and “would have been posted” on a bulletin board
immediately after the meeting. Such postings usually remain on
the board for about a week. After that, the policy would be kept
in the human resources department with all the other company
personnel policies. According to Price, he “probably would
have communicated” this at a meeting in late January 2004,
shortly before the policy was to go into effect. Price didn’t
believe copies of the policy were distributed to the employees.
The only witness to corroborate Price regarding the dissemina-
tion of the light-duty policy was Supervisor Jennifer Rodriguez.
She testified that she attended a meeting at which Price pre-
sented the policy to the employees. She also claimed to have
seen it posted on the bulletin board. She could not recall any
details of this meeting beyond her “corroboration” of Price’s
testimony about the policy. Jennifer Rodriguez also admitted
that she did not keep a copy of the policy in her office, even
though under the policy she would have had a role in placing
employees in a light-duty assignment. She also admitted that
she had not seen the policy since it was allegedly adopted in
early 2004 until she testified at the hearing. Significantly, nei-
ther Giaimo, the local human resources manager whom Price
claimed was involved in the adoption and maintenance of the
policy, nor Glancey, who was the corporate human resources
official with whom Price would have consulted before adopting
such a policy, testified about this policy. None of the employee
witnesses who testified for the General Counsel had ever seen
this policy.38
Price conceded that, after allegedly adopting the light-duty
policy in early 2004, he had not reviewed it or otherwise taken
any steps to ensure it was being followed until Mabry’s return
to work became an issue in December 2005. According to
Price, the human resources department normally handles these
matters. Records from employees’ personnel files that the Gen-
eral Counsel obtained by subpoena and placed in evidence
show that the 60-day limit had not been strictly followed since
the policy allegedly went into effect. The General Counsel in
her brief cites 12 employees who remained in light-duty as-
signments in excess of 60 days, including several who had mul-
tiple light-duty assignments during this period. Significantly,
the Respondent called no one from the human resources de-
partment to testify about the policy or its application to Mabry
and other employees.
Having considered the evidence in the record regarding the
“light-duty policy,” I conclude in agreement with the General
Counsel and the Charging Party that there is no credible evi-
dence to establish that this policy was in fact adopted in 2004
and applied at any time before Mabry sought to return to work.
In particular, I draw an adverse inference from the Respon-
dent’s failure to call Giaimo to testify about this matter, which
was admittedly within her jurisdiction, and the failure to ask
any questions of Glancey, the corporate human resources offi-
cial who would be in a position to corroborate the existence of
such a policy. I also note the total lack of any objective evi-
dence that would corroborate Price’s testimony regarding the
adoption and implementation of this policy. See Daikichi Sushi,

38 Respondent argues that there would have been no reason for these
employees to be aware of the policy since none of them had suffered a
work-related injury after the policy was adopted. However, Respon-
dent’s own witnesses claim that all employees were made aware of the
policy through the meeting and posting. Under these circumstances, it
is significant that no employee ever heard of it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
325 NLRB at 622, and cases cited there. Finally, the frequent
exceptions to the 60-day limit on light-duty assignments docu-
mented in the Respondent’s own business records shows either
that no such policy existed or that it was not routinely enforced.
Either way, it is clear that Mabry’s request to return to work
was treated differently than that of other employees.
Price also relied upon a job description for the machine op-
erator position that Mabry previously held as a basis to deny
him reinstatement. As noted above, he faxed this job descrip-
tion to Dr. Lee in an attempt to show that Mabry could not
perform the duties of this job under Dr. Lee’s restrictions. As
with the light-duty policy, Price claimed that he created this job
description with others in late 2003–early 2004. The impetus
for this action was a wage increase that Price sought to give the
employees. In order to justify a change in the wage scale, Price
had to create job descriptions justifying more money by show-
ing differentiation in job skills and greater accountability. Price
testified that he completed this task in time for the 2005 wage
increase, which was implemented at the beginning of that year.
Price testified that the job descriptions which existed when
he came to the plant were very general and contained no ergo-
nomic details, such as lifting requirements. He began the task
of redefining the jobs at the North Haven plant by soliciting
other plants within the Company to send him their job descrip-
tions. Price identified an October 2004 e-mail he received from
the engineering manager at a facility in Thorofare, New Jersey,
as being part of this process. Although Price claimed to have
gotten information from other plants that he used in compiling
the job descriptions, he did not save any of this information.
Nor was the Respondent able to produce the more general job
descriptions that Price claimed existed when he arrived at the
North Haven facility.
Price testified further that, as part of the process, he moni-
tored the jobs in the plant with Macey, “probably” also re-
viewed equipment manuals, and consulted with supervisors on
the job, like Jennifer Rodriguez.39 He then used a template he
got from the Respondent’s corporate office and drafted a num-
ber of job descriptions, including the one for the machine op-
erator position that he identified. Although Price claimed that
he did not need corporate approval to change the job descrip-
tions, he needed these job descriptions to obtain approval for
the changes in the wage scale that he wanted to implement.
Consequently, Price had to make a report to Glancey and Janie
Mirkin, another official in the corporate human resources de-
partment to explain the justification for the new wage scale.
Although Price claims he used a handout in making this report,
he testified that he did not include the new job descriptions in
the handout. He merely described, orally, the differences in the
jobs that warranted different pay.40 When Price obtained ap-
proval for the wage adjustments, he met with the employees to
communicate the news to them. Price “didn’t think” he dis-
seminated the new job descriptions to the employees at the
same time. According to Price, when the job descriptions were
done, he merely gave them to the human resources department

39 Neither Macey nor Jennifer Rodriguez corroborated this testi-
mony.
40 Glancey was not asked any questions about this process.
where they were maintained. No other witnesses were called to
testify regarding the maintenance and application of these job
descriptions. In addition, none of the employee witnesses had
seen the particular job description at issue before. Rodriguez
herself testified that she was never given a copy of any of the
new job descriptions, despite here position as a supervisor.
Even Macey, the operations manager at the time Price allegedly
redefined the job descriptions, testified that he did not see the
job description until the summer of 2005.
The machine operator job description that Respondent relies
upon includes, in the “general description” section, the follow-
ing requirements:
The position requires a minimum weight lifting of 50 pounds.
Pushing and pulling of 250 pound racks and/or flour recepta-
cles. There is continuous movement, i.e. bending, twisting,
climbing and lifting.
This format differs from that of other job descriptions that were
created at the same time. Unlike the machine operator position,
the specific requirements of the job are not listed in the “gen-
eral description” section. In addition, the other job descriptions
do not contain the same degree of specificity as to physical
requirements. For example, although the Respondent’s wit-
nesses described the heavy physical demands of the scaler posi-
tion, the job description for that position in evidence is devoid
of these physical aspects of the job. Similarly, although Macey
testified that the packer has to lift scrap buckets, its job descrip-
tion contains no weight requirement. The testimony of Macey
and Price suggests that the mixer position is physically taxing,
with frequent heavy lifting, bending and climbing, yet these
physical aspects of the job are not in the job description.
Most significant with respect to the credibility of Price’s tes-
timony regarding the disputed job description is the evidence
from Respondent’s own records showing that, not long before
Mabry’s request to return to work, the Respondent faxed a dif-
ferent machine operator job description to the Respondent’s
workers’ compensation insurance carrier in a case involving a
different employee. On November 9, 2005, Zelina Rosa, who
was identified as a human resources assistant working in
Giaimo’s office with responsibility for handling communica-
tions with the carrier, faxed a job description which contained
none of the weight requirements and repetitive movement re-
quirements that appear in the job description that Price faxed to
Dr. Lee and that the Respondent relies upon in this case. In
addition, in August 2005, Rosa faxed a completed “Job Re-
quirement” form to the insurance carrier itemizing the job du-
ties of machine operator Juan Serrano. The information Rosa
provided on this form is inconsistent with the machine operator
job description that Price claims he created in 2004. In the form
faxed by Rosa, the machine operator position requires occa-
sional lifting of 11–25 pounds and occasional pushing and pull-
ing, squatting, climbing, and reaching above the shoulder with
no carrying and simple grasping.
As previously noted, Respondent offered the testimony of
Price and Macey to describe the physical requirements of the
job that Mabry held before his injury. In almost every respect,
they contradicted the testimony of Mabry and David Armstead,
the mixer who is familiar with the job because of the close
PENNANT FOODS CO. 469
proximity of his work location at the head of the production
line. In addition, the machine operator and mixer frequently
work together to ensure the line is running smoothly. As be-
tween the Respondent’s witnesses and General Counsel’s wit-
nesses, I found Armstead’s and Mabry’s description of the job
more realistic and credible. Their description is also consistent
with the company documents cited above that the Respondent’s
human resources department used in its dealings with the com-
pensation carrier, which is the most objective evidence regard-
ing the requirements of the machine operator position.
As described by Armstead and Mabry, the machine operator
job essentially involves cleaning and maintaining the machine
which takes the dough mixed by the mixer operator and forms
it into rolls to be frozen and shipped to the Respondent’s cus-
tomers. The work involves lifting buckets of scrap which, when
properly filled, weigh less than 35 pounds, and pushing a
wheeled rack of scrap buckets to the mixer to rework the scrap
into a batch of dough. The machine operator is also required to
regularly clean out trays of excess flour or dough; adjust, clean,
and change the plates that form the dough balls into cylinders;
and periodically clean other parts of the machine. The machine
operator is also required to fill a wheeled barrel with flour from
the flour silo. Although obviously some lifting is required, it is
nowhere near the minimum of 50 pounds that Price described in
the job description he faxed to Dr. Lee. Price’s attempt to ex-
plain his use of the phrase, “minimum weight lifting of 50
pounds” defied belief and came down to the rare occasion when
a machine operator might have to lift 50 pound bags of flour to
help the mixer operator, who has the ultimate responsibility for
adding flour to the mix. This patent exaggeration was evident
throughout Price’s testimony and was continued during
Macey’s testimony.
As the General Counsel argues, the testimony of the Re-
spondent’s witnesses was tailored to rely upon the exceptions to
the normal routine of a machine operator to make it appear that
the physical demands of the job were beyond Mabry’s capabili-
ties. Perhaps most telling was the testimony of Rene Caporal,
Gustavo’s brother who has worked at the North Haven plant for
about 15 years. He has been a machine operator for the last 3–4
years, performing the job at issue in this proceeding. Signifi-
cantly, Caporal suffered a major injury on the job in 1999 in
which his right hand was severed. Although doctors were able
to re-attach his hand, he continues to have only 60–70 percent
use of his dominant right hand. Nevertheless, he is able to do
the very job the Respondent denied Mabry, albeit with some
help from his coworkers. I found Rene Caporal’s description of
the duties of the job far more credible than anything said by
Price or Macey. I conclude based on the credible and objective
evidence in the record that Respondent fabricated a new job
description with enhanced physical requirements, which did not
reflect the true demands of the job, in order to prevent Mabry
from returning to work.
The above recitation of facts shows that, in at least two re-
spects, the Respondent treated Mabry’s request to return to
work differently than that of other employees. Specifically, the
Respondent applied the previously ignored 60-day limit on
light-duty assignments and fabricated a more physically de-
manding job description to deny him reinstatement. The Gen-
eral Counsel offered other examples, culled from the Respon-
dent’s business records, showing other employees with work-
related injuries were reinstated upon a medical release notwith-
standing restrictions that were similar to or greater than those
prescribed by Mabry’s doctors.41 These records show that even
employees with a “permanent partial disability rating” or who
had reached “maximum medical improvement,” factors cited
by the Respondent’s witnesses as fatal to Mabry’s efforts to
return to work, were permitted to return either to a light-duty
assignment or to their previous jobs with accommodations.42 In
addition to the documentary evidence, testimony from several
of General Counsel’s witnesses revealed evidence of disparate
treatment. For example, Ricardo Rodriguez testified that Moses
Robertson, an employee from the packing department, worked
with him in the quality control department after an injury on the
job in December 2005, around the same time that Mabry sought
to return to work. Ricardo Rodriguez testified without contra-
diction that his supervisor, Jennifer Rodriguez, told him that
Robertson was to work “light duty,” just doing paperwork in
the office. Robertson continued to perform light duty for a cou-
ple months.
Under the Board’s Wright Line test, applicable to 8(a)(3) al-
legations like the one at issue here, the General Counsel must
first show by a preponderance of the evidence that protected
activity was a motivating factor in the Respondent’s decision to
deny Mabry’s request to return to work. If the General Counsel
meets this burden, then the Respondent must show it would
have made the same decision even in the absence of protected
activity. 251 NLRB at 1089. Accord: United Rentals, Inc., 350
NLRB 951 (2007). The Board has said that it is not enough for
the Respondent simply to present a legitimate reason for its
action. Rather, the Respondent must persuade, by a preponder-
ance of the evidence, that it in fact acted upon that reason.
Wright Line, supra. As noted at the beginning of this section of
the decision, the elements of the General Counsel’s prima facie
case are amply supported by the record here. Mabry’s role in
the Union’s campaign is undisputed, knowledge of his activity
is admitted, and general antiunion animus has been demon-
strated here and in the prior case by unfair labor practice find-
ings. I also note there is credible evidence of particularized
animus toward Mabry in Price’s statement to Mabry in October
2003 that he would find him to the end over the Union. Finally,
the evidence described above showing that Mabry’s request to
return to work was treated differently than that of other em-
ployees is sufficient to persuade me that Mabry’s union activi-
ties were a motivating factor in the Respondent’s decision to
deny him reinstatement.43
Having already discredited the testimony of Price regarding
the light-duty policy and machine operator job description, it is

41 See, e.g., the workers’ comp. records of machine operators Victo-
ria Palma, Juan Sanchez, Hugo Xoxoyotl, Julian Serrano, and Cristano
Rodriguez.
42 See, e.g., the workers’ comp. records of Juan Sanchez and the tes-
timony of Rene Caporal.
43 In fact, as the Charging Party points out, there is no evidence in
the record that the Respondent has ever denied an employee’s request
to return to work upon being released to return by his doctor, regardless
of the restrictions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
apparent that Respondent’s asserted reasons for denying
Mabry’s request were a pretext. As noted, there was no consis-
tently applied light duty policy that would have prevented
Mabry’s return to work and the job description was doctored to
exaggerate the physical demands of the machine operator posi-
tion to make it impossible for any doctor to release Mabry to
this job. The Respondent argues that it had no choice but to
deny Mabry’s request in December 2005 and again in April
because of the conflicting evidence from Mabry’s doctors.
While this argument at first blush has some appeal, it is clear
that it is not the true reason the Respondent refused to return
Mabry to work. Thus Price told Mabry he had no work for him
on December 21 before he even reviewed Mabry’s compensa-
tion file and before even being aware that there were conflict-
ing reports. Moreover, Price told Mabry there was no light-duty
work even though at the same time the Respondent had pro-
vided another employee, Moses Robertson, with light duty.
Even assuming the Respondent had some legitimate concern
about Mabry’s ability to perform the machine operator job, this
concern should have been resolved by the time the Respondent
received Dr. Waitze’s report in October, showing that Mabry
was capable of performing the job as it had been described in
the job description and job requirement form utilized by the
Respondent’s human resources department.
Having found that the Respondent’s asserted reason is a pre-
text and was not actually relied upon to deny Mabry’s request
to return to work, it follows that the Respondent has not met its
burden of persuasion under Wright Line, supra. United Rentals,
Inc., supra, and cases cited there. Accordingly, I find that Re-
spondent’s refusal to allow Mabry to return to work, since De-
cember 21, 2005, violated Section 8(a)(3) and (1) of the Act. In
addition, I find that the Respondent’s reliance upon a light-duty
policy that either did not exist or was routinely ignored and its
fabrication of a false job description to prevent Mabry’s return
to work independently violated Section 8(a)(3) and (1) of the
Act because they were a pretext for discrimination.
Finally, I reject the Respondent’s argument that the Board
lacks jurisdiction to decide this issue because of a state statute
that provides that the Connecticut Workers’ Compensation
Commissioner has the authority to determine an employee’s
work capabilities. Whatever authority is conferred by the State
statute would not deprive the Board of carrying out its function
of determining whether this Employer had discriminated
against an employee in violation of the Act. The Connecticut
Workers’ Compensation statute and the National Labor Rela-
tions Act address different issues which are not in conflict.
Nothing in this decision would interfere with the Commissioner
determining in a proceeding before it whether Mabry is entitled
to compensation for a work-related injury.44
III. PETITIONER’S OBJECTIONS TO THE ELECTION
At the re-run election in Case 34–RC–1925 that was held on
January 20, the Union lost by a vote of 84–54 with 1 nondeter-
minative challenged ballot. On January 26, the Union timely

44 The Respondent has not proffered, nor relied upon, any finding or
decision of the Workers’ Compensation Commissioner that would
establish that Mabry was incapable of performing either his machine
operator position or any light-duty position the Respondent had.
filed Objections to Conduct Affecting the Results of the Elec-
tion. On May 22, the Acting Regional Director issued a Report
on Objections in which he directed that Petitioner’s Objections
1, 2, 3, 4, 6, 8, 13, 14, 15, and 16, and the additional unalleged
objectionable conduct alleged in paragraph 11 of the consoli-
dated complaint in Cases 34–CA–11385 and 34–CA–11417, be
consolidated for hearing with that complaint. The Board, in an
unpublished Order dated August 23, after considering the Em-
ployer’s exceptions to the Report, affirmed the Acting Regional
Director’s determination to send these objections to hearing.
Based upon the Board’s Order, the following objections are
thus before me for determination:45
1. The Employer discriminated against Lee Mabry, a
well-known, open, leading Union supporter, for the
purpose of discouraging employees from support-
ing the Union, by refusing to permit him to return
to work.
2. The Employer issued a letter to employees, telling
them that “we insist” that the employees vote
against the Union.
3. The Employer threatened employees with the loss of
benefits if the Union won the election.
4. The Employer interrogated employees about their
Union activities and sympathies.
5. [withdrawn].
6. The Employer threatened to close the plant if the Un-
ion won the election.
7. [withdrawn].
8. The Employer threatened employees with termination
if they supported the Union.
9. [withdrawn].
10. [withdrawn].
11. [withdrawn].
12. [withdrawn].
13. The Employer prohibited employees who sup-
ported the Union from distributing Union literature
on Company premises.
14. The Employer threatened to deny employees raises
if they selected the Union as their collective bar-
gaining representative.
15. The Employer issued warnings to employees be-
cause of their Union activity.
16. The Employer failed to reinstate unfair labor prac-
tice strikers to their former positions of employ-
ment.
I have already found above that Respondent, through Jenni-
fer Rodriguez, interrogated employee Ricardo Rodriguez re-
garding his union activities and support on two occasions be-

45 At the beginning of the hearing, I ruled that the critical period for
considering objections in this case, consistent with existing Board law,
runs from the date of the last election, November 29, 2001, to the date
of the re-run election, January 20. See Double D Construction, 339
NLRB 303 (2003); Star Kist Caribe, 325 NLRB 304 (1998); Times
Wire & Cable Co., 280 NLRB 19, 20 (1986); and Singer Co., 161
NLRB 956 (1966). The Respondent had sought to limit the critical
period to the time between the agreement to schedule a re-run election,
in December 2005 and the election date.
PENNANT FOODS CO. 471
tween January 10 and the date of the election, and threatened
him with plant closure on January 10. Based on these findings,
I shall recommend that Objections 4 and 6 be sustained. I have
also found above that Respondent, through Macey, threatened
employees with loss of benefits during at least two meetings he
conducted in the second week of January. Based on this find-
ing, I shall recommend that Objection 3 be sustained. I shall
further recommend that Objection 1 be sustained based on my
finding that the Respondent discriminated against Mabry by
denying him permission to return to work since December 21,
2005. Having found that Price did not threaten Borukhovich
with termination at the employee communication meeting in
early January, I shall recommend that Objection 8 be overruled.
Based on my recommendation that paragraph 11 of the com-
plaint, alleging that Glancey made unlawful statements of futil-
ity during his meeting, be dismissed, I shall recommend that
this unalleged objection be overruled.
Objections 15 and 16, as determined by the Acting Regional
Director, are identical to conduct already found unlawful by the
Board at 347 NLRB 460. Those allegations relate to the Re-
spondent’s treatment of maintenance department employees
Toporovsky and Borukhovich in late May and early June 2005,
more than 7 months before the election. While somewhat re-
mote in time, these unfair labor practices had not been reme-
died when employees voted on January 20. Indeed, Administra-
tive Law Judge Biblowitz’ decision finding the unfair labor
practices, had just issued on January 19. Under these circum-
stances, I shall recommend that Objections 15 and 16 be sus-
tained.
Objections 13 and 14, as determined by the Acting Regional
Director, are identical to allegations contained in the consoli-
dated complaint that issued in Cases 34–CA–10981 and 34–
CA–11029 on January 5, 2005, more than a year before the
election. This is the complaint that was resolved by a formal
settlement agreement with a nonadmissions clause on March
17, 2005. Because the settlement agreement is not proof of the
conduct alleged, the Charging Party offered evidence to prove
these objections here. I find it unnecessary to determine
whether the conduct occurred as alleged in the objections be-
cause these events are too remote in time to have affected the
results of the January 20 election. The evidence offered in sup-
port of Objection 13 indicates that the alleged prohibition of
employees’ distribution of union literature on company prem-
ises occurred on September 28, 2004. The evidence offered in
support of Objection 14 was a notice posted on November 10,
2004, announcing that “all nonunion employees in good stand-
ing” would receive a raise effective January 2, 2005. Conduct
occurring more than a year before the election could not have
affected the results. Accordingly I shall recommend that Objec-
tions 13 and 14 be overruled.
The sole remaining objection (Objection 2) relates to a letter
in Spanish that was sent to all Spanish-speaking employees on
January 6, 2 weeks before the election. There is no dispute that
this letter, signed by Plant Director Price, was sent to at least
half the employees in the unit whose primary language is Span-
ish. The following sentence appears in the letter:
La ley dice ques usted tiene el derecho de no apoyar la union
y nosotros insistimos a usted que no lo hago.
(Emphasis added.) The English version of this letter, sent to
employees at the same time, translates this sentence as follows:
The law says that you have the right not to support the union
and we urge you not to.
The Charging Party called Dr. Lillian Uribe, professor of
Spanish and chairman of the Modern Languages Department at
Central Connecticut State University, as an expert witness. Dr.
Uribe is also a native of Uruguay and Spanish is her primary
language. Dr. Uribe testified that “insistimos” literally means
“we insist” and that this is an emphatic statement in Spanish.
Dr. Uribe testified that there is no literal translation for the
word “urge” that appears in the English version of the letter.
While acknowledging that “insistimos” could be used as a
translation for this phrase, she testified that there are other
phrases in Spanish that carry a less forceful tone. Dr. Uribe
testified that, were she to translate “we urge,” she would use the
verb “pedir”, i.e., to ask, with an adverb to make it stronger.
The Board applies an objective standard to determine
whether conduct warrants setting aside an election. It is not
necessary to show that the conduct was intentional or actually
had an affect on the election. The inquiry is whether the con-
duct has a tendency to interfere with employees’ free choice.
Lake Mary Health & Rehabilitation, 345 NLRB 544, 545
(2005), and cases cited there. As with alleged violations of
Section 8(a)(1), the Board considers such statements from the
point of view of the employee and how an objective employee
receiving this letter would understand the statement. See NLRB
v. Gissel Packing Co., 395 U.S. at 442.
I find that the Spanish version of the letter, with its use of
language that conveys the message that the Employer is insist-
ing that employees not support the Union, is objectionable. The
Board has held that “an instruction, admonition, or warning to
an employee, express or implied, not to get involved in activi-
ties protected by the Act interferes with, restrains, and coerces
employees in the exercise of their rights under the Act.” Man-
agement Consulting, Inc. (MANCON), 349 NLRB 249, 249
(2007), and cases cited there. If such statements would be
found unlawful under Section 8(a)(1), as was the case there,
then a fortiori they meet the test for objectionable conduct. Dal-
Tex Optical Co., 137 NLRB 1782, 1786 (1962). Accord: IRIS
U.S.A., Inc., 336 NLRB 1013 (2001). Accordingly, I shall sus-
tain Petitioner’s Objection 2.
Having sustained those objections which parallel the unfair
labor practice findings here and in the prior Board decision, it
necessarily follows that the election should be set aside. NYES
Corp., 343 NLRB 791 fn. 2 (2004); IRIS U.S.A., Inc., supra;
Dal-Tex Optical Co., supra. Although several of the unfair
labor practice affected only one or a small group of employees,
the threat by Macey was made at two employee meetings at-
tended by at least 30 unit employees. In addition, the letter
containing the objectionable statement insisting that employees
not support the Union was sent to at least half the unit who
spoke Spanish. I find that this objection alone would suffice to
warrant a new election. Accordingly, I shall recommend that
the January 20, 2006 election be set aside and a new election
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
conducted after the Respondent has remedied the unfair labor
practices found here.
CONCLUSIONS OF LAW
1. By interrogating employees about their union activities,
and by threatening employees with plant closure and the loss of
benefits if they selected the Union as their collective-bargaining
representative, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By denying, since December 10, 2005, Lee Mabry’s re-
quest to return to work following a workers’ compensation
leave of absence, and by relying upon a light-duty policy that
did not exist or was unenforced and a job description that was
exaggerated to deny him reinstatement, the Respondent has
discriminated against its employees with regard to their terms
and conditions of employment based upon their union member-
ship and activities and has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
3. Respondent has not engaged in any other unfair labor
practice as alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent having discrimina-
torily denied Mabry’s return to work since December 10, 2005,
it must offer him reinstatement to his job as a machine operator
or to a light-duty assignment consistent with any medical re-
strictions imposed by a physician, and make him whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). Because I have found that the Respondent discriminato-
rily modified the machine operator job description to prevent
Mabry’s return to work, it should be ordered to rescind the job
description that was faxed to Dr. Lee as described above. With
respect to the light-duty policy that I have found did not exist or
was not applied, Respondent should rescind the policy until
such time as it has remedied the discriminatory refusal to rein-
state Mabry.
In addition to the traditional remedies for the 8(a)(1) and (3)
violations found here, the General Counsel has requested addi-
tional remedies to cure the effects of the Respondent’s unlawful
conduct. Specifically, the General Counsel seeks an order re-
quiring that the Respondent:
1. Direct its Plant Manager, Production Manager, or
Corporate Vice President for Human Resources to
read the notice to employees during working time,
with an interpreter, if necessary, and with a Board
agent present during the reading.
2. Supply the Union with unit employees’ names and
addresses, updated every six months.
3. Allow the Union reasonable access to bulletin boards
and to all places where notices to employees are
customarily posted.
4. Provide the Union with notice of, and equal time and
facilities for the Union to respond to, any employer
address to employees about union representation.
The General Counsel further requests that provisions (2), (3),
and (4) remain in effect for 2 years from the date of notice post-
ing, or until the Union is certified as the employees’ bargaining
representative following a free and fair election, whichever
occurs first.
In support of this request, the General Counsel cites the Re-
spondent’s history of unfair labor practices, as evidenced by the
Board’s decision in Pennant Foods Co., 347 NLRB 460, supra,
and the serious nature of the unfair labor practices found here.
The General Counsel argues further that special remedies are
necessary here because the Respondent has committed these
unfair labor practices after previously having entered into two
settlement agreements, including one formal settlement agree-
ment that provided for special remedies similar to those re-
quested here. Although I previously rejected the settlement
agreements as evidence when proffered at the hearing, I have
considered them as part of the history of the case.46 In addition,
I permitted testimony from witnesses regarding the reading of
the notices which was part of the prior settlement. The General
Counsel argues that, while these agreements are not proof of
prior unfair labor practices, they “set the remedial bar” for fu-
ture violations. The failure to impose similar remedies here,
when the Respondent has engaged in unfair labor practices
following execution of such a settlement agreement would be a
step backward in ensuring that employees’ Section 7 rights are
vindicated.
The unfair labor practices found in this case, if viewed in
isolation, would probably not warrant the special remedies
sought by the General Counsel. The two acts of interrogation
and the threat of plant closure were directed at one employee
and there is no evidence of widespread dissemination of these
unfair labor practices. The only unfair labor practice directed at
a group of employees was Macey’s threat of loss of benefits
which has been proven to be made at two meetings with at least
30 employees present. Thus, unlike some of the cases cited by
the General Counsel, the threats of plant closure and other ad-
verse consequences of unionization were not made at meetings
of the whole unit or in literature distributed to all employees.
While the discriminatory treatment of Mabry, the “face of the
Union,” could be expected to have a chilling effect on other
employees, a reinstatement and make-whole remedy would
normally be sufficient to remove the chill. That being said, the
unfair labor practices found here can not be considered in a
vacuum.
The Respondent has a documented history of violating the
Act, with unfair labor practices having been found after a hear-
ing and affirmed by the Board. These unfair labor practices
occurred within a year of the unfair labor practices found here.

46 Accordingly, I shall reverse my ruling and receive the proffered
exhibits, not as proof of any unfair labor practice alleged in those cases,
but for the limited purpose described here.
PENNANT FOODS CO. 473
In addition, the Respondent’s proven unfair labor practices all
occurred after it had entered into a formal settlement stipulation
which required the Respondent to read the notice to employees
and afford access to the Union similar to that requested here.
Clearly, the prior remedies, even though voluntarily adopted,
were not sufficient to prevent the Respondent from violating
the Act. Under these circumstances, something more is required
than the traditional notice posting to ensure that the Board’s
processes are not for naught.47
Accordingly, I find that the special remedies sought by the
General Counsel are appropriate for the unfair labor practices
found here and shall recommend that the Respondent read the

47 While the prior settlement agreement, with its nonadmission
clause, is not proof that the Respondent committed any unfair labor
practices, it is relevant history to consider in determining whether tradi-
tional remedies will be effective. The fact is, whether the Respondent
committed any unfair labor practice, it voluntarily agreed that it would
not violate the Act and even read the notice to employees assuring them
it would not. Then, as found here and in the prior case, it committed
unfair labor practices.
notice and provide the Union access to its employees as re-
quested by the General Counsel. See Homer D. Bronson Co.,
349 NLRB512, 515 (2007), and cases cited there. With respect
to the special access provisions of the order, these are necessary
because a third election must now be held due to objectionable
conduct which includes the unfair labor practices. These addi-
tional measures will help to ensure that employees can exercise
their right to vote in an atmosphere free of unlawful interfer-
ence.48
[Recommended Order omitted from publication.]

48 In its brief, the Charging Party has requested reconsideration of
my ruling denying its request for a bargaining order. I adhere to my
earlier ruling. In addition, even assuming the Charging Party could
demonstrate a card majority in 2001, when it filed the petition, the
unfair labor practices found here and in the prior Board decision, which
occurred in 2005 and 2006, would not be sufficient to warrant such an
extraordinary remedy. I also note that the passage of time since the
Union obtained majority support would make enforcement of any bar-
gaining order unlikely. See Homer D. Bronson Co., supra at 515.