Baptista's Bakery

BAPTISTA’S BAKERY, INC. 352 NLRB No. 72 547 Baptista’s Bakery, Inc. and Teamsters Local Union No. 344 Sales and Service Industry, affiliated with the International Brotherhood of Team- sters. Cases 30–CA–17104, 30–CA–17268, and 30–RC–6604 May 30, 2008 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On December 22, 2006, Administrative Law Judge Mark D. Rubin issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent’s excep- tions. The Respondent filed a reply brief and an answer- ing brief to the General Counsel’s cross-exceptions.1 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, and conclusions in part, to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.2 1 On April 18, 2007, the Board issued an Order granting the General Counsel’s motion to strike the Respondent’s exceptions 4 through 9. Accordingly, there are no exceptions to the independent 8(a)(1) viola- tions found by the judge, to the judge’s rejection of the Respondent’s 10(b) defense, or to the judge’s recommendation for a second election based on objectionable conduct. In addition, there are no exceptions to the judge’s dismissal of alle- gations that the Respondent violated the Act by disciplining employee Donna McCall; terminating employee Kathy Mankin; stating that the Respondent had made mistakes but was trying to change things and make them better; asking an employee for suggestions to make the company better; restoring an employee’s vacation benefit; comparing unionization to crack addiction; implying that the Respondent was engaging in surveillance; offering to disclose confidential information from an employee’s personnel file; and soliciting grievances in a March 23, 2005 letter. 2 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. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administra- tive law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The General Counsel excepts to the judge’s dismissal of an allega- tion that the Respondent violated Sec. 8(a)(1) by providing employees with free jackets in order to discourage support for the Union. We find The judge found that the Respondent violated Section 8(a)(3) and (1) by laying off five employees on February 2, 2005, in order to discourage union activity. The judge dismissed an allegation that a sixth employee, Kathi Szuszka, was also unlawfully laid off. We adopt the judge’s dismissal with respect to Szuszka, because we agree with the judge that she was not, in fact, laid off. As to the other five employees, we find that the Respon- dent proved that it would have laid them off for legiti- mate business reasons even in the absence of union activ- ity. Accordingly, we reverse the judge and dismiss the allegation that the layoffs were unlawful. I. FACTUAL BACKGROUND Since 1999, the Respondent has been engaged in pro- ducing snack products at its facility in Franklin, Wiscon- sin. The snack business is seasonal, and the Respondent experiences a downturn every winter after the Super Bowl. Until the events at issue in 2005, the Respondent had not laid off employees as a result of the seasonal downturn. Instead, during the downturn, the Respondent caught up on maintenance, reduced the number of tempo- rary workers, shut down the plant for a few days, and/or encouraged employees to take vacations. However, lay- offs for economic reasons were not unprecedented. In 2002, the Respondent was producing a product line called “Lunch Munchers” for General Mills. In Novem- ber and December 2002, when the product line was dis- continued, the Respondent permanently laid off about seven employees. A. The Respondent’s 2004 Expansion of Operations Until 2004, the Respondent primarily produced bread- sticks and bread toasts for General Mills, but the Re- spondent was not profitable. In mid-2003, the Respon- dent hired Tom Howe as president. Around the second quarter of 2004, Howe decided to expand the business by seeking a longer term contract with General Mills and by producing a broader range of products for additional cus- tomers, primarily Old Dutch and Weight Watchers, to be sold under the customers’ labels.3 Some of these prod- ucts were packaged in individual serving sizes, rather than in bulk like the General Mills products. The Re- spondent purchased new packaging machines and new it unnecessary to pass on that exception. The judge found that the Respondent violated Sec. 8(a)(1) by providing other benefits to em- ployees, and there are no exceptions to those findings. An additional violation would be cumulative and would not materially affect the remedy. We shall modify the judge’s conclusions of law and recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language. 3 The witnesses referred to these types of products as “private label” products. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548 equipment that increased its baking capacity by 50 per- cent. Because the Respondent was producing a greater variety of products, its production process became more complex. The Respondent’s production volume doubled. In July 2004, the Respondent implemented a new work schedule to accommodate its increased workload. The Respondent changed from three 8-hour shifts to four 12- hour shifts (two from 6 a.m. to 6 p.m. and two from 6 p.m. to 6 a.m.). Under the new schedule, the plant oper- ated 24 hours a day, 7 days a week. Employees worked 3 days in 1 week and 4 days the next. A memorandum to employees announcing the new schedule stated in part: “[W]e realize that continuing a 6 & 7 day operation re- quires adding more permanent full-time positions . . . . This 4-shift Rotation will continue as long as our orders support working 6–7 production days every week and as long as this schedule is effective in satisfying our cus- tomers.” The Respondent also hired new employees and some new managers to handle the increase in produc- tion.4 B. The 2005 Shift Restructuring and Layoffs As discussed in more detail in section III below, sales of the Weight Watchers and Old Dutch products fell short of expectations. By early 2005, the Respondent was also on the brink of its annual post-Super Bowl slowdown. Around the week of January 24, the Respon- dent’s management began to discuss eliminating a shift and laying off some employees. The dispute in this case centers on the Respondent’s reasons for the layoffs. Tom Mayer, the Respondent’s vice president of human resources and operating ser- vices, testified that during management discussions about the potential restructuring, President Howe referred to a “cyclical” slowdown, but also “foresaw that this would go on for quite a while.” Mayer testified that the Re- spondent had used methods other than layoffs in re- sponse to past seasonal downturns. However, Mayer also emphasized that “[w]e had a different business in the past,” that “[w]e did not have cyclical slowdowns in the past like we do now,” and that “[p]roducing private label for other customers is much different than produc- ing our own brand.” Marlenea Jackson, the Respon- dent’s quality assurance and sanitation manager, testified that both Howe and the Respondent’s vice president of sales said that “sales were falling off. Specifically 4 Before 2004, the Respondent had regularly used a small number of temporary workers, primarily to package products. Tom Mayer, the Respondent’s vice president of human resources and operating services, testified that the use of temporary workers in packaging increased in 2004 when the Respondent began its private label production. The number of temporary workers needed also became less predictable, because it depended on the particular mix of products being produced. Weight Watchers was not meeting the projected numbers that we thought that it would.” Jackson gave similar testimony when discussing an early 2005 “change of direction” in her department’s budget. She stated that “we were having some sales issues and then also the slow period of the year was coming up” (emphasis added). She recalled being told that the “Weight Watch- ers projections . . . were not where they were supposed to be” and that there was a decline in sales to Old Dutch. Ultimately, the Respondent decided to return to a 3- shift operation, with 8-hour shifts operating 5 days a week, and to lay off certain employees. Management representatives testified that once the Respondent de- cided that layoffs would be necessary, the selection of individual employees was based on performance and, in some cases, on a determination that certain positions were no longer necessary under the new shift structure. On February 2, the Respondent permanently laid off five of the six alleged discriminatees: packaging em- ployees George Ann Bohen and Lynda Starrett, bakery process operator Dennis Sobiech, sanitation employee Judy Zullner, and truck loader John Crowley.5 The Re- spondent also laid off a shift supervisor. Contemporane- ously, Howe issued a memorandum to “all shop employ- ees,” stating in relevant part: As all of you have noticed from our work activity, we are experiencing the annual post-holiday lull in orders that always affects the snack industry, something I ex- plained in my notice of July 9, 2004, when announcing our change to a 7/24 two-week rotation. This slow- down is common throughout the snack industry, and snack companies typically adjust their work schedules, reduce their work weeks, and schedule plant shut- downs. As a result of this slowdown, it is necessary that we remain flexible and also make adjustments in our work schedule to reflect our current and near-term customer demands. Our first step is to change from the 7/24 two-week rota- tion . . . to a 5/24 week with three 8-hour shifts. . . . . . . . The second step we’ve taken, and one that we regret was necessary, is the layoff of some members of our workforce to reflect our current and near-term business level and added capacity going forward. These in- volved tough decisions, we provided those people some 5 The sixth alleged discriminatee is Kathi Szuszka. As noted above, we affirm the judge’s finding that she was not laid off. BAPTISTA’S BAKERY, INC. 549 assistance to help during their transition to new oppor- tunities, and our focus was on retaining people possess- ing the skills, knowledge, flexibility, reliability and atti- tude that provide the best foundation for building for the future. [Emphasis in original.] Please do not read anything into these changes beyond it being a temporary seasonal adjustment. Our business is growing, we have made significant investment in baking and packaging equipment to foster that growth, and potential customers are excited about what Bap- tista’s [has] to offer. Thanks to everyone for all of your efforts and for your continuing flexibility. 2005 will be a great year for Baptista’s and we look forward to all of you making a significant contribution to Baptista’s growth and future prospects. Since February 2005, the Respondent has never re- turned to a four-shift operation. At some point in late 2005, the Respondent further decreased its operation to two 12-hour shifts, but it had returned to three 8-hour shifts by May 2006. The Old Dutch product line was ultimately discontinued in January 2006. C. The Union Campaign During the weeks preceding the layoffs, employees had begun meeting with the Union to discuss an organiz- ing campaign. The first contact with the Union was on January 12. On January 20 and 22, the Union held meet- ings with employees at the Union’s offices. The Union’s representative told the employees that, for the time being, they should keep the organizing drive to themselves, and tell only other employees they thought might be inter- ested. On February 7, after discussing the matter with employees, the Union mailed and faxed a letter to Howe listing the names of employees on the Union’s organiz- ing committee. The Union filed a representation petition on February 8 and an unfair labor practice charge on February 11, alleging that the layoffs violated Section 8(a)(3). The election was held on March 23. The vote was 21 for the Union and 22 against, with 3 challenged ballots, which were cast by alleged discriminatees Bohen, Szuszka, and Zullner. The Union filed objections, and the representation case and unfair labor practice case were consolidated. II. JUDGE’S DECISION AND EXCEPTIONS Applying Wright Line,6 the judge found that the Gen- eral Counsel carried his initial burden to prove that em- ployee union activity was a motivating factor in the lay- offs. The judge observed that the General Counsel was proceeding under a “mass layoff” theory: that the Re- spondent ordered the layoff to discourage union activity in general or to retaliate against the union activity of some, and therefore it was not necessary for the General Counsel to prove union activity or employer knowledge as to each of the alleged discriminatees. See Davis Su- permarkets, 306 NLRB 426 (1992), enfd. in relevant part 2 F.3d 1162 (D.C. Cir. 1993), cert. denied 511 U.S. 1003 (1994). The judge found that employees were engaging in union activity beginning in mid-January, that the Re- spondent had general knowledge of that activity by Janu- ary 26, and that the Respondent’s 8(a)(1) violations demonstrated animus. The judge then found that the Respondent failed to prove that it would have laid off the employees for le- gitimate reasons regardless of any union activity. The judge reasoned that the evidence did not establish that the layoffs were based on anything other than the usual seasonal downturn, during which, in prior years, the Re- spondent had not resorted to layoffs. The judge further found that the record contained “a paucity of contempo- raneous documents” reflecting the layoff decision and that Howe’s February 2 memo stated that the layoffs were due to the “annual post-holiday lull.” The judge discussed, but discredited, Howe’s testimony that the layoffs were the result of a decline in Weight Watchers and Old Dutch business.7 Finally, the judge noted that the Respondent continued to use some temporary em- ployees after the layoffs. The judge concluded that the Respondent violated Section 8(a)(3) and (1) by laying off Bohen, Crowley, Sobiech, Starrett, and Zullner.8 6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel must prove that antiunion animus was a substantial or motivating factor in the employment ac- tion. If the General Counsel makes the required initial showing, the burden then shifts to the employer to prove by a preponderance of the evidence that it would have taken the same action even in the absence of employee union activity. See Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), affd. 127 F.3d 34 (5th Cir. 1997). 7 As discussed below, however, the judge declined to address other testimony concerning the poor performance of those products. 8 Based on his findings concerning the layoffs, the judge overruled the challenges to Bohen’s and Zullner’s ballots, and sustained the chal- lenge to Szuszka’s. He sustained several of the Union’s objections and ordered a second election, if necessary, after counting Bohen’s and Zullner’s ballots. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550 The Respondent excepts to the judge’s conclusion that the layoffs were unlawful. The Respondent contends that the General Counsel failed to prove that the Respon- dent had knowledge of any employee union activity at the time the layoff decision was made. The Respondent further argues that, even assuming it had such knowl- edge, it would have implemented the layoffs for eco- nomic reasons regardless of union activity. III. ANALYSIS We find merit in the latter exception. Assuming ar- guendo that the General Counsel met his initial burden to prove that the layoffs were unlawfully motivated, we find that the Respondent proved that it would have laid off the employees for legitimate business reasons regard- less of any union activity. We therefore dismiss the alle- gation that the layoffs violated Section 8(a)(3) and (1). Although the Respondent had weathered past seasonal slowdowns without layoffs, this was the first year that the Respondent had entered the slow season operating four shifts with a recently increased work force. These operational changes had been made largely to accommo- date the anticipated Old Dutch and Weight Watchers business. As Mayer testified, the Respondent “had a different business in the past,” before it shifted its focus to private label production. Mayer also testified that Howe thought the shift restructuring was necessary be- cause of a “cyclical slowdown,” but one that would go on “for quite a while”—thereby suggesting something beyond the norm. Jackson recalled being told that the Respondent was having “sales issues” and that “Weight Watchers was not meeting the projected numbers that we thought that it would.” The judge did not discuss this part of Jackson’s testimony, although elsewhere in his decision he commented favorably on her demeanor. In addition, the Respondent introduced documents to support its contentions that sales of Weight Watchers and Old Dutch products were faltering before the layoffs and continued to falter after the layoffs. Respondent’s Ex- hibit 143, reflecting Old Dutch sales from April to De- cember 2004, showed that actual sales were well below planned sales for 6 of the 7 months from June through December. Respondent’s Exhibit 144, a chart created on a monthly basis by the Respondent’s financial depart- ment, compared actual sales and planned sales of the Respondent’s products from January through May 2005. The exhibit showed that in terms of dollars, planned sales of the Weight Watchers and Old Dutch products ac- counted for more than 50 percent of the Respondent’s overall planned sales. Therefore, a decline in demand for those products would be significant. Furthermore, ac- cording to the exhibit, dollar sales of Old Dutch products were below the planned levels in all months but January. Dollar sales of Weight Watchers products were below the planned levels in all months but March, and dropped off precipitously in April and May.9 The foregoing evi- dence is consistent with the Respondent’s argument that it was already experiencing a decline in those products at the time of the layoffs and that it anticipated a further decline in the coming months.10 Thus, although the judge did not credit Howe’s testi- mony about the layoff decision, that testimony was not the only evidence supporting the Respondent’s defense. We find that the testimony of other management repre- sentatives, combined with the documentary evidence, supports the Respondent’s argument that its private label business was suffering, that the Respondent’s situation heading into the 2005 seasonal slowdown was not com- parable to the prior years in which layoffs had not been necessary, and that the Respondent would have laid off the employees regardless of any union activity.11 The judge reached a contrary conclusion, but on bal- ance, we find his reasoning unpersuasive. First, we dis- agree with his reliance on what he called the absence of an “extraordinary crisis period” in early 2005. With re- spect to the Old Dutch product line, the judge reasoned that the gap between actual and planned sales was smaller in November and December than it had been in October, and that dollar sales in January were equal to the plan. With respect to the Weight Watchers product line, the judge noted that sales in March exceeded the plan. As explained above, however, the documentary evidence shows shortfalls in Old Dutch during most months prior to the layoffs and a shortfall in Weight Watchers in January, and there is unrefuted testimony that sales of the Weight Watchers products were below expectations at the time of the layoffs. At the same time, the Respondent was operating with an increased work 9 The judge declined to rely on R. Exh. 144, because its production figures for January 2005 are different from those in a position statement submitted by the Respondent. However, R. Exh. 144 is a regularly maintained business record, it is considerably more detailed than the position statement, and it contains data for February through May as well as for January. The judge did not find, and the evidence does not suggest, that R. Exh. 144 was fabricated or that the data is incorrect. In our view, the inconsistency in the January figures does not warrant disregarding R. Exh. 144. 10 Actual events apparently bore out the Respondent’s concerns. Employee Sharon Karboski testified that, in a meeting in 2005, Howe said that the Respondent had “much less Weight Watchers business than it had anticipated.” Former employee Kathy Mankin testified that the Respondent “ran” (i.e., produced) Weight Watchers products much less often in 2005 than in 2004. The Respondent changed from three shifts to two in late 2005, although it had returned to three shifts by May 2006. 11 Moreover, consistent with the Respondent’s argument that its business would no longer support four shifts, the Respondent laid off a shift supervisor along with the five employees. BAPTISTA’S BAKERY, INC. 551 force and an extra shift. In the circumstances, we decline to find that the downturn in business was not significant enough to justify layoffs.12 Second, we do not agree with the judge’s reliance on the February 2 memorandum to employees, which stated that the layoffs were a “temporary seasonal adjustment” in response to the “post-holiday lull.” In our view, the memo as a whole is not consistent with the General Counsel’s theory that the Respondent implemented the layoffs to send a message to employees discouraging union activity. The overall tone of the memo was reas- suring and nonthreatening; it stated that “2005 will be a great year” and “we look forward to all of you making a significant contribution.” The memorandum did not mention union activity or otherwise imply a connection between union activity and the layoffs. Rather, by em- phasizing that employees should not “read anything into” the layoff decision, the memorandum took pains to reas- sure the remaining employees that they should not fear for their own jobs.13 Third, the judge’s emphasis on the “paucity” of other documents memorializing the layoff decision is mis- placed. The Respondent was a relatively small em- ployer. Jackson, the Respondent’s quality assurance and sanitation manager, testified that no one was tasked with taking notes at management meetings, that there gener- ally were no written agendas or minutes, and that fol- lowup was usually in person rather than by e-mail. Un- der these circumstances, we do not find the absence of documentation critical. Finally, we disagree with the judge’s statement that the continued use of temporary workers after the layoffs “casts additional doubt” on the Respondent’s defense. Temporary workers were used primarily in two areas: packaging and sanitation. With respect to packaging, the evidence supports the Respondent’s explanation that the need for additional workers was irregular, because the amount of packaging work varied depending on whether the particular products coming off the line were to be 12 See Gem Urethane Corp., 284 NLRB 1349, 1350 (1987) (“That the difference between anticipated and actual orders narrowed . . . in no way indicates that a layoff would be precipitous. . . . Whether proce- dures other than a layoff might have been more or equally effective in remedying the Respondent’s economic loss is not a matter the Board is empowered to decide.”). 13 The memorandum also stated that the Respondent’s “focus was on retaining people” with, among other things, the “attitude” that would “provide the best foundation for building for the future.” Although the General Counsel argues that “attitude” is a veiled reference to union activity, we find that the single reference to “attitude” as one of many qualities the Respondent was seeking in its employees did not change the overall tenor of the memo. We also note that the General Counsel expressly disclaimed any argument that the laid-off employees were selected for layoff because they had a prounion “attitude.” packaged in bulk or in small individual bags. Therefore, the use of temporary workers did not necessarily reflect a consistent need for additional permanent employees. With respect to sanitation, Jackson testified that she needed temporary workers during the first half of 2005 because she was preparing for a facility audit. Although the Respondent, after the audit, continued to use varying numbers of temporary workers in sanitation for an ag- gregate of 56 or more hours per week, it is not clear how those hours were allocated among the workers or whether the Respondent had a consistent need for regular employees. Furthermore, only one of the alleged dis- criminatees was a sanitation worker, and Jackson testi- fied that she was a poor performer who would have been terminated eventually if she had not been laid off. Under all of these circumstances, we find that the Respondent’s use of temporary workers does not undercut its defense. In sum, the Respondent’s situation in early 2005 was not comparable to prior seasonal downturns in which the Respondent had found layoffs unnecessary. The Re- spondent was entering the slow season with an extra shift and an increased work force. Those changes had been made primarily to accommodate the anticipated demand for Weight Watchers and Old Dutch products. The Re- spondent’s July 2004 memo announcing the change to four shifts emphasized that the change would continue only “as long as our orders support” it. In February 2005, the Respondent concluded that its orders did not support maintaining that schedule. The Respondent therefore returned to the three-shift operation it had run prior to July 2004, laying off five employees and a shift supervisor. We find that the Respondent has carried its burden to prove that it would have laid off the employees for legitimate business reasons regardless of employee union activity. Accordingly, we dismiss the allegation that the layoffs violated Section 8(a)(3) and (1).14 AMENDED CONCLUSIONS OF LAW 1. Substitute the following for the judge’s Conclusion of Law 9: “9. Employees George Ann Bohen, Kathi Szuszka, and Judy Zullner, whose ballots were challenged at the elec- tion herein, were not eligible voters.” 2. Delete the judge’s Conclusion of Law 3 and renum- ber the subsequent paragraphs. 14 Having found that none of the three challenged voters (Bohen, Szuszka, and Zullner) was laid off unlawfully, we sustain the chal- lenges to all three ballots. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552 ORDER The National Labor Relations Board orders that the Respondent, Baptista’s Bakery, Inc., Franklin, Wiscon- sin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting and offering to remedy employee griev- ances in order to discourage support for a union. (b) Promising improved benefits in order to discourage support for a union. (c) Telling employees that if they choose a union to represent them bargaining would start from zero. (d) Threatening employees that they would lose bene- fits or the plant would close if they choose a union to represent them. (e) Telling employees that the reason they did not re- ceive a pay raise was because of a union’s organizational campaign. (f) Telling employees that the Respondent could not grow with a union or that choosing a union would wreck the Respondent’s progress, in order to discourage support of a union. (g) Implying that employees who do not support a un- ion or complain about their terms and conditions of em- ployment are good employees by telling employees that the Respondent has good workers who do not complain or that the Respondent wants to move forward with em- ployees with good attitudes. (h) Providing employees with benefits including, but not limited to, free baseball tickets, food, restaurant meals, or employee-of-the-year awards with prizes, in order to discourage support of a union. (i) Distributing surveys for employees to complete, which solicit grievances with an implied promise of reso- lution, in order to discourage support of a union. (j) Posting, restating, or repromulgating the Respon- dent’s no-solicitation, no-distribution rule in response to a union organizational campaign. (k) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its Franklin, Wisconsin facility copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s authorized repre- 15 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.” sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 18, 2005. (b) 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 with respect to the election held in Case 30–RC–6604 that the election shall be set aside and the case remanded to the Regional Director for Region 30 for the purpose of conducting a rerun election, as set forth below. The election notice shall contain Lufkin16 language. The challenges to the ballots of George Ann Bohen, Kathi Szuszka, and Judy Zullner are sustained. Consistent with the findings herein, the objec- tions lettered E, G, and I, are overruled, and the Union’s objection and objections lettered A, B, C, D, F, and H are sustained. IT IS FURTHER ORDERED that Case 30–RC–6604 be severed from the consolidated unfair labor practice cases, and be remanded to the Regional Director for Region 30 for handling consistent with this Order, including the conducting of a second election, as set forth below. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. [Direction of Second Election omitted from publica- tion.] 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. 16 Lufkin Rule Co., 147 NLRB 341 (1964). BAPTISTA’S BAKERY, INC. 553 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 solicit your grievances and offer to rem- edy them, by survey or otherwise, in order to discourage your support of a union. WE WILL NOT promise improved benefits in order to discourage your support of a union. WE WILL NOT tell you that if you choose a union, bar- gaining will start at zero. WE WILL NOT threaten that you will lose benefits or that we will close the plant if you choose a union. WE WILL NOT tell you that the reason you did not re- ceive a pay raise is because of a union organizational campaign. WE WILL NOT tell you, or imply, that the Company cannot grow if you choose a union or that choosing a union would wreck the Company’s progress. WE WILL NOT imply that employees who do not sup- port a union or complain about their terms and conditions of employment are good employees by telling you that we have good workers who don’t complain or that the Company wants to move forward with employees with good attitudes. WE WILL NOT provide you with benefits including, but not limited to, a free Major League Baseball outing in- cluding food, restaurant meals, or an employee-of-the- year award and prize, in order to discourage you from supporting a union. WE WILL NOT distribute surveys for employees to complete, which solicit grievances with an implied prom- ise of resolution. WE WILL NOT post, restate, or repromulgate our no- solicitation, no-distribution rule in response to a union organizational campaign. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. BAPTISTA’S BAKERY, INC. Angela B. Jaenke, Esq. and Paul Bosanac, Esq., for the General Counsel. John E. Murray, Esq., of Milwaukee, Wisconsin, for the Re- spondent. Timothy C. Hall, Esq., of Milwaukee, Wisconsin, for the Charging Party/Union. DECISION STATEMENT OF THE CASE MARK D. RUBIN, Administrative Law Judge. These cases were tried in Milwaukee, Wisconsin, on various dates in Febru- ary, April, and May 2006, based on charges filed in 2005 by Teamsters Local Union No. 344 Sales and Service Industry, affiliated with the International Brotherhood of Teamsters1 (the Union) on February 11 and August 15, and a representation petition filed by the Union on February 8, 2005. Both charges were amended on various dates. The Acting Regional Director’s amended consolidated com- plaint dated February 22, 2006, alleges that Baptista’s Bakery, Inc.2 (the Respondent) violated Section 8(a)(3) of the Act by permanently laying off six employees,3 discharging employee Kathy Mankin, and disciplining employee Donna McCall. The complaint further alleges that the Respondent violated Section 8(a)(1) of the Act by the following actions related to the union organizing activities of its employees: restatement or promulga- tion of its no-solicitation rule; solicitation of; and positive re- sponse to; grievances and promise of benefits; threats of loss of benefits; informing employees that everything would “start from zero;” that the Employer could not grow if the Union were successful; and that the organizing campaign was preventing an employee from receiving increased pay; threats of plant clo- sure; informing employees that it wanted employees with “good attitudes” and employees who “don’t cause trouble or open their mouths” to move forward with, informing employees that the Respondent was finally making money and that this would be ruined “by bringing in a third party;” offering to dis- close and disclosing confidential information about employees; implying surveillance of union activity; comparing the Union to a “crack addict;” and granting benefits including a major league baseball outing; free jackets; an employee-of-the-year award; and complimentary dinners at area restaurants. The Respondent maintains variously, that certain of the al- leged actions are precluded by Section 10(b), that others were permissible under the National Labor Relations Act (the Act), and that others did not occur or were, essentially, taken out of context. The Respondent further contends that the alleged lay- offs were unrelated to union organizing activities, and were, instead, generated by a slowdown of the Respondent’s busi- ness, and that the discharge of Kathy Mankin and discipline of Donna McCall were not violative of Section 8(a)(3). The parties also litigated election objections filed by the Un- ion and challenges filed by the Respondent, which are essen- tially parallel to the unfair labor practice allegations. The Re- spondent challenged the ballots of George Ann Bohen, Judy Zullner, and Kathleen Szuszka, all of whom were alleged in the complaint to be permanently laid off in violation of Section 8(a)(3). In its brief, the Union maintains that the Respondent’s challenges should be overruled and the votes counted, that if the Union then prevails it should be certified, and that if it does 1 Charging Party or the Union. 2 Respondent or the Employer. 3 Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Star- rett, Judy Zullner, and Kathi Szuszka. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554 not or if the challenges are upheld, a rerun election should be ordered pursuant to its objections. At the trial, the parties were afforded a full opportunity to examine and to cross-examine witnesses, to adduce competent, relevant, and material evidence, to argue their positions orally, and to file posttrial briefs. Based on the entire record, including my observation of the witnesses and their demeanor, and after considering the oral argument and brief of the Respondent, and the briefs of the counsel for the General Counsel and the Union, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, maintains an office and place of business in Franklin, Wisconsin,4 where it has been engaged in the snack food manufacturing business. During the calendar year 2005, in conducting the business, the Respondent pur- chased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. It is admitted, and I find, that the Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION I find, and it is admitted, that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Overview The Respondent operates a bakery/factory in the Milwaukee, Wisconsin metropolitan area at which it manufactures baked snack foods. Sometime in January 2005,5 an employee con- tacted the Union, and an organization drive was put into mo- tion. On February 2, the Respondent permanently laid off six unit employees. The General Counsel maintains, and the Re- spondent denies, that the Respondent had learned of the union activity prior to the layoff decision. The Union filed a repre- sentation petition with the Board on February 8, and both the Respondent and the Union engaged in an election campaign that culminated in a Board-conducted election on March 23. At the election, of 44 eligible voters, 21 cast ballots for the Union, 22 against, and the Respondent challenged three voters, suffi- cient to affect the results of the election. The Union filed ob- jections to the conduct of the election on March 29. The al- leged unfair labor practices took place both before and subse- quent to the election. B. The Respondent The Respondent’s predecessor company, Gardetto’s, along with one of its two bakery manufacturing facilities, was sold to General Mills in 1999. Nan Gardetto, Respondent’s CEO, and identified in the record as the Respondent’s owner, then formed Baptista’s in August 1999, and located its operations at the 4 The only facility involved here. 5 All dates refer to 2005, unless otherwise indicated. Franklin facility involved here, the Gardetto’s facility that was not included in the General Mills transaction. Gardetto’s pro- duced snack mixes at its two plants, with the Franklin plant producing bread stick pieces that were part of the snack mixes. After the Respondent began operations, the Franklin plant util- ized two ovens to produce breadstick pieces for the General Mills snack mix, which were packaged in large cardboard totes that held up to 700 pounds, and also produced breadsticks and toasts which were packaged in trays. Respondent is managed by its president, Tom Howe, and CFO Jon Becker. Reporting to Howe, among other managers, are Vice President, Human Resources, and Operating Services Thomas Mayer, and Man- ager of Quality Assurance and Sanitation Marlenea Jackson. At the time the events discussed herein occurred, Brent Lepak was the vice president,of manufacturing. Howe was hired by the Respondent in mid-2003. In mid- 2004, he decided to change the direction of the business by signing a 3-year contract to supply General Mills and by seek- ing new business involving baking product, including pretzels and other snack foods, for major customers including “Old Dutch” and “Weight Watchers,” to be sold under the cus- tomer’s labels. In order to facilitate this new business plan, the Respondent purchased new equipment including a large-scale oven,6 increasing its baking capacity by 50 percent, and new packaging machines. As a result, by July 2004, the Respon- dent’s production volume increased approximately twofold. In July 2004, the Respondent implemented a new work schedule to accommodate the increased workload, which changed its operation from a three-shift daily schedule, to four shifts, operating 24 hours a day, either 6 or 7 days a week. To man the new shift structure, the Respondent hired new employ- ees in July through September 2004, many of the new hires coming from the newly defunct American Italian Pasta Com- pany in nearby Kenosha, Wisconsin.7 Much of the testimony and evidence dealt with the issue of the state of the Respondent’s business at the time it decided on and implemented the permanent layoffs in early 2005. The Respondent’s evidence consisted mainly of testimony by its managers to the effect that the Respondent’s business, and the snack food business in general, is seasonally cyclical and that, further, due to poor sales, the Old Dutch and Weight Watchers’ business had never reached expected goals, with the Respon- dent experiencing and expecting reductions in the amount of product that needed to be produced for these two customers. This issue is discussed, in detail, below. C. The Layoffs, Union Organizational Activity, and Respondent’s Knowledge Paul Brzezinski, an employee of the Respondent, first con- tacted the Union on January 12, which resulted in a meeting on 6 Added to the then current two ovens. 7 Various witnesses described tensions between the existing Bap- tista’s employees, and the newly hired “pasta employees” or “pasta people,” as they were frequently referred to in the record. From these accounts, I find that these tensions were at least partially caused by the then current employees’ resentment over the Respondent’s decision to hire and/or promote some of these new employees to lead, supervisory, and managerial levels. BAPTISTA’S BAKERY, INC. 555 January 17 at the Union’s offices in Milwaukee with Business Agent/Organizer James Dillon. Brzezinski and Dillon agreed to arrange two meetings for Respondent’s employees and Dil- lon at the Union’s offices on January 20 and 22. Brzezinski, who was on medical leave at the time,8 telephoned various employees to inform them of the union meetings. Dillon con- ducted these two meetings, and discussed with the employees present what was entailed in organizing a union, including the necessity of obtaining signed authorization cards and forming an organizing committee. At these meetings, Dillon told the employees that for the time being they should keep the fact of the organizing drive to themselves and to other employees they thought would be interested. The Respondent announced the permanent layoffs of the al- leged discriminatees, and the restructuring of its shift schedule on Wednesday, February 2. The February 2 memo from Re- spondent’s president, Howe, to “all shop employees” began with the following two paragraphs: As all of you have noticed from our work activity, we are experiencing the annual post-holiday lull in orders that always affects the snack industry, something I explained in my notice of July 9, 2004, when announcing our change to a 7/24 two-week rotation. This slowdown is common throughout the snack industry, and snack companies typi- cally adjust their work schedules, reduce their work weeks, and schedule plant shutdowns. As a result of this slowdown, it is necessary that we remain flexible and also make adjustments in our work schedule to reflect our current and near-term customer demands. The memo from Howe also, in pertinent part, stated as follows: The second step we’ve taken, and one we regret was neces- sary, is the layoff of some members of our workforce to re- flect our current and near-term business level and added ca- pacity going forward. These involved tough decisions, we provided those people some assistance to help during their transition to new opportunities, and our focus was on retain- ing people possessing the skills, knowledge, flexibility, reli- ability and attitude that provide the best foundation for build- ing for the future. [Emphasis contained in original.] Finally, the memo stated as follows, in pertinent part: Please do not read anything into these changes beyond it be- ing a temporary seasonal adjustment. Our business is grow- ing, we have made significant investment in baking and pack- aging equipment to foster that growth, and potential custom- ers are excited about what Baptista’s to [sic] offer. During their shifts on February 2, the Respondent laid off five of the six employees who are alleged in the complaint as permanent layoffs in violation of Section 8(a)(3): Judy Zullner, Dennis Sobiech, John Crowley, Lynda Starrett, and George Ann Bohen. They were informed of their layoffs, and escorted out of the plant. The sixth alleged discriminatee named in the 8 He eventually returned to work 6 days before the representation election. complaint as being permanently laid off on February 2, Kathi Szuszka, was not, in fact, laid off by the Respondent. Her situation is discussed below. Dillon held another organizational meeting for the Respon- dent’s employees on February 5. At this meeting, Dillon dis- cussed forming an organizing committee and opined that the easiest way to protect union supporters was to tell the Respon- dent their names. On February 7, the Union mailed and faxed a letter to the Respondent’s president, Howe, notifying the Re- spondent of the names of the employee members of the Union’s organizing committee, including Bohen, Zullner, and Szuszka. The Respondent’s vice president, Mayer, received the Un- ion’s fax the evening of February 7. Mayer called Howe, Gardetto, and the Respondent’s legal counsel, and notified them of the receipt of the union fax. Mayer, Gardetto, and Howe met the following day to discuss the fax, and Mayer gave Gardetto and Howe copies. They agreed not to discuss the union organizing until they had spoken to legal counsel, but to meet the following day, February 9, with the management group including the shift managers and supervisors. On February 9, Mayer, Gardetto, Howe, Vice President of Manufacturing Brent Lepak, Director of Engineering Gary Olson, Maintenance Supervisor Jeff Sertich, and Manager Rus- sell Sparks met to discuss the developments. Mayer told the group that he had received a fax two evenings earlier regarding an organizing committee for the Union. Gary Olson responded that weeks before, he heard Brzezinski say that “we ought to get a union.” Olson said he thought it had been a “passing remark.” Sertich said that maintenance mechanic Terry Cantwell had made a comment about a union to him weeks earlier as well, and that Sertich had reported the remark to Lepak within a day or two of hearing the comment. At the meeting, Lepak acknowledged that Sertich had so informed him a couple of weeks earlier.9 Brzezinski’s comment to Olson concerning “we ought to get a union” occurred at a gathering about January 26, or earlier in January 10 for an employee leaving the Respondent’s employ (unrelated to the issues in this case), at a Franklin, Wisconsin 9 My findings as to what occurred at this meeting are based on the credited testimony of Mayer, and the admissions in Respondent’s posi- tion statement submitted to the Region during the investigation and introduced as an exhibit. As to the position statement, see Dobbs Inter- national Services, 335 NLRB 972 (2001). 10 I find that this conversation occurred about January 26 based on the testimony of Mayer to the effect that Olson admitted at the February 9 management meeting that the conversation had occurred weeks ear- lier, the admission of the Respondent in its counsel’s position statement to the Region that the Olson conversation with Brzezinski had occurred “two weeks earlier,” and the testimony of Brzezinski that the conversa- tion probably occurred in January, but he did not know the exact date other than it was after January 17. Respondent called Olson as a wit- ness, but Olson did not testify as to the Brzezinski-Olson bar conversa- tion, notwithstanding a claim to the contrary in the Respondent’s brief. Olson’s testimony that at the time of the meeting, he believed he was unaware that the “Teamsters were interested in an organizing campaign at Baptista’s,” may simply reflect that Brzezinski mentioned a union to Olson, but nothing about the Teamsters specifically. My finding of fact as to the contents of the conversation reflects Brzezinski’s credible and unchallenged testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556 bar. Brzezinski began talking about a union with those present, including Olson. At some point Olson and Brzezinski had a conversation while playing pool. Olson commented that he thought, “it’s a good thing that—what you are doing.” Brzez- inski responded that he also thought it was good, that he “don’t have nothing to lose anyways.” Kathi Szuszka Szuszka was employed as one of four QA techs,11 each one assigned to one of the then four shifts. Szuszka worked on the third shift. Quality Assurance Manager Marlenea Jackson and Vice President Lepak met with Szuszka the evening of Febru- ary 2. Jackson told Szuszka that she was a good worker and the Respondent was not going to let her go, but a shift was being eliminated so Jackson wanted her to work on the first shift as a sanitation specialist. Szuszka responded that she preferred to work on the third shift. Jackson said that if the Respondent returned to a four-shift schedule, Szuszka would be the mostly likely candidate to move into that position, but that she was being assigned to the first shift to receive more training so as to be better prepared to return to a QA tech position in the fu- ture.12 Jackson told Szuszka that she hoped that being assigned to the first shift wouldn’t interfere “with her part-time job,” apparently a reference to Jackson’s belief that Szuszka had a part-time job elsewhere. Szuszka said it would be no problem, but did not directly respond to Jackson’s comment that she had a part-time job elsewhere. Szuszka testified that she, in fact, had no part-time job elsewhere. Lepak suggested that it was possible that maybe the Respondent could move her to second- shift packaging if there was an opening there. The meeting ended with Lepak saying that he would see if “someone had dropped out or something else that was available.”13 When Szuszka reported to work on February 3, she learned she was not on the schedule for the following week. She went to Mayer’s office and the two spoke. Szuszka told Mayer that 11 Szuszka, Leslie Fintak, Sharon Cassel, and Judy Rautio. 12 Jackson credibly testified that in the past she had perceived that Szuszka had some performance related problems related to the QA tech position, and that additional training would be necessary. 13 My findings here are based on the testimony of both Jackson and Szuzska. Lepak did not testify as to this conversation. As noted else- where here, both Jackson and Szuzska demonstrated by their demeanor an intent to truthfully answer questions of counsel for both sides. On the other hand, this single conversation took place some time before the trial, and recollections are affected by the passing of time. Jackson testified that, in effect, Szuzska admitted that a second job would cause her problems moving to the first shift. Szuzska testified that she did not have a second job, that she didn’t tell Jackson she had a second job, and it was Jackson who brought up the subject. On the other hand, Szuzska admits that when Jackson brought up the subject, she didn’t affirma- tively tell her that she had no second job. I find that while Szuzska did not affirmatively tell Jackson she did not have a second job, she left Jackson with that impression by not denying such. I further find that no matter the exact words used by each the meeting ended with Jackson under the impression that Szuszka would not accept a transfer to first shift and that Lepak would see if there was an opening on another shift more acceptable to Szuzska, but that if there was no such opening there would be nothing for Szuzska. Szuzska left the meeting under the impression that she had expressed opposition to the first shift, but had closed no doors. she was not on the schedule for the following week. Mayer responded that she had refused a job. Szuszka said that Lepak was going to get back to her. Mayer again responded that she had refused a job. There was additional discussion, and then Mayer asked her if she was going to finish her shift. Szuszka said, “No.” Mayer asked for her employee badge and then escorted her out of the plant. D. The Election Campaign: Captive Audience Speeches/Meetings14 1. The Nan Gardetto speech The Union filed its representation petition with the Board on February 8. On February 18, Nan Gardetto spoke to all unit employees at a captive audience meeting held on the Respon- dent’s premises. Gardetto used a prepared outline of points she wanted to communicate to the employees, but departed from the outline occasionally.15 Gardetto told the assembled em- ployees that she felt embarrassed; that she felt shame that she had let the employees down, and that she hadn’t done a good enough job communicating with them. She said she cared a lot for her employees, “and because of my situation at home16—I really was feeling like I wasn’t enough.” She told the employ- ees that she “felt very hurt and abandoned when she received the letter” from the Union, and expressed to the employees her thought that “that’s exactly how my employees must have felt” about her lack of communication with them. Gardetto told the employees that her accessibility and communication with them would be getting better and that her door was always open if they had any questions or concerns. Gardetto further told employees at the meeting that she wanted to correct any behavior that may have caused the em- ployees to feel unappreciated, and to correct any feelings of fear, to speak out by creating a new culture based on open communication, problem solving, and effective teamwork and trust. She said that the union organizing attempt was a “wake- up call,” that she hoped she could discover “where the discon- nect and hurts occurred” and to make changes needed to con- tinue a strong family business, and that Baptista’s “was not taking the time to say thank you enough.” She informed the employees that she hoped she would be able to continue going through the year addressing all their needs, the needs of cus- tomers, and the need for profitability without the involvement 14 Both the counsels for the General Counsel and the counsel for the Respondent used the term “captive audience speech” in their briefs to describe speeches given by various management representatives to assembled groups of employees during the course of the union cam- paign. The dates of some of these captive audience speeches and the order in which they occurred is not clear from the record, except that they all occurred during the period beginning with the Gardetto Febru- ary 18 speech through about March 23. 15 Much of my findings as to what Gardetto said at the meeting are based on Gardetto’s own testimony. Gardetto said she could not re- member what she said “verbatim,” but could remember the “gist.” I took Gardetto’s “gist” comment to apply not just to the specific ques- tions of counsel, but to her testimony as to her speech in general, unless she testified to the contrary. 16 Gardetto testified that her time had been occupied dealing with her husband’s illness. BAPTISTA’S BAKERY, INC. 557 of a third party, that she was committed to having Tom Mayer focus on attending to employees’ needs again, and committed to creating opportunities for “collaboration and communication on goals,” and celebrating employee successes. She also told employees that she was human and had made mistakes but wanted employees to come to her so she could fix them, that she was not too proud to hear what they needed and to make the changes that they needed, that she was going to be more avail- able in the plant and more conscious and aware of what was going on, and would actively participate in ensuring that the changes needed would happen.17 2. The Brett Lepak speech Brett Lepak, the Respondent’s vice president of operations during material times,18 gave a captive audience speech to em- ployees during the course of the union election campaign. De- spite the testimony of five witnesses, including Lepak, the re- cord does not establish the exact date of the speech. Further, neither Lepak nor the other witnesses could definitively estab- lish whether Lepak gave one speech to assembled employees or similar speeches to assembled groups on each shift, although Lepak testified, “I believe it was shift by shift.” I, thus, make no finding as to the exact date of the speech, other than it was during the course of the union election campaign, nor as to whether it was one speech or similar speeches to each shift. In his captive audience speech(es), Lepak told the assembled employees that Baptista’s had made mistakes but wanted to do better,19 that the Company was doing well and they were not headed towards more layoffs, that he didn’t care whether the employees had a union or not but that the Company couldn’t grow with a union, that Baptista’s wanted to move ahead peo- ple with good attitudes, that employees shouldn’t forget to vote, and that whether an employee voted “yes” or “no” it wouldn’t be held against him/her. Employee Sharon Cassel asked Lepak about why employee Joe Carvalho had his lead position and pay taken away. There is no evidence as to Lepak’s answer, if any. Employee Leslie Fintak asked Lepak about employee Dennis Sobiech’s layoff. Lepak responded that a mistake made by Sobiech had cost the Company $20,000. Lepak also said 17 One employee present for Gardetto’s speech, Joe Carvalho, testi- fied that Gardetto said that people who were not happy should leave the company. No other witness for the General Counsel so testified and, indeed employee Leslie Fintak testified that Gardetto did not make the comments testified to by Carvalho and that, further, such comments would be out of character for her. In their brief, counsels for the Gen- eral Counsel do not mention or rely on Carvalho’s testimony as to the alleged comment by Gardetto. On balance, I do not credit Carvalho’s recollection of this alleged comment by Gardetto. 18 Lepak voluntarily left the Respondent’s employ for another job in February 2006. 19 In their brief, counsels for the General Counsel assert that this statement constitutes solicitation of grievances and promise of a bene- fit, but concede that the statement was not alleged as a violation in the amended consolidated complaint introduced during the hearing. Inas- much as the statement is not alleged as a violation, nor was there an attempt to amend the complaint to add the allegation, and in view of my findings herein which make any findings as to the statement redundant, I have not made any findings herein as to whether, in fact, Lepak’s statement was a solicitation of grievances or promise of benefits. that the Company wanted to have midyear reviews for all em- ployees and to have raises in June.20 3. The Tom Howe speech Respondent’s president, Tom Howe, conducted 30-minute captive audience speeches with each of three shifts on March 17.21 Howe talked to the assembled employees about the state of the Respondent’s business including: that at one point the Respondent had been ready to close the doors; that the Respon- dent’s Weight Watchers business had not done well in the mar- ketplace; that the Company had made a substantial capital in- vestment in pretzel baking and packaging equipment; that sales had now grown from 5 million to 9–10 million; that the Re- spondent was committed to find new products and customers to grow the business; that the Respondent was committed to make the business work by better training for and communication with its employees including using quarterly team meetings to share the state of the business; that he didn’t want the Union to come in and that he and Nan (Gardetto) were working hard on changing things; that he was asking the employees to support the direction the Respondent was going in; that they did not need union representation in order to move forward and that union representation could become a “hurdle” in that the Re- 20 In finding that this is what Lepak said, I generally credit the testi- mony, except as set forth to the contrary, of all five witnesses who testified as to the captive audience meeting(s), each of whom answered questions forthrightly and, generally, without hesitation on direct and cross-examination, and demonstrating an intent to honestly answer, rather than avoid, questions: Manager Lepak, and employees Mankin, Karboski, Fintak, and Mang. Of course, the event testified to occurred over a year prior to the testimony and not all of the recollections were equally strong. Lepak, for one, said, in effect, he was more comfort- able testifying as to the “gist” of conversations, and his memory ap- peared somewhat hazy as to certain questions. For example, Respon- dent’s counsel asked whether he made any comments that “specifically referenced the union or organizing campaign?” Lepak began his an- swer, “Nothing that I can think of specifically.” The Respondent’s counsel asked Lepak whether he recalled telling employees that if the Union won the election, the company could not grow. Lepak answered, “No,” and thus not denying that he said it, but testifying that he could not recall saying it. I, thus, chose to credit the specific testimony of Mankin and Mang to the effect that Lepak said the Company couldn’t grow with a union. And while there was no other supporting testimony, I chose to credit Mankin’s specific testimony that Lepak said words to the effect that the Company wanted to have reviews in midyear for all employees to have raises in June. Lepak was not asked about this alleged statement and, thus, did not deny it. However, the General Counsel has not alleged this as a violation. Thus, and because a finding of a violation would be redundant in view of my other conclusions herein, I do not conclude that Lepak’s comment as to midyear reviews and raises violated the Act. 21 An exhibit, a memo from Tom Mayer to “All Shop Employees,” established the date of the speeches. In addition to Howe, General Counsel witnesses Sharon Karboski, Sharon Cassel, and Rex Mang testified as to the content of Howe’s captive audience speeches. Inas- much as the testimony of the witnesses does not differentiate between the speeches given to each shift and in considering the overall sense of Howe’s testimony, I find that essentially the same words were used during each speech. Both Cassel and Mang attended the meeting for first-shift employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558 spondent’s flexibility would22 be restricted by the rules of a union contract; and that bringing in a third party or union would ruin or wreck the progress the Respondent was making.23 4. Gary Olson/Mario Blanquel speeches/meetings Olson gave two captive audience speeches to employees dur- ing the election campaign, each time giving a similar speech to each of all three shifts.24 At the first speech, the supervisor of the shift on which the speech was given was present. During the second speech, Shift Supervisor Mario Blanquel was pre- sent at least for the meeting on the first shift.25 At the two cap- 22 Howe’s actual testimony is, “That we would be—in a union situa- tion, we would be—could be restricted insofar as needing to follow the rules of the union contract.” Then, in answer to a question of the Re- spondent’s counsel, Howe testified that he didn’t recall whether he used the word “would” or “could.” There was no other evidence as to which word Howe used. Because Howe first used the word “would” in his testimony before appearing to catch himself and say “could,” I con- clude that the initial words of his testimony are the reliable ones in respect to this issue, and that, in fact, Howe used the word “would.” 23 Employees Rex Mang and Sharon Cassel, both witnesses for the General Counsel, testified that Howe, in talking about the Respondent’s upbeat plans for the future, said words to the effect of asking employ- ees why they would want to “wreck” everything by bringing in a union. Mang testified that Howe said, “why ruin this by bringing in another party.” Cassel testified that Howe said that “[b]ringing in a union . . . would wreck everything.” Howe, when asked by the Respondent’s counsel whether he had made any comment to the effect that if the employees voted for a union, it would ruin the company or ruin the company’s progress, answered, “No.” While Mang and Cassel did not use identical words, the import of the words of their testimony is the same: that is, that Howe told the assembled employees that choosing the Union would ruin the Respondent’s otherwise upbeat progress. The fact that they did not use identical words does not detract from the credibility of either witness. Based on my observations of their de- meanor as witnesses, including their generally unhesitating and forth- right answers to the questions of all counsel, I credit their testimony rather than the denial of Howe. Howe’s credibility is discussed in more detail, infra. 24 The record does not definitively establish the dates of the speeches except that they occurred during the union election campaign after the Gardetto speech and before the election. 25 I found, and Olson so testified, that he attended and spoke at two series of meetings, each series consisting of a similar speech to each shift. I also find that Blanquel at least attended and spoke at the first shift meeting for the second speech, which Olson also attended. Olson testified that the first-shift supervisor (Blanquel) attended the first-shift meeting for the first speech, and that Blanquel attended all three shift meetings for the second speech. Blanquel testified that he only at- tended the first-shift meeting for the second speech. The four General Counsel witnesses, all employees, had differing recollections: Sharon Karboski testified to remembering only one meeting with Olson. Rex Mang remembered two meetings with Blanquel and Olson, the first of which Mayer also attended. Kathy Mankin remembered one meeting with Blanquel and Olson. Sharon Cassel remembered one meeting with Olson and Blanquel on the first shift. Because of this widely divergent testimony, some of which may or may not have been caused by some of the employee-witnesses not attending all the meetings, I cannot reach a definitive finding as to how many of these meetings Blanquel attended, other than he attended at least the second speech for the first shift, but may also have attended all three shift meetings for the second speech, and either one or all three shift meetings for the first speech. Nevertheless, my factual findings as to what Blanquel and tive speeches he gave, Olson told employees that he was there to talk about the Union, that he was against the Union, that choosing a union is overdoing it just like putting a tourniquet rather than a “Band-Aid” on a cut finger is overdoing it, and that the Respondent had made mistakes but that he, Blanquel, and Lepak were trying to change things and make them better and treat them fairly by giving them, for example, enough ad- vance warnings of shift changes. Olson told the employees, as to notice of shift changes, that Tom Howe had stated that he “would make sure that we would give them ample notice from that point on,” and that Howe had also stated that “we were not going to work Sundays.”26 At the meeting or meetings he attended, Mario Blanquel told the employees he had worked for union employers, and unions promise a lot of things, but “why would you want to pay union dues,” and that he would treat the employees fairly. At one of the meetings, employee Joe Carvalho asked why he hadn’t been paid as a lead person. Blanquel responded that if the Respon- dent ever went back to three shifts Blanquel would consider him the lead, and would do his best to get Carvalho what he deserved. At one or both of the Olson meetings, the subject of the per- manent layoff of alleged discriminatee Dennis Sobiech came up.27 At the first captive audience meeting, one or more of the employees present brought up the subject of the permanent layoff of Dennis Sobiech, and questioned why he wasn’t of- fered another position with the Respondent.28 One of the em- ployees asked why Sobiech wasn’t offered another job if he couldn’t handle the baking process operator job. Olson said he would check into it. After the meeting, Olson met with Mayer, Olson said at these meetings are based on my credibility assessments of all of these named witnesses, no matter at which meeting(s) the com- ments may have been made. 26 Much of my findings as to what Olson said at the meetings come from his testimony, which I have credited as to these meetings. How- ever, Olson did not appear to have a complete memory of these meet- ings, including comments such as “I don’t remember exactly,” in his testimony. I have, thus, also credited the General Counsel’s witnesses who added to Olson’s testimony and whose testimony Olson did not deny. I have credited Rex Mang and Kathy Mankin that Olson said that the Respondent had made mistakes, that it wanted to do better, and employees should give Respondent a chance, and credited Sharon Cassel that Olson said he was at the meeting to talk about the Union and that he was against it. 27 General Counsel witnesses Karboski, Mang, Mankin, and Cassel testified as to the subject of the layoff of Sobiech being discussed at one or both meetings, as did Respondent witnesses Olson and Blanquel. The version of each witness is slightly different, but not necessarily inconsistent, except that both Olson and Blanquel took credit for ad- dressing the Sobiech issue at the second meeting. All of the witnesses impressed me both by their demeanor and answers, as making signifi- cant efforts to recall an event that occurred some time ago and testify- ing truthfully as to it. Thus, I credit Olson as to the Sobiech discussions at the meetings, and supplement that finding with the not inconsistent testimony of both the General Counsel’s and the Respondent’s wit- nesses. 28 I credit both Olson and Cassel who testified that employees had questions as to the Sobiech layoff. BAPTISTA’S BAKERY, INC. 559 and mentioned the question raised at the meeting.29 Mayer told Olson that one of the disciplinary writeups in Sobiech’s per- sonnel file contained a notation to the effect that Sobiech should consider relocating to a different position. At Olson’s request, Mayer gave Olson a copy of the writeup. Olson took Sobiech’s writeup with him to his second captive audience meeting. At the second meeting, Olson, with Blan- quel, told the assembled employees that, in fact, Sobiech had been offered another position and that he had it in writing, “right here.” None of the employees asked to look at the write- up, and Olson did not actually show the write-up to any of the employees at the meeting. After the meeting, Olson, Blanquel, Cassel, and Mankin had a side conversation. Mankin and Cassel asked questions about why Sobiech was laid off. Olson and Blanquel offered to show them Sobiech’s personnel file. Cassel asked why the “pasta people” (the employees who had come over from AIPC) were being hired at higher wages than the Baptista’s employees had been earning. Blanquel answered that it was because of “what they brought to the table.” Both Blanquel and Olson asked if Cassel and Mankin had any ideas on “how to improve,” and said that they wanted to make things better. Blanquel said that if any of the employees wanted to meet them outside of work, at any time, they would be willing to answer questions and “try to convince us that Baptista’s was going to be a better place for us and things were changing and they were striving to work towards that.” At that point Cassel and Olson left the conversa- tion.30 After Olson and Cassel left, Blanquel and Mankin continued to talk. Blanquel again asked Mankin if she had any ideas on how the Respondent could improve. Mankin responded that she would have to think about it. Blanquel said that he would take Mankin out to dinner and would pay for it so they could discuss her ideas. Mankin responded that she wouldn’t do that by herself. Blanquel said that she could take anyone and he would pay for it out of his own pocket. Mankin responded that she would think about it.31 I credit Blanquel’s testimony that during the course of his employment by the Respondent as a supervisor he had previ- ously solicited suggestions from a number of employees. The 29 In their brief, counsels for the General Counsel state that Olson testified that Mayer was present at the first meeting, so it isn’t logical that Olson would report to Mayer what happened at the meeting, if Mayer had attended the meeting. But I do not view Olson’s actual record testimony as necessarily meaning that Mayer attended the first meeting. Q. Who else from management was there? A. In the first round of meetings the supervisor of the particu- lar shift was there. Q. Okay. A. And then Tom Mayer. Further, even if Mayer had attended the meeting, that doesn’t preclude Olson and Mayer from later discussing what happened at the meeting. 30 My finding as to what was said during this conversation is based on the credited and uncontradicted testimony of Cassel and Mankin. As to this conversation, both witnesses demonstrated excellent recall and answered questions without hesitation. 31 My finding as to what was said between Mankin and Blanquel is based on the credited and uncontradicted testimony of Mankin. essence of Blanquel’s testimony was that from the time he started work as a supervisor he solicited suggestions from em- ployees under his supervision as to how their work could be performed better, easier, and faster. Blanquel testified that he asked for such suggestions “because they do the job so they should know what can we do for them to get the job easy. A lot of times we in management we overlook things and when we ask them they come up with good ideas.” Blanquel also testi- fied, “A lot of times the employees they bring it up before me to a manager and it was not accomplished and it’s something we can do that is not costly, they can get things done faster and better.” E. The Election Campaign: Supervisor/Employee Conversations 1. Blanquel conversation with Karboski About 3 weeks before the election, Karboski was told by her leadperson to report to Blanquel’s office where Blanquel and Karboski spoke. Blanquel told Karboski that he wanted to give her his take on the Union; that he didn’t believe in unions, and that it’s not always the way they say it’s going to be. Karboski said she wanted the Union in. Blanquel said that in the bargain- ing, the parties could start from zero and employees could lose their vacation.32 2. Blanquel conversations with Carvalho Supervisor Blanquel and employee Carvalho had five con- versations during the election campaign period in February and March. In mid-February, Carvalho was told to report to Blan- quel’s office. Blanquel told Carvalho that he might get paid the following week as a lead baking process operator (BPO), rather than just as a BPO.33 Blanquel then asked Carvalho if he knew anything about the Union, Carvalho said he didn’t. Blanquel told Carvalho that Carvalho would lose his vacation and senior- ity and that everything would start from zero if a union came in, and that the owner would close down the plant. Blanquel said 32 My finding as to what was said between Blanquel and Karboski is based on Karboski’s testimony and Respondent’s admissions in its answer, par. 9(a)(ii). Karboski was taken through the conversation a number of times by counsel for the General Counsel, counsel for the Respondent, and me0. She impressed me as trying her best to honestly and accurately answer all of the questions of counsel. Her answer to the last question from Respondent’s counsel, as clarified by me, is consistent with the rest of her testimony and is credible. She testified, “My basic recollection is he said we could start out from zero and could lose our vacation.” In its answer, the Respondent admitted words simi- lar to those testified to by Karboski, but denied she was told vacation would be lost. The Respondent counsel’s position statement, admitted in the record, was consistent with the Respondent’s answer. Blanquel testified as to employees he had one on one conversations with, but did not mention Karboski. He also testified that he didn’t remember speak- ing to any employee about how contract bargaining worked or recall telling any employee that if a union came in, everything started from zero. Again, based on Karboski’s credited testimony and Respondent’s answer, I find that either Blanquel’s memory is faulty or his testimony as to this issue is not credible. 33 Carvalho had been acting as a lead person from June 2004 until February 2005, but was not receiving pay commensurate with the lead position. At the time of this conversation Carvalho was acting as a lead. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560 that he had worked for a union shop for 9 years and knew the Union is a bad thing.34 About a week to 10 days after the first conversation, Blan- quel and Carvalho spoke in the hallway outside the supervisor’s office. Carvalho asked why he wasn’t receiving the pay for a lead BPO. Blanquel said because “we were in the process of union [sic] campaign.” Carvalho asked why he hadn’t been paid as a lead since he had been performing the work for 8 months. Blanquel said, “It’s up to people upstairs.” At the end of February, Carvalho complained to Blanquel about receiving remuneration for 2 days in his paychecks in lieu of 2 vacation days, when he did not request such in lieu pay. Carvalho had, in previous years, accumulated all of his vacation days to use in one long annual vacation and did not want pay in lieu of vacation days because he wanted to con- tinue his vacation practice.35 Blanquel told Carvalho that “it’s the way it’s supposed to be, is new administration, new man- agement.” In mid-March, Blanquel walked up to Carvalho in the lunchroom and told Blanquel, “Joe, you were right. You don’t have to take vacation days paid if you want.”36 Carvalho then signed a form proffered by Blanquel, agreeing to pay back the Respondent. I also find, as to pay in lieu of vacation, that in July 2004 the Respondent had introduced a new policy as to combining vaca- tion pay and holiday pay into a single bank of paid time off, and allowing employees the option of taking paid time off or receiving remuneration in lieu of the time off. 34 In my observations, Carvalho, while experiencing some English language difficulties, demonstrated the demeanor of a witness earnestly attempting to truthfully answer the questions of counsel, both on direct and cross-examination. He demonstrated good recall and was generally consistent in his testimony. I find Carvalho to be a credible witness. While his testimony as to the conversations with Blanquel was gener- ally uncontradicted, Blanquel did answer, “No,” when asked by Re- spondent’s counsel, “Did you ever tell any employees that the plant would be closed?” Blanquel was not asked specifically whether he said that or similar words to Carvalho. I also note that when Blanquel was asked to name the employees he recalled individual conversations with, he named five employees, but not Carvalho. Based on my observations of the demeanor of the two witnesses, and the impressiveness with which Carvalho testified, I credit his testimony as to all of his conversa- tions with Blanquel. Given the level of detail Carvalho credibly testi- fied to as to his conversations with Blanquel, Blanquel’s testimony that, in effect, he didn’t talk about the Union to Carvalho, is not credible. 35 In 2004, the Respondent had announced a policy allowing em- ployees the option of either taking paid time off or receiving money in lieu of the time off. There is no evidence that Carvalho had made such a request. In fact, the evidence demonstrates that Carvalho wanted his vacation days, not the pay in lieu. 36 Subsequent to this conversation with Blanquel, and prior to the election, Tom Mayer also had a conversation with Carvalho in which the subject of Carvalho’s vacation preferences came up. Mayer told Carvalho that the Respondent had just reinstated two employees who had missed work because they were in jail, that the same flexibility which allowed the Respondent to reinstate the workers, allowed the Respondent to grant Carvalho the 3 consecutive weeks of vacation each year, and that Carvallho should think about it because if a union came in it would be different. I credit Carvalho’s testimony on direct exami- nation as to this, rather than the similar answers he gave to summary questions on cross-examination. Also towards the end of February, Blanquel spoke to Car- valho in the plant mixing room. Blanquel told Carvalho, “So I want to show you that it’s true that Dennis Sobiech got a write- up and this is his signature.” Blanquel showed Carvalho a pa- per which purported to be the Sobiech writeup. Carvalho looked at the paper, but didn’t reply. 3. Mayer conversation with Karboski The Respondent’s vice president for human resources and operating services, Mayer, and employee Karboski spoke in the packaging room the day before the election.37 Mayer said “Good morning,” and told Karboski that he had heard that she was going to be the Union’s observer for the election. Kar- boski said, “Yeah.” Mayer said that he was surprised that the observer wasn’t Paul (Brzezinski). Karboski said that she had picked her side early on and that she was going to stick with it. Mayer replied, “I hope you know what you’re doing.” Kar- boski said, “Well, if it didn’t work out we could vote the union out in a year.” Mayer replied, “That’s what crack addicts think too, that they can get off of it.”38 4. Lepak conversation with Mang In mid-February, Brett Lepak, the Respondent’s vice presi- dent of operations, and employee Rex Mang spoke in the mix- ing room. Lepak walked up to Mang in the mixing room and told him that “[w]e have good work force, they’re good work- ers, and you don’t complain too much.” Lepak also told Mang that “[t]hings were looking good.”39 5. Gardetto conversation with Mang About 2 weeks before the election, Mang and the Respon- dent’s founder and CEO Nan Gardetto spoke in the mixing room.40 Gardetto walked up to Mang, mentioned that they go back a long time and that he knew her whole family. Gardetto asked Mang about an old friend they both knew. She told Mang that “things will be getting better” at the facility. Gardetto told Mang that Respondent maybe was going to go back to offering anniversary awards to employees. A previous program, which had been discontinued, provided that on certain anniversaries of employment an employee could pick a prize from a catalog.41 6. Mayer conversation with Mang A week or two before the election, Mang was told that Meyer wanted to see him. Mang went to Mayer’s office. Meyer told Mang he knew the employees were kind of upset that the Respondent had let Dennis Sobiech go, but that Dennis had been making mistakes and Mayer was going to show Mang Sobiech’s personnel file showing that Sobiech had made mis- 37 Based on the record, it is impossible to determine who initiated the conversation. 38 My finding as to this conversation is based on the uncontradicted testimony of Karboski, who testified with impressive demeanor and is a reliable witness. In his brief, the Respondent’s counsel does not dis- pute Karboski’s version of the conversation. 39 I credit Mang’s uncontroverted testimony as to this conversation. 40 I credit Mang’s uncontroverted testimony as to this conversation. 41 The previous program had been discontinued in about 1996 and, thus, may have been in effect at Gardetto’s rather than Baptista’s. BAPTISTA’S BAKERY, INC. 561 takes in the past. Meyer showed Mang a file which contained something about what another supervisor had written about Sobiech. 7. Blanquel and Sparks’ conversation with Mang About 2 or 3 weeks before the election, Mang met for about 10 minutes in a supervisor’s office with Blanquel and Supervi- sor Russ Sparks. Blanquel said that he had worked for a com- pany that had a union and “they didn’t do nothing for him,” and asked Mang why he would want to “pay so much money for union dues.” Sparks said he worked for a company that had a union and he agreed with Blanquel that “they promise you this and promise you that . . . the union is not all that it cracked [sic] to be.” Sparks gave his opinion that a union destroyed hockey and that the NHL lost a year of play. Sparks showed Mang a list of employees’ names and how much it would cost him each month for union dues. Blanquel asked Mang for suggestions to “make the company better.” Mang suggested that there should be job postings with a signup sheet.42 At some point after the conversation, Mang saw job postings in the lunchroom. Respondent, in fact, posted an available job and signup sheet on the lunchroom bulletin board from March 2-5. Respondent had posted such job openings and signup sheets in the past, but not during 2005. Respondent had posted jobs in 2000 and 2002, and sometime in 2004. Blanquel had, on previous occasions, talked to Mang about improving production processes. In 2004, when Blanquel first was employed by the Respondent, as a supervisor, he asked Mang, the BPO with the greatest seniority at that time, and other employees, questions about how they did their jobs, and how the jobs could be done better. Blanquel continued to ask for suggestions, focused on the production of the Respondent’s products and how the production processes worked. Blanquel also asked other employees for suggestions beginning upon the inception of his employment with the Respondent. These sug- gestions involved improvements in the production processes. 42 Blanquel denied that he ever spoke to Mang about the subject of a union during the time of the organizing campaign. Blanquel admitted that he had a conversation with Mang during that time period, but testi- fied, “I don’t remember exactly the conversation.” Sparks did not testify. As noted, I did not find Mang to be an infallible witness but was generally impressed with his testimonial demeanor and his earnest attempts to truthfully answer questions to the best of his ability, rather than just to give answers which were helpful to the General Counsel’s case. Here, Mang demonstrated a good recollection for detail as to this conversation, and on balance I credit his testimony over Blanquel’s denial that he spoke to Mang about the Union during the campaign. I note that Blanquel testified that he didn’t remember if it was during the union campaign, but that “[w]hen I asked my employees, the people that work for me, I tell them, you know, things are going to get better for them to make their job easy. One of the things that he brought up was why can’t they post a job.” Blanquel testified that the conversation occurred as Blanquel was talking to Mang about the Respondent bring- ing in new stronger hoses for cleaning. Because I found Mang to be a generally reliable witness, and because I found Blanquel less so, par- ticularly here, where his recollections were not strong and changed during the course of his testimony, I credit Mang’s testimony that this conversation occurred during the course of the union campaign, and during a conversation in which Blanquel and Sparks were presenting reasons to Mang why he should oppose the Union. For example, Carvalho suggested placing air hoses closer to the production line for cleaning the ovens. Other employees sug- gested to Blanquel placing hot water hoses next to a production line, more automatic systems, and putting alarms into oven systems that did not have alarms. Blanquel sought these sug- gestions from the employees he supervised in the mixing room and the packaging area in order to improve the production processes, and he testified, “It’s something we can do that is not costly, they can get things done faster and better.”43 In addition to asking Mang for suggestions, prior to Septem- ber 2004, supervisors regularly asked Karboski for her opinions as to how the Respondent was doing. After September or Oc- tober 2004, when Lepak was hired by the Respondent, he met with all employees and asked for suggestions as to how things could operate better.44 There is no evidence as to the number of such meetings or the dates on which they occurred. F. Postelection 1. Election day memo posting On the day of the NLRB election, after the election, the Re- spondent posted a memo from Gardetto and Howe to all em- ployees. The memo, in pertinent parts, stated as follows: Folks, the NLRB has informed us that all of you voted today to continue to operate without a union. . . . . The vote was 22 to 21, and we sincerely thank every- one for your show of support for keeping Baptista’s as one team, and for believing that your futures are brighter by working together to become a unified team. . . . . We also appreciate the “wake-up call” presented by this union organizing drive and this close election result. We know that much work remains to bring everyone to- gether under one banner. . . . Because of “challenged ballots,” the election is not yet final. . . . We acknowledge that we should have done a better job of communicating the need for changes that took place, as well as providing opportunities for employees to actively participate in effecting those changes. We realize that the greatest success comes when there is effective, continuous communication, sharing of information, and employee participation. You’ve all helped us start on this path and we commit that this will be our environment going for- ward. 43 I largely credit Blanquel as to his seeking suggestions from em- ployees under his supervision, and that his questions and the sugges- tions principally dealt with production processes. This testimony is consistent with Mang’s testimony. 44 Karboski credibly testified that she attended meetings where Brett Lepak asked all employees for suggestions about how things could operate better. No dates were established for these meetings, except that it/they occurred after September 2004. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562 2. Consultant Susan Wehrley Susan Wehrley is a self-employed organizational and em- ployee development consultant. Following a discussion be- tween Mayer and Gardetto in January, the Respondent retained Wehrley. The record does not delineate the exact date Wehrley was retained by the Respondent. The Respondent had previous utilized Wehrley’s services in 2000 and 2001 to work with the Respondent’s management in improving communication skills and blending management styles and managers’ personalities. This work principally involved the top managers of the Re- spondent, including Gardetto and vice presidents. On February 10, Wehrley sent an e-mail to Howe, with copies to Gardetto and Mayer, confirming a meeting on Saturday, February 12, and stating, “Also, if there is a decision made ahead of time on which way you are choosing to go with the union, be sure to let me know ASAP, as that will change what I focus on in my session.” Wehrley met on February 12 with the Respondent’s manag- ers, including Gardetto, Mayer, Howe, Olson, Lepak, Sertich, Bequest, Ken Thompson, Blanquel, Sparks, Jon Becker, Amy Roebuck, and Marlenea Jackson. Following the meeting, Mayer sent an e-mail message to all of the attendees, with a copy to Wehrley, which contained the following in pertinent part: Folks, thanks for spending your Saturday morning in our meeting today. . . . . As we go forward in this effort, the best thing you can do is to just be yourself, the person that people know. If you worry too much about the legal aspects, or try to ex- press your feelings in the legal words and phrases used by our attorneys, it will be clear to the people on the shop floor you’re not being yourself and they will not accept you as sincere. . . . . By being yourself, keeping it simple, and following the rules on the TIPS card you’ll satisfy the legal side of things while having great communications with your peo- ple offering facts and opinions that will help them realize how the Teamsters are not in their interest. We’ll all talk frequently as we go forward. I’ll be glad to answer your questions, help you think-through how to handle situations you may encounter, and we’ll overcome any minor mistakes we make which I’m sure will be few and far between. Wehrley met three times in February with the Respondent’s top management, including Gardetto, Howe, Mayer, and CFO Jon Becker. At these meeting, Wehrley was informed of the existence of the Union’s organizing drive, that management was concerned about the drive, that management wanted to know the cause of employees wanting a union, and manage- ment desired not to have a union. Wehrley testified, “. . . it was clear that they didn’t want a union, and there was concern about why that there was an attempt, in the beginning, to even have a union, what was the cause of the employees wanting a union.” In tailoring her work for the Respondent, discussed below, Wehrley designed her study, in part, to find out the root cause for disgruntled employees. Wehrley testified, “It wasn’t neces- sarily tied exactly to the union, but there was a concern about why are people disgruntled.”45 Wehrley also conducted workshops with plant supervisors. During these workshops, she talked about communication, leadership, and teamwork, and “we talked about how might they do that while the union was going on.” The subject of the Union came up in more than one of these workshops.46 Wehrley also met with plant employees on three occasions, the first being on May 10, almost 7 weeks after the election. Attendance at the meetings was mandatory for the plant em- ployees. At the first meeting, Mayer introduced Wehrley to the assembled plant employees, and then left the meeting. Wehrley told the employees that Gardetto had asked her to help improve communications between Baptista’s and its employees, and to help the longtime Baptista’s employees merge with the newer employees hired from AIPC (the “pasta people”).47 Wehrley distributed a 9-page questionnaire48 to the employees, asked them to complete and return the questionnaires and promising them a $10 gift certificate at a local restaurant in return, and assured them the questionnaires would be kept confidential.49 Wehrley again met with plant employees on May 18. Prior to this meeting, Mayer posted a memo to all employees an- nouncing the May 18 meeting. The memo contained the fol- lowing: “Please make sure your surveys are completed as best you can and sealed in the envelopes that Susan provided. If you’ve lost the envelope, please put your completed survey in another envelope so that it remains confidential. Thanks, Susan looks forward to meeting with everyone again, and she’ll have $10 Culver’s Restaurant gift cards as a ‘thank you’ for every- one who returns a survey to her.” Wehrley conducted this sec- ond meeting, collected the completed questionnaires, and passed out the Culver gift cards. Wehrley conducted a third 45 My findings here are based on exhibits, and the testimony of Wehrley, which I have credited. Although displaying some of the normal problems associated with trying to recall events that occurred some time ago, Wehrley impressed me by her demeanor and answers as making every effort to honestly answer the questions asked of her on direct and cross-examination. While she maintained a longtime busi- ness relationship with the Respondent, she did not demonstrate any bias towards the Respondent’s position in her testimony. On occasions when her memory failed, she was able to recall events upon being shown exhibits which memorialized the events. 46 Again, this finding based on the credited testimony of Wehrley. 47 My findings as to the meeting are based on the credited, noncon- flicting, testimony of Wehrley, Karboski, Mang, Brzezinski, and Meyer. 48 It appears from the record that completing the surveys was volun- tary in that an incentive gift certificate was offered for doing so. Kar- boski testified on cross-examination as follows: Q. She told you it would be strictly voluntary? A. I don’t know if it was voluntary. Q. It was not voluntary to come to the meetings but it was voluntary to complete the assessment. Right? A. Yes. 49 Karboski, on two occasions, testified that Wehrley told the em- ployees that the questionnaires would be kept confidential. She also testified that Wehrley said that the “assessment” would be shown to management. The assessment is the document Wehrely prepared from the information garnered from the questionnaires. BAPTISTA’S BAKERY, INC. 563 meeting in late May with the plant employees during which she explained her composite summary of the questionnaires.50 The survey, attachment 4 to the complaint, covers a wide range of issues concerning employee attitudes about their jobs and employment with the Respondent, including some directly related to their terms and conditions of employment. Questions which arguably impacted on terms and conditions of employ- ment included: How would you rate your overall satisfaction with the direction of the company? Name 1–3 changes you feel have been most negative (positive) in the last year and why? What do you need so that you can trust your manager more? What is Baptista’s greatest weakness (strength)? What is the greatest threat to Baptista’s? The survey also asks employees to rank the Respondent on a 1 to 5 scale in areas including: “There is recognition and incentives for a job well done.” “My pay is competitive with jobs at other companies that involve similar work.” “Vacation and holidays.” “Benefits.” The sur- vey asks: “What suggestions do you have for recognition pro- grams and incentive programs?” “List 3 instances in the past 6 months where [you] felt the Company went beyond your expec- tations. In other words, what did the Company do for the em- ployees to go the extra mile?” “What would you like the Com- pany to do to go the extra mile for you?” After the meetings with the plant employees, Wehrley con- tinued to meet and consult with the Respondent’s management from August through November in a “strategic planning proc- ess.” There were four or five of these meetings, and the Union continued to be a topic “on and off.” The main topic at these meetings was a strategic plan for the Respondent, which was broken up into “people,” “productivity,” and “profit.” During these discussions, while the Union was not the focus, Gardetto brought up the subject of the union organizational campaign, that it was a “symptom,” that it was something that can’t be ignored, and it was “something going on that we have to ad- dress.”51 G. Providing Benefits 1. Employee-of-the-year award and prize On March 28, 5 days after the election, the Respondent awarded an “employee-of-the-year” prize, consisting of a $500 gift Sears gift certificate and a plaque, to plant employee John Rautio. The Respondent had never previously awarded an employee-of-the-year prize, although both in 2005, and in past years it has awarded perfect attendance prizes both for the cur- rent year and consecutive years. The single-year perfect atten- dance award has been a $75 restaurant certificate and a plaque, each year since 2001. The consecutive year’s perfect atten- dance award has been a $100 savings bond for each year over one, and a plaque, each year since 2001. Mayer testified that the Respondent created the employee-of-the-year award be- cause “2004 was a year of significant change and we had an 50 The record does not contain much detail as to this meeting. Only Wehrley testified as to this third meeting, some of the other witnesses only remembering two meetings. Wehrley, as discussed earlier, is a reliable witness, and I credit her recollection of a third meeting. 51 From Wehrley’s credited testimony. employee who really distinguished himself for all the different things he did.” 2. Baseball game outing and jacket In late April, the Respondent provided its plant employees with free jackets with Baptista’s logo, in conjunction with a complimentary catered outing to a Milwaukee Brewers baseball game. Respondent gave plant employees their choice of jacket style, including zip-up windbreakers and pullover fleece, and color. The jackets were accompanied with a memo from Gardetto and Howe which stated, “As we move Baptista’s for- ward it is important that we do so as one unified team.” Re- spondent requested employees to wear their new jackets to the Brewers outing. Respondent purchased the jackets at a cost of $2445.38. The Respondent, in early April,52 invited its plant employees, their children, and a guest, to be its guests at a Milwaukee Brewers baseball game on May 1. The invitational memo stated, “We have a block of tickets reserved for Baptista’s team members . . . spouses or significant-others, and kids. Baptista’s is providing the food and game tickets, your only cost will be for parking.” The baseball outing included tickets to the game, and a buf- fet meal in the stadium’s “Dew Deck,” a private section. The buffet included various main dishes, salads, cakes, soft drinks, and two alcoholic beverages per ticket. Gardetto’s, the Re- spondent’s de facto predecessor, had sponsored numerous events at the Brewers’ ballpark, but the 2005 event was the first one sponsored by the Respondent. Gardetto testified that the Respondent had not previously sponsored a Brewers’ event because, “. . . we weren’t making money.” Gardetto also testi- fied that such an outing is “a very expensive event to hold and we didn’t have the money.” At the time of the organizational campaign, the Respondent was not making a profit and was not consistently profitable until the first part of 2006.53 In the past, prior to 2005, the Respondent has sponsored other social events for employees and given free clothing to employees. In October 1999, the Respondent sponsored a bar- beque to celebrate the new business and the fact that there was no lost time due to employee injuries for a year. Mayer cooked steaks and baked potatoes for all the employees. In December 1999, the Respondent sponsored an all-employee meeting and dinner, to “talk about what was going on in the business,” and conducted a drawing for six tickets to a Green Bay Packers football game. In March 2000, the Respondent sponsored a “chili cookoff,” in which Mayer prepared his chili for the employees, and em- ployees were requested to bring in to work their own chili or side dishes. There were no prizes for the chili event. In Janu- ary 2000, the Respondent sponsored a “baby guessing contest” in which employees tried to match baby photos to the adult, with a restaurant certificate prize. In April 2000, the Respon- dent sponsored an all-employee meeting with barbeque, at which the Respondent provided “brats and buns,” and employ- 52 The memo announcing the outing requested that employees sign up no later than April 7. 53 Howe’s credited and uncontradicted testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564 ees were requested to bring in other dishes and desserts. On October 29, 2000, the Respondent sponsored a “First Anniver- sary Party and Packer’s Blast” held in a park, at which employ- ees were invited to bring side dishes and watch a Packers game on television while the Respondent provided a pig roast and soft drinks. Also, apparently in 2000, the Respondent spon- sored a restaurant-catered lunch at the plant to thank employees for shifting their work schedule prior to the Thanksgiving holi- day. Most years the Respondent has provided turkeys to its em- ployees, at a cost to the Respondent of about $10 to $15 per turkey, in conjunction with its annual holiday luncheon for employees and has also provided “Fiesta Italiana” tickets to employees during the summer, which tickets the Respondent obtained at no cost to itself, but would have cost $10 to pur- chase. On June 27, 2002, the Respondent sponsored an all- employee meeting and barbeque at which the Respondent pro- vided most of the food.54 On August 12, 2002, the Respondent sponsored a third anniversary cookout, at which the Respondent provided picnic fare, and invited employees to bring food to share. The Respondent has also previously purchased logo clothing for its employees. In 2000, the Respondent provided Baptista’s logo button-down khaki shirt with “Founding Team Member” printed on the cuff to employees employed at the inception of the Respondent, and green logo sweatshirts to employees in August 2002. Respondent purchased the “Founding Team Member” shirts at a cost of $1,377.40. 3. Two dinners for sanitation and quality control employees I find, and the parties stipulated, that in June 2005, Marlenea Jackson, the Respondent’s manager of quality assurance and sanitation, invited all of the employees of those departments, along with a guest, to a complimentary dinner at Famous Dave’s restaurant for the stated purpose of thanking employees for a successful sanitation audit by the AIB (American Institute of Baking). I further find, and the parties stipulated, that 2 or 3 weeks later,55 Howe and Gardetto took the entire same group, and Jackson, to Ingrilli’s restaurant for another complimentary dinner, for the stated purpose of thanking employees for a suc- cessful audit by the AIB. The price range for dinners at Fa- mous Dave’s is $10 to $20. At Ingrilli’s, the price range is $15 to $25, and higher.56 The Ingrilli’s dinner included alcoholic drinks, the Famous Dave’s dinner did not. Jackson testified that she took out the entire quality assurance and sanitation department for dinner because she was pleased with the rela- tively high score the Respondent received from the AIB audit and to reward the employees of those departments for their hard work which she believed led to the audit score. I credit Marlenea Jackson’s uncontradicted testimony as to the background of the AIB inspection as follows: the Respon- dent hired Jackson as quality assurance and safety manager in late October 2004. Upon employment, Jackson determined that 54 Mayer testified that two to four times a year the Respondent has some type of barbeque or employee meal. 55 Jackson testified that the second dinner was 2 or 3 weeks after the first dinner. 56 Uncontradicted and credited testimony of Kathy Mankin. the facility had not been properly maintained and that much work needed to be performed so that the Respondent’s facility could pass the AIB audit. The AIB auditor inspects for cleanli- ness, equipment maintenance, cleaning cycles, and employee sanitation, among other items. Preparation for the audit began in December 2004 and continued up until the actual audit the last week of May, and included the usage of eight or nine tem- porary employees the weekend prior to the audit. The Re- spondent scored 870 out of 1000 on the audit, an “excellent” rating with “superior” being the highest, and a score that Jack- son characterized as a “B.” There is no evidence as to when the Respondent received the AIB inspection score. H. No-Solicitation/No-Distribution Rule Posting There is little factual dispute between the parties as to the Respondent’s posting of its no-solicitation/no-distribution rule. On February 21, the Respondent posted the rule on a glass- enclosed bulletin board in the employee lunchroom. No rule had been previously posted in the plant, and the Respondent posted the rule solely in response to the Union’s organizing campaign.57 Respondent had an existing rule published in its employee handbook, but not posted, which prohibited solicita- tions during working time, not including breaks, lunch, and before or after scheduled work, and prohibited the distribution of literature in working areas, which did not include the lunch- room or parking lot. The rule posted by the Respondent on February 21 restated the existing rule and added the following: “Please be advised that employees who violate this policy will be subject to disci- plinary action, up to and including discharge from employ- ment.” The posting also directed employees to bring any ques- tions concerning the policy to management or to Mayer. The no-solicitation rule contained in the handbook did not include the disciplinary language posted in the notice. Little evidence was presented as to the enforcement or nonenforcement of the February 21 posting. In a section of the employee handbook separate from the no- solicitation rule, the Respondent sets forth a description of its disciplinary procedures and penalties which, in general, sets forth a five-step system of progressive discipline including discharge for violations of the handbook’s guidelines, but also states that “[t]here may also be instances where disciplinary action will not be progressive, depending on the severity and circumstances of the situation.” The disciplinary section of the handbook also states as follows: “Baptista’s will attempt to administer discipline fairly based on the circumstances. Be- cause it is impossible to list every conceivable infraction, these guidelines may not be all-encompassing and can be amended by Management within its sole discretion.” The exact language of the addition to the no-solicitation rule does not appear in the handbook. Although the complaint does not allege disparate enforce- ment, and counsels for the General Counsel acknowledge that the posted and preexisting rule is not facially invalid, the rule appears not to have been particularly enforced either before or after its posting in the lunchroom, either prior to or during the 57 Mayer so testified as to the reason for the posting. BAPTISTA’S BAKERY, INC. 565 organizational campaign. Thus, sometime after the Union’s organizing drive began, Supervisor Jackson solicited employee Cassel for a fund raiser for her daughter, and handed her a bro- chure in the lab area. Jackson handed Cassel a brochure, pointed out an item to Cassel that she might like, told her to show the brochure to other lab techs, and if they wanted to buy something to give her the money. Cassel purchased two items.58 This solicitation occurred during worktime. Jackson also engaged in a similar solicitation of employee Mankin in the lab on worktime, before the organizing drive.59 On a num- ber of occasions, prior to the Union’s organizing drive, Kar- boski observed solicitation for the sales of various products including home interior products and Avon products through the usage of catalogs left in the lunchroom. Additionally, about 3 or 4 years prior to the posting, Karboski sold raffle tickets in the lunchroom to other employees and to at least one supervi- sor.60 Further, the parties stipulated that prior to the date the no-solicitation rule was posted in the lunchroom, “on various occasions employees engaged in the sale of commercial items, including for example for civic and charitable groups, in vari- ous nonproduction areas of the plant including the office area, without objection by the Respondent.” I. Discharge of Kathy Mankin QA tech (quality assurance technician) Kathy Mankin was initially hired by the Respondent in about 1999. Prior to the permanent layoffs of February 2, she had worked as a packager (packaging department employee), but had also filled in as a BPO, and as QA tech “once in a while.” Mankin was perma- nently laid off along with a number of other employees on Feb- ruary 2. When she was laid off, Mayer told her (and two other employees who were with her at the time) that “it wasn’t a reflection on our work, that the company just needed to cut back.”61 The day after she was laid off, Mayer called Mankin and offered her a position as a QA tech. Mankin began work as a QA tech for the Respondent a few days later. The Respondent discharged Mankin on August 7. During the months prior to the discharge, the Respondent employed three QA techs, Mankin, Sharon Cassel, and Judy Rautio, in its quality assurance department, all of whom reported to Depart- ment Supervisor Marlenea Jackson. Mankin was an avid sup- porter of the Union, and Respondent was admittedly aware of such support. The Union’s letters of February 7 and 25 to the Respondent named Mankin as a member of the Union’s orga- nizing committee. Mayer received a copy of the Union’s March 23 “Vote Yes” campaign letter containing the signatures of 14 employees, including Mankin. Jackson testified that she observed Mankin wearing a union button on her coat “every day, so I naturally assumed that she was for the Union.” The Respondent concedes in its brief, that “Mankin was the only QA tech whom Ms. Jackson believed to be a Union sup- porter.” Indeed, fellow QA tech Cassel told Jackson that Cas- sel was not for the Union, “she did not want the Union at Bap- 58 Uncontradicted and credited testimony of Cassel. 59 Uncontradicted and credited testimony of Mankin. 60 Uncontradicted and credited testimony of Karboski. 61 Uncontradicted and credited testimony of Mankin. tista’s.”62 There is no record evidence as to the union leanings of the third QA tech, Rautio, or the Respondent’s perceptions of her leanings, except that she is not named as a member of the Union’s organizing committee in the Union’s letters to the Re- spondent. Beginning in June, Mankin, Cassel, and Rautio experienced a number of performance-related problems.63 About June 22, a customer of the Respondent rejected a shipment of 2710 cases of butter flavored pretzel spindles that had been produced on June 20 and 21, because of what the customer deemed unac- ceptable flavor. The rejection cost the Respondent over $12,000 in lost revenue. Jackson investigated and discovered that none of the three QA techs had documented sensory tests which they were required to perform every 4 hours. Jackson disciplined all three QA techs, handing Mankin and Rautio, both of whom had no prior discipline, a first written warning, and giving Cassel, who had received a written warning a few months earlier, a second written warning. In her testimony, Mankin claimed she actually had performed the tests, but had failed to document them. On July 26, Mankin received a performance counseling from Jackson and Mayer. During the counseling, Jackson reviewed perceived shortcomings in Mankin’s job performance, includ- ing that she was spending too much time in the lab and needed to spend more time on the production floor. During the meet- ing, Mayer told Mankin that he had known her for many years and had always thought of her as an intelligent person who cares about job performance. Both Mayer and Jackson asked if there was something they could do to help her do her job better. Mankin responded that she didn’t know, and she apologized for letting other people down and for not doing her job faster.64 On July 29, 3 days later, Mankin received a second written warning for “unacceptable performance.” This discipline re- sulted from Mankin’s admitted failure to perform sensory tests as per a schedule that Jackson had imposed on the QA depart- ment. In her testimony, Mankin conceded that she had not performed the tests, and that coworker Judy Rautio had advised her to perform the tests, but placed the blame as follows: on a coworker who allegedly told Mankin that if Mankin didn’t finish the tests, the coworker would; on coworkers who worked other shifts and could have performed the tests but didn’t; on Jackson who allegedly did not give her a schedule of “things to do that evening;” and that it wasn’t really necessary to perform the sensory tests according to the schedule because “the sen- sories had been collected over a period of days, they hadn’t been done every day.” Mankin also testified that even though she did not perform the tests on Thursday as per the schedule, she performed them her next day of work, Monday, and there was no production in the plant between Thursday and Monday. On August 4,65 Mankin received a final written warning for “unacceptable performance,” involving the failure of all three 62 Uncontradicted and credited testimony of Jackson. 63 Conceded by counsels for the General Counsel in their brief. 64 My findings as to this counseling are based on a record exhibit, and the noncontradictory testimony of Mankin, Jackson, and Mayer. 65 The shift overlapped from August 4 to 5. So, while the shift be- gan on August 4, it ended on August 5. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566 QA techs, Mankin, Rautio, and Cassel, to correctly weigh sam- ples of a product in a production run. On August 5, Mankin signed the warning, which contained the following: “I, Kathy S. Mankin, have received this Final Warning for Unacceptable Performance. I understand that my job is in jeopardy. I under- stand that any future instance of Unacceptable Performance of any sort will result in my discharge from employment with Baptista’s Bakery, Inc. [capitalization in original].” When Jackson handed the written warning to Mankin, she told her “that this was a final written warning and that the next step for her would be out the door.”66 The incident resulting in Mankin’s final warning began on the August 4 shift. As part of their job duties, QA techs were supposed to weigh sample bags of “Houdini Smoky Mozza- rella” during their production run, to ensure that the bags were between 3 and 3.125 ounces. Mankin, admittedly, simply com- pared the weight of the sample bag to the range of bags weighed during the prior shift, rather than to the guidelines for the weight. Inasmuch as the prior shift’s bags were under- weight, so were the bags on Mankin’s shift, which resulted in the production of 55,000 bags of the product which were un- derweight and had to be repackaged. Thus, all three QA techs had documented the wrong weights, and all three were disci- plined. Cassel, further along in the Respondent’s progressive discipline system, was discharged. Rautio received a second written warning. In her testimony, Mankin blamed the weigh- ing problem on her difficulty converting grams to ounces. Thus, instead of doing the conversion, she simply checked to see whether the weight range during her shift was the same as the range during the prior shift. It turned out both shifts were wrong. Earlier on the same shift beginning on August 4 Jackson had instructed Mankin explicitly that she was to perform certain tasks before the end of her shift. Mankin testified, without contradiction, that Jackson told her to “take the two products that were on hold and take samples out of each box of the prod- ucts and to look at them and put them on the side for her for the next day to look at.” Jackson told Mankin that “they felt that there was probably some burned product in some of them and they may not be acceptable to send out.”67 At Mankin’s re- quest, Jackson wrote a note to Jackson detailing the tasks. At the end of her shift, when she was called in to Mayer’s of- fice to receive her final written warning, Mankin had started, but not completed, the tasks assigned to her earlier by Jackson. As a result of receiving the final written warning, Mankin be- came upset and left the plant, leaving no notes to the effect that she had not finished the assigned tasks, or any explanation therefor. Further, Mankin did not tell Jackson or Meyer that the assigned tasks were not completed, when meeting with them to receive the final written warning, nor note the failure in the departmental logbook. Mankin testified, “I was very shaken, and I didn’t even think to tell them that I hadn’t finished it.” 66 Based on Jackson’s credited testimony. During her own testi- mony, Mankin did not mention this part of the discussion, but said nothing to contradict it. Mankin also testified that Meyer was present when Jackson presented the final written warning to her. 67 Uncontradicted and credited testimony of Mankin. Later on August 5, after going home, Mankin’s husband took her to a hospital, as she was extremely upset from the occur- rences earlier at work. Mankin’s husband called the Respon- dent and left messages for Jackson and Mayer to the effect that she would not be in to work because she was very upset and was being taken to the hospital. Mankin testified that at the hospital she was diagnosed as having an “anxiety attack.” The Respondent discharged Mankin on August 7. The dis- charge memo referred to Mankin’s failure to perform the test- ing duties Jackson had assigned to her on August 4, and re- ferred to the other written warnings received by Mankin, in- cluding the final written warning. There is no evidence that Mankin’s failure to report to work on or after August 5 played any role in the discharge decision. The Respondent did not offer Mankin the alternative of a different job before it dis- charged her. Sharon Cassel, a QA tech, was also discharged based on a series of performance-related disciplinary warnings. At the time of her final warning, before her discharge, Mayer dis- cussed with Cassel whether she would like to work in sanita- tion, packaging, or as a fork truckdriver. Cassel testified that Mayer asked, “[T]hat maybe I would even like some office work.” A similar discussion occurred during a meeting which Jackson also attended. In his testimony, Meyer denied that he ever offered Cassel a different position. In her testimony on direct examination, Cassel was asked if she was offered different positions within the Company. She answered, “Yes,” and testified that it occurred at the time of her final warning. Counsel for the General Counsel then asked her what positions she was offered, and Cassel answered in conclu- sionary fashion as follows: “Sanitation, fork truckdriver, pack- aging machine operator and then Mr. Mayer asked that maybe I would even like some office work.” Cassel was not asked what her response to Mayer was, and Cassel did not testify as to what Meyer’s words were in conveying the alleged offer of another job. Based on Cassel’s testimony, and the denial by Meyer that he offered another job to Cassel, I find that Mayer did not for- mally offer Cassel another job, but was simply gauging Cas- sel’s reaction as to that possibility. As I have noted elsewhere, the testimonial demeanors of both Cassel and Mayer were im- pressive, and they are reliable witnesses. Thus, I credit Mayer’s testimony that he did not offer Cassel another job, and I credit Cassel’s general testimony about the conversations, but cannot conclude that an offer was, in fact, made. Cassel testi- fied that she was offered different positions, but her testimony was just in summary, and did not contain either the words or the approximate words of the offer. In other words, both the counsel for the General Counsel and Cassel, characterized whatever words Mayer used as an “offer.” But the record does not contain whatever words Mayer used, other than as set forth above, or evidence other than Cassel’s conclusionary testi- mony, from which I can find that, in fact, an “offer” was made or that Mayer wasn’t being truthful in his testimony that he did not make such an offer. Prior to the union activity involved herein, on June 26, 2004, Mayer met with Sobiech concerning alleged shortcomings with BAPTISTA’S BAKERY, INC. 567 Sobiech’s work performance. In Mayer’s memo memorializing the meeting with Sobiech, Mayer states as follows: I suggested to Sobiech that he consider a move to Packaging now, telling him that even though this would mean a wage reduc- tion, he would at least be working in a job in which he might dem- onstrate better performance and not risk losing his job if his errors continue. Sobiech told me he was not interested in moving to Packaging. As with Cassel, I cannot conclude that Mayer’s comment to Sobiech constituted an offer of a job in a different department. J. Discipline of Donna McCall Donna McCall was hired by the Respondent in 2002 and re- mained employed until September 18, 2005. She took an ex- tended medical leave from January 23 to April 27. During her approximately first 2 years with the Respondent, McCall was employed as a sanitation worker. During the balance of her time with the Respondent, McCall was employed as a BPO. As is conceded by the Respondent in its brief, the Respondent learned McCall was active in the Union when it received the Union’s February 7 letter naming her and others as members of the Union’s organizing committee. McCall was also named as a member of the Union’s organizing committee in the Union’s second letter to the Respondent, and her signature appeared in the “Vote Yes” letter. On July 27, the Respondent issued a final written warning to McCall. The warning memo was entitled, “Final Warning— Unacceptable Conduct: Insubordination and Racially Offen- sive Remarks.” What follows are my factual findings as to the incident that led to the discipline, based on the largely noncon- tradictory testimony as to the incident of McCall and Blanquel. On July 18, Blanquel, the Respondent’s shift manager, be- came aware that the Respondent was short handed in the pack- aging room. Blanquel called Raul Lara, lead person in the mixing room, and asked Lara to send the “free person” to the packaging room.68 Lara responded that McCall “was just cleaning the oil room.” Blanquel instructed Lara to send McCall to the packaging room. Blanquel testified that boxes needed to be made in the packaging room because the produc- tion line couldn’t be stopped, and if there were no boxes, prod- uct could be wasted or thrown away, and that it was, thus, an emergency. At the time Blanquel called Lara, McCall was cleaning a spill in the oil room. Lara went to the oil room and told McCall that she “had to go to packaging.” McCall responded, “You got to be kidding me.” Lara told her that he wasn’t kidding her. McCall said, “Let me finish what I started [cleaning the spill].” Lara told her she had to go right then. McCall responded that she thought “it was bullshit, that there were other BPO’s that he could have took and I feel like I’m being treated like a nigger69 68 Blanquel testified that there was usually one free person in the mixing room, apparently an employee without immediately pressing duties. 69 In order to avoid burdening this decision with repeated use of the slur, I have chosen to use the euphemism “N-word” hereafter. around here.” McCall eventually threw down the squeegee she had been using and walked towards packaging. At this point, after waiting for about 15–20 minutes, when nobody from the mixing room appeared in the packaging de- partment, Blanquel walked towards the mixing room to see what the problem was. Blanquel arrived in time to see Lara and McCall speaking, and McCall throw the squeegee. Lara told Blanquel what McCall had said to him. Blanquel and McCall then walked through the mixing room to get to the packaging room. McCall stopped along the way and spoke to another employee.70 Blanquel told her, “I told you I wanted you to go to packaging.” McCall told Blanquel, “You always treat me like a [“N-word”].” Blanquel asked her, “Why did you even say that. If you didn’t want to go I can send somebody else or something. There is no reason for you to treat me this way.” McCall then walked to the packaging room and began perform- ing the requested work. A few hours later, McCall walked up to Blanquel and said, “I’m really—I was so hot. I was so angry about the situation. I apologize for what I say.” I didn’t mean the “N-word”71 like you think I meant the word.” Blanquel responded, “Well, it was offensive for me because I’m a minority too, you know. I’m Mexican.” McCall responded, “Well, I’m an Indian.” On July 27, 9 days later, Blanquel, accompanied by Supervi- sor Jerry Bequest, told Human Resources Vice President Mayer of the incident involving McCall, Lara, and Blanquel. Blanquel told Mayer that McCall had made a racially offensive remark to him and Lara. Blanquel described the incident to Mayer.72 Mayer asked Blanquel questions about the incident.73 Mayer told Blanquel and Bequest that he thought a disciplinary action was appropriate for something “so offensive.” Blanquel and Bequest agreed. Mayer asked why they waited 9 days to tell Mayer of the incident. Blanquel responded that he had to think about it because it was something that was upsetting, but he also wanted to make sure he wasn’t reacting because of that upset. Mayer told Blanquel that he should have told Mayer of the incident when it happened. Mayer, Blanquel, and Bequest agreed to a disciplinary final warning, but Mayer decided to also speak to Lara before imposing the discipline. That same day, Mayer spoke to Lara about the incident. Lara told Mayer that Blanquel had asked him to send McCall from the mixing room down to the packaging room, and that when he told her to go to the packaging room she said, “Why do you always treat me like an ‘N-word?’” Lara also reported that McCall threw down the squeegee. Lara told Mayer that he was bothered by the incident, that he had never treated McCall 70 McCall did not remember talking to an employee along the way. I credit Blanquel, who demonstrated good recall as to this incident, but there is no substantive significance to whether or not McCall paused to speak to an employee. 71 It’s not clear from the record if McCall here, used the actual slur “nigger,” or used the euphemism, “the N-word.” I had asked the wit- nesses not to burden the record by continuously using the slur after the first use, and it’s unclear whether Blanquel, in his testimony, was sim- ply following my instructions or accurately quoting McCall. 72 The record does not contain the words Blanquel used to describe the incident. 73 The record does not detail the questions Mayer asked. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 568 with anything but respect, and that he couldn’t figure out why she would say something like that to him. After speaking to Lara, Mayer asked Blanquel and Bequest to bring McCall to his office. When they arrived at his office, Mayer told McCall what he had been told about the incident and what she was reported to have said. Mayer asked her if she, in fact, had said the words she was accused of. McCall admitted she said the words. Mayer told her it was inappropri- ate. McCall responded that she didn’t mean it like it sounded. McCall said she was being taken to a different area several times and felt like she was being treated like an [“N-word”]. Mayer told her that the words were inappropriate regardless of the intention, that when she utters a remark like that, the people she says the words to don’t know her intentions, that it was a violation of the Respondent’s rules, that there was never a cir- cumstance that it would be tolerated, and that type of thing could be a dischargeable offense. Mayer told McCall that she was receiving a disciplinary warning, and McCall then apolo- gized to everybody present. Mayer told her that if it ever hap- pened again she would lose her employment. Finally, Mayer told her that her objection to going to another job was unac- ceptable and bordered on insubordination.74 While admitting that she used the “N-word” as described above, McCall testified that Blanquel had also used the “N- word” on at least two prior occasions in conversations with McCall at work. McCall testified that a few years earlier, Blanquel used the “N-word” in referring to a supervisor that Respondent was about to hire. McCall also testified that Blan- quel used the “N-word” in early July, in the presence of lead packaging machine operator Mike Stanford, and that she was “pretty sure Greg was there.” The reference to “Greg” is ap- parently a reference to Gregory Glyzewski, who was, at the time, employed by the Respondent as a BPO (baking process operator). According to McCall, “he kept calling her the “N- word” over and over.” McCall testified that Blanquel’s alleged use of the slur was directed at Jackson, and that the conversa- tion occurred by the picnic tables outside the plant. Stanford testified that he never heard Blanquel use the “N- word.” Blanquel testified that he never used the “N-word” at work, that he never used the “N- word” in reference to Jackson, that he never heard anybody else use the “N-word” in reference to Jackson, and that the only person he ever heard use the “N- word” at work was McCall. Gregory Glyzewski, who voluntarily left the Respondent’s employ in August, and who was employed as a BPO and was a member of the Union’s organizing committee during the organ- izational campaign, testified he was present during a conversa- tion at the picnic table outside the plant with himself, Blanquel, and Stanford in July 2005. Glyzewski testified only that the three of them were present, and did not mention McCall. Glyzewski testified that during the conversation, Stanford said, “um, something to the effect of, uh—that Marlenea is nothing but a big, fat ‘N-word.’” Glyzewski further testified that after 74 Most of my finding as to this discussion is based on the credited testimony of Mayer. McCall also testified as to this conversation, but her testimony was not as detailed as Mayer’s. Their testimony was not inconsistent on any significant detail of the conversation. Stanford spoke, Blanquel “kinda chuckled.” Stanford, who denied that he ever heard Blanquel use the “N-word,” also de- nied that he ever used the word during his employment with the Respondent, denied that he ever used the word in Blanquel’s presence, and denied that he ever used the word to describe Jackson. There is no evidence that Blanquel or Stanford was ever disciplined in connection with using the “N-word.” Based on the above discussion, my assessments of the rele- vant witnesses, and the weight of the evidence, I cannot con- clude that either Blanquel used the “N-word” at work or that Stanford used the word in Blanquel’s presence. All of the wit- nesses, to some extent, had a vested interest in their testimony, as Jackson and Stanford are current employees, Glyzewski was a former employee but an active supporter of the Union during his tenure, and McCall stands to have discipline removed from her record should the General Counsel be successful in this litigation. Significantly,75 Glyzewski’s testimony, similar in some re- spects, differed from McCall’s in two key aspects; that is, that McCall places herself at the Blanquel/Stanford conversation, while Glyzewski testified that only he, Blanquel, and Stanford were present, and Glyzewski testified that Stanford used the slur in Blanquel’s presence while McCall testified that Blan- quel used the slur in Stanford’s presence. While there could have been two different conversations, certain details of their testimony, including the approximate date of the conversation and its location, make it appear that they were testifying as to the same conversation.76 Thus, McCall testified that the con- versation she heard occurred 2 or 3 weeks before her July 27 discipline. Glyzewski testified that the conversation he heard occurred in July. Both testified that the conversation they heard occurred at the picnic tables outside the plant. Both testified that Stanford was present. Both testified that Jackson was the subject of the slur. Further, McCall admitted that in the investigatory affidavit she gave to the Board during the investigation she never men- tioned that she had heard Blanquel use the “N-word” in the past at work, and at no step of the disciplinary procedure did McCall defend herself by alleging that Blanquel had used the same slur. Based on the similarities, I find that McCall and Glyzewski were testifying to the same conversation. Based on the signifi- cant inconsistencies in their testimony and McCall’s failure to mention in her affidavit that she had heard Blanquel use the slur at work, and because Blanquel’s demeanor was relatively more impressive, I find his testimony here more reliable than that of McCall or Glyzewski. McCall and Glyzewski were not unim- pressive witnesses in demeanor, but the key inconsistencies in their testimony lends significant doubt to their credibility. 75 Significant, because if McCall wasn’t present at this conversation, then her testimony as to this conversation is not credible, and resultant doubt is thrown on the rest of her testimony. McCall testified that she was “pretty sure Greg was there.” But the issue as to credibility is not whether Gregory Glyzewski was present, but whether McCall was present. 76 While McCall, in answering the General Counsel’s questions, does not use Blanquel’s name in testifying as to who spoke the offend- ing words, the context and sense of her testimony makes it clear she is speaking of Blanquel. BAPTISTA’S BAKERY, INC. 569 Analysis and Conclusions A. Preelection Alleged 8(a)(1) Actions: Solicitation of Grievances and/or Promises of Benefits Counsels for the General Counsel argue that Gardetto, in her speech of February 18, solicited grievances and promised benefits in violation of Section 8(a)(1). The General Counsel also maintains that further solicitation of grievances and/or promises of benefits occurred as follows: the captive audience speech held by Olson and Blanquel, Olson and Blanquel’s con- versation with Mankin and Cassel, the conversation between Gardetto and Mang, the conversation between Blanquel and Carvalho, and the conversation between Mang, Sparks, and Blanquel.77 The Board’s test for interference, restraint, and coercion un- der Section 8(a)(1) is an objective one, and depends on “whether the employer engaged in conduct which, it may rea- sonably be said, tends to interfere with the free exercise of em- ployee rights under the Act.” American Freightways Co., 124 NLRB 146, 147 (1959). The Board has long held that, in the absence of a previous practice of doing so, the solicitation of grievances by an employer during an organizational campaign violates the Act when the employer promises to remedy those grievances. See, e.g., Uarco, Inc., 216 NLRB 1, 2 (1974). The solicitation of grievances alone is not unlawful, but it raises an inference that the employer is promising to remedy the griev- ances. Blue Grass Industries, 287 NLRB 274 fn. 4 (1987). This inference is particularly compelling when, during a un- ion organizational campaign, an employer that has not previ- ously had a practice of soliciting employee grievances institutes such a practice. Amptech, Inc., 342 NLRB 1131, 1136 (2004). While an employer who has had a past practice and policy of soliciting grievances may continue to do so during an organiza- tional campaign, an employer cannot rely on past practice if it “significantly alters its past manner and methods of solicitation during the campaign.” House of Raeford Farms, 308 NLRB 568, 569 (1992), enfd. mem. 7 F.3d 223 (4th Cir. 1993), cert. denied 511 U.S. 1030 (1994). B. Gardetto Speech The General Counsel, in paragraph 8(a) of the complaint, re- ferring to her captive audience speech, alleged that Gardetto “solicited grievances and made promises of benefits.” Gardetto’s speech sent a strong, personal, and very emotional message to employees of her feelings against the Union. In their brief, counsels for the General Counsel concede that “not every word that Ms. Gardetto said was unlawful.” The only 77 In their brief, counsels for the General Counsel argue that Lepak’s statement in his captive audience speech, to the effect that Respondent had made mistakes and wanted to do better, was a solicitation of griev- ances and promise of benefits, but acknowledge that there was no such allegation in the amended consolidated complaint introduced at the hearing. Counsel’s for the General Counsel take the same position as to the nonalleged statement of Mayer to Carvalho concerning his vaca- tion days. Inasmuch as counsels for the General Counsel did not move to amend the complaint to add these allegations, I will make no conclu- sions of law as to either conversation, but did include them in my fac- tual findings. two passages in her speech that arguably solicited grievances are as follows: (1) “that she was human and had made mistakes but wanted employees to come to her so she could fix them, that she was not too proud to hear what they needed and to make the changes that they needed, that she was going to be more available in the plant and more conscious and aware of what was going on, and would actively participate in ensuring that the changes needed would happen”; and (2) that her door was always open if employees had any questions or concerns. In her speech, Gardetto made generalized comments about things improving, but also made specific promises that commu- nication with employees would improve, and “that she was committed to having Tom Mayer focus on attending to employ- ees’ needs again, and committed to creating opportunities for collaboration and communication on goals, and celebrating employee successes.” In his brief, the Respondent’s counsel concedes Gardetto’s comments about improving communica- tions and her open door invitation to employees for questions and concerns, but argues that Gardetto did not link her efforts to improve communication to the outcome of the organizing campaign and that “she did not say that the results of the elec- tion would affect her efforts to improve communication with employees.” Based on the above, and my finding of facts, I conclude that in the context of an emotional personal speech about February 18 from the Respondent’s highest official, geared to defeating the Union’s organizational attempt, and without evidence that Gardetto’s invitation and promises were merely a continuation of past policy, her linking of an invitation to employees to talk to her about any questions and concerns with promises to im- prove communications, to have Mayer focus on attending to employees’ needs, and to celebrate employee successes,78 con- stituted a solicitation of grievances and either a direct or im- plied promise of remedy, in violation of Section 8(a)(1). See, for example, Center Service System Division, 345 NLRB 729, 729–730 (2005). I reject Respondent’s characterization in its brief that Gardetto’s “commitment to improve communication was nothing more than a commitment to return to the open communication the Company had enjoyed for most of its exis- tence.” In reality, the brief’s characterization is a concession that Gardetto’s comment was a promise to change from the then current policy, back to the policy that had allegedly existed at an earlier time. Further, while there is evidence that on occa- sion, lower level supervisors may have asked employees for suggestions in the past, this is a far different scenario than a speech from the Respondent’s highest official. Further, I disagree with the argument in the Respondent’s brief that the Board’s decision in Curwood, Inc., 339 NLRB 1137, 1139–1140 (2003), stands for the proposition that “open invitations for employees to present questions or concern is not an unlawful solicitation of grievances.” In Curwood, the Board weighed the meaning of the following communiqué (in perti- nent part) from the employer to its employees: “If you have questions, I highly encourage you to write them down and re- 78 As to celebrating employee successes, see also my finding that the Respondent made good on this promise by its institution of an em- ployee-of-the-year award with concomitant cash award. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 570 turn them in the envelope provided.” As to the passage, the Board held, “The context of the letter as a whole reasonably suggests that the Respondent was soliciting questions about the mechanics of the election process and about its own views con- cerning unionization.” Thus, rather a setting forth an all- encompassing general rule, the Board simply ruled that in the context of the entire letter the quoted passage did not imply a promise to resolve their grievances. I concluded here to the opposite; that in the context of the entire speech, Gardetto’s invitation conveyed an implication that grievances raised would be resolved. C. Gardetto Conversation with Mang The General Counsel alleged in paragraph 8(b) of the com- plaint that in March, Gardetto promised an employee “things would get better around the facility.” As found, about 2 weeks before the election, Gardetto initiated a conversation with Mang in which she told Mang that “things will be getting better” at the facility and that Respondent “maybe” was going to go back to offering anniversary awards to employees. Respondent, in its brief, argues that “. . . Gardetto did not elaborate on what would get better, nor did she make any promises.” I conclude that, in fact, Gardetto did elaborate on what would get better by implying that the Respondent would revert to a policy of pro- viding employees with anniversary awards. I agree with the Respondent’s argument in its brief, citing the Board’s decision in MacDonald Machinery Co., 335 NLRB 319 (2001), that general, nonspecific, comments about an em- ployer’s desire to make things better, without more, do not constitute an unlawful promise in violation of Section 8(a)(1). See also National Micronetics, 277 NLRB 993 (1985), where the Board found the statements at issue to be “too vague to rise to the level of illegal promises of benefits,” and noted that “[t]he statements do not promise that anything in particular will happen.” Here, however, Gardetto went beyond a general as- sertion that “things will be getting better” and coupled those words with a specific reference to reinstituting anniversary awards. I conclude that such words implied a promise of bene- fits in violation of Section 8(a)(1). Further, as noted above, there is no evidence that Gardetto, the Respondent’s highest official, engaged in such solicitation of employee grievances prior to the organizational campaign. This is not a continuation of a past practice as, for example, found by the Board in Ameri- can Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347 (2006). D. Olson and Blanquel Captive Audience Meeting The General Counsel alleges, in paragraph 10(a) of the com- plaint, that Olson and Blanquel solicited grievances at a meet- ing. In their brief, counsels for the General Counsel argue that the following, which they assert occurred at a captive audience meeting, constitutes a solicitation of a grievance and a promise of a benefit: “He [Olson] said that he and Blanquel were striv- ing very hard with Lepak to change things around there and make them better.” In my findings of fact, I found that Olson also told the assembled employees that “the Respondent had made mistakes but that he, Blanquel, and Lepak were trying to change things and make them better and treat them fairly like by giving them enough advance warnings of shift changes.” Based on my findings of fact, and the record as a whole, there is no evidence that Olson or Blanquel solicited grievances at this meeting, and I conclude that they did not. Olson did advocate against the Union at his captive audience meetings, and did tell the assembled employees that the Respondent had made mistakes but that “he, Blanquel, and Lepak were trying to change things and make them better and treat them fairly like by giving them enough advance warnings of shift changes.” But the General Counsel does not allege in the complaint intro- duced at trial that such constituted an illegal promise of benefit, and there was no motion to so amend the complaint. I, thus, decline to find such a promise of benefit, and because such findings would, in any case, be redundant in view of my other conclusions herein. E. Olson and Blanquel Conversation with Mankin and Cassel In paragraph 9(d) of the complaint, the General Counsel al- leges that Blanquel solicited grievances and promised benefits after a meeting. In paragraph 10(b) of the complaint, the Gen- eral Counsel alleges that after a meeting, Olson and Blanquel solicited employee grievances. As found, after a captive audi- ence meeting at which they advocated against the Union, Olson and Blanquel spoke with employees Mankin and Cassel. Blan- quel and Olson told Mankin and Cassel that they “wanted to make things better,” and asked them if they “had any ideas on how to improve.” After Olson and Cassel left, Blanquel again asked Mankin if she had any ideas on how the Respondent could improve and told Mankin that he would take her and a companion out to dinner and would pay for it so they could discuss any ideas she had. The General Counsel alleges in complaint paragraph 10(b) that these comments by Olson and Blanquel were illegal solicitation of employee grievances. The Respondent maintains that Blanquel was doing nothing differ- ent from what he has done over the course of his employment as a supervisor, that is, solicit suggestions from employees, and cites Wal-Mart, Inc., 339 NLRB 1187 (2003), for the proposi- tion that an employer who has a past policy and practice of soliciting employees’ grievances may continue such a practice during an organizational campaign. I find that Blanquel’s and Olson’s comments to Mankin and Cassel constituted illegal solicitation of grievances in violation of Section 8(a)(1). The solicitation of grievances was accom- panied by statements that the Respondent wanted to make things better, and followed a captive audience meeting at which the employees were urged to oppose the Union. Additionally, Blanquel even offered to pay for dinner for Cassel and a com- panion as part of the solicitation. Respondent’s argument is accurate in that Blanquel had previously solicited suggestions from employees, but those solicitations were clearly of a differ- ent character, in a different context, and did not involve dinner invitations. As noted, the Board has ruled that an employer cannot rely on past practice if it “significantly alters its past manner and methods of solicitation during the campaign.” House of Raeford Farms, supra. The solicitations here were clearly not geared to work processes, were accompanied by BAPTISTA’S BAKERY, INC. 571 antiunion rhetoric, and included offers to pay for dinner. Under these circumstances, they were not a continuation of past prac- tice, and were illegal. F. Blanquel and Sparks’ Conversation with Mang The General Counsel alleges in paragraph 9(a)(v) of the complaint that shortly before March 23 Blanquel “solicited grievances and thereafter made changes in response to those grievances.” I found that about 2 or 3 weeks before the March 23 election Mang met for about 10 minutes in a supervisor’s office with Supervisors Blanquel and Sparks. In the course of a conversation during which Blanquel and Mang engaged in antiunion rhetoric, Blanquel asked Mang for suggestions to “make the company better.” Mang responded with a sugges- tion that there should be job postings with a signup sheet. Sub- sequent to this conversation, such a signup sheet was posted on the bulletin board in the lunchroom and stayed posted for a week or two. I also found that on previous occasions, prior to any union activity, Blanquel had solicited ideas from employ- ees under his supervision, but those solicitations were geared to production processes. Finally, I found that the Respondent had posted job openings in the past in 2000, 2002, and sometime in 2004, but not in 2005. I agree with the Respondent’s argument that, as to Blan- quel’s solicitation of Mang, there is insufficient evidence in the record from which I can conclude that Blanquel’s solicitation was a deviation from past practice. I have found that in the past, before any union organizational activity, Blanquel solic- ited suggestions from employees, and put some of those sug- gestions into effect. As in the Board’s Wal-Mart decision, supra, the issue here is whether during the campaign the Re- spondent solicited grievances in a manner that was significantly altered from its past manner and methods. Here, the only dif- ference in Blanquel’s solicitation of grievances from Mang, from what Blanquel did in the past, was to accompany the so- licitation with antiunion rhetoric, none of which is alleged to violate the Act. There is no evidence in the record as to whether the Respondent acted quicker to resolve Mang’s griev- ance than it had in the past to resolve grievances presented to Blanquel. I, thus, conclude that Blanquel’s solicitation of Mang was not a significant change from his practice prior to any union organizational activity, and did not violate the Act. G. Other Preelection Alleged 8(a)(1) Violations 1. Blanquel’s conversations with Carvalho and Karboski The General Counsel alleges in the complaint that the fol- lowing violations of Section 8(a)(1) were committed by the Respondent’s supervisor, Blanquel, during the preelection cam- paign period, and at trial and in their brief counsels for the General Counsel maintained that the violations occurred during conversations Supervisor Blanquel had with employee Car- valho as follows: (1) complaint paragraph 9(a)(i)—shortly be- fore March 23 told an employee that he would lose his seniority and vacation because if the Union came in everything would start from zero; (2) paragraph 9(a)(iii)—shortly before March 23 told an employee that the union organizing campaign was preventing him from receiving increased pay; (3) paragraph 9(a)(iv)—shortly before March 23 told an employee that he would receive a benefit by having his vacation restored; and (4) paragraph 9(c)—on or about mid-February made threats of plant closure. Counsels for the General Counsel further main- tain in their brief that Respondent violated Section 8(a)(1) as alleged in complaint paragraph 9(b) by Blanquel’s comments in a conversation with Karboski. I found that in mid-February Blanquel told Carvalho that he would lose his vacation and seniority because if the Union came in everything would start from zero, and the owner would close down the plant. I further found that about a week to 10 days after the mid-February conversation, Carvalho asked Blanquel why he wasn’t receiving lead pay, and that Blanquel responded that “we were in the process of union campaign.” I also found that near the end of February Carvalho complained to Blanquel that he had received remuneration for 2 days of pay in lieu of vacation when he had not requested such, that Blan- quel had responded that it was supposed to be that way, “new administration, new management,” that in mid-March Blanquel told Carvalho that Carvalho was right that he didn’t have to take the vacation days, and that Blanquel had Carvalho sign a form to pay the vacation remuneration back to the Respondent and restore his vacation days. I further found that about 3 weeks before the election, Blan- quel told Karboski that he wanted to give her his take on the Union; that he didn’t believe in unions, and that it’s not always the way they say it’s going to be. Blanquel said that in the bargaining, the parties could start from zero and employees could lose their vacation. As to “start from zero,” it is well settled that employer statements to employees during an organizing campaign that bargaining will start from “zero” or from “scratch” are “dan- gerous phrases” which carry within them “the seed of a threat that the employer will become punitively intransigent in the event the union wins the election.” Coach & Equipment Sales Corp., 228 NLRB 440 (1977). “Although such statements are not per se unlawful, the Board will examine them, in context, to determine whether they ‘effectively threaten employees with the loss of existing benefits and leave them with the impression that what they may ultimately receive depends in large measure upon what the union can induce the employer to restore,’ or- conversely-whether they indicate that any ‘reduction in wages or benefits will occur only as a result of the normal give and take of collective bargaining.’” Federated Logistics & Opera- tions, 340 NLRB 255 (2003), quoting Plastronics, Inc., 233 NLRB 155, 156 (1977). Blanquel’s further threat during the same conversation that the owner would close the plant, adds further context to the “start from zero” comment, and also vio- lates Section 8(a)(1). I conclude that Respondent violated Section 8(a)(1), as al- leged in complaint paragraph 9(a)(i), when Blanquel told Car- valho in mid-February79 that he would lose his vacation and seniority if the Union came in because everything would start from zero. Blanquel’s comment is not simply an explanation as to how collective bargaining works, but a bald threat to Car- 79 Carvalho credibly testified that this conversation occurred in mid- February rather than the March 23 date pleaded in the complaint. The issue was fully litigated and I perceive no prejudice to the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572 valho. I further conclude that Blanquel’s comment, in the same conversation that the owner would close down the plant to be a threat in violation of Section 8(a)(1). Evergreen America Corp., 348 NLRB 178 (2006). I find no separate violation as alleged in complaint paragraph 9(b).80 As to Blanquel’s response to Carvalho’s question about his pay raise, “it is well settled that, in deciding whether to grant benefits while a representation election is pending, an employer should act as if no union were in the picture.” “Thus, if an employer withholds wage increases or accrued benefits because of union activities, and so advises employees, it violates the Act. However, where employees are told expected benefits are to be deferred pending the outcome of an election in order to avoid the appearance of election interference, the Board will not find a violation of the Act.” Centre Engineering, Inc., 253 NLRB 419, 421 (1980) (citations omitted). Here, Blanquel’s response to Carvalho’s question about his pay raise was not made in the context of an explanation that the pay raise was being withheld to avoid influencing the outcome of the elec- tion. As a result, Carvalho would have been left with the im- pression that but for the Union’s campaign he would have re- ceived a pay raise. I, thus, conclude that the Respondent vio- lated Section 8(a)(1) when Blanquel told Carvalho that, in ef- fect, Carvalho was not receiving his pay raise because of the union campaign. As to Blanquel’s comments and Respondent’s actions sur- rounding the remuneration to Carvalho in lieu of vacation days, even in the context of the other unfair labor practices found herein, I cannot conclude that such violated Section 8(a)(1) or was caused by anything more than an apparent mistake and then correction of the mistake, made by Respondent in respect to its vacation pay policy. Blanquel admitted the mistake in the application of the policy to Carvalho, and then corrected the mistake by allowing Carvalho to repay the Respondent, and regain his vacation days. In the absence of contrary evidence, the Respondent’s explanation makes sense, and I will not find its actions motivated by the organizational campaign based only on the animus and other unfair labor practices found herein. 2. Lepak’s captive audience meeting, and conversation with Mang The General Counsel’s complaint alleges as violations of Section 8(a)(1) the following actions of then Vice President of Manufacturing Brett Lepak: (1) in paragraph 11(a) that Lepak, during a captive audience meeting in February, “said that the Respondent wanted employees with good attitudes and that they were trying to move forward”; (2) in paragraph 11(c) that “shortly before March 23,” Lepak stated in a captive audience meeting that if “the Union won the election, the Employer could not grow”; and (3) in paragraph 11(b) that in about mid- February Lepak “told an employee that the Employer was look- ing for workers that don’t cause trouble or open their mouths 80 Complaint par. 9(a)(i) mentioned “seniority and vacation” being threatened. Complaint par. 9(b) mentions only vacation being threat- ened. I find no violation as alleged in complaint par. 9(a)(ii), a similar allegation, as there is no evidence to support said allegation. that much about stuff.” In their brief, counsels for the General Counsel point to record evidence concerning a mid-February conversation between Lepak and employee Mang in support of the latter allegation. I found that during the course of the organizational cam- paign, Lepak gave a speech or speeches as part of the Respon- dent’s campaign against the Union, and that Lepak told the assembled employees that the Company was doing well and not headed for more layoffs, that he didn’t care whether the em- ployees had a union or not but that the Company couldn’t grow with a union, and that the Respondent wanted to move ahead with people with good attitudes. I also found that Lepak told the assembled employees that they shouldn’t forget to vote and that whether an employee voted “yes” or “no,” it wouldn’t be held against them. Counsels for the General Counsel argue in their brief that Lepak’s comment as to the Respondent not being able to grow with a union violated the Act, and that his coupling of his com- ment about no more layoffs with his comment of moving ahead with people with good attitudes would cause employees to fear that to achieve no layoffs they would have to demonstrate good attitudes, meaning not supporting a union. Respondent’s coun- sel, in his brief, concedes that Lepak told employees that “the Company wanted to move forward with workers who had a good attitude” but maintains, as to these alleged violations, that in the context of everything Lepak said to the assembled em- ployees, including that he didn’t care whether or not the em- ployees had a union, and that the Respondent would not hold anything against an employee no matter how he/she voted, Lepak’s words were not coercive. I conclude that Lepak violated Section 8(a)(1), as alleged, when he told the assembled employees that the Company could not grow with a union and that the Company wanted to move ahead with people with good attitudes. The Board has viewed the usage of certain words in respect to union or protected con- certed activity to be code words for that activity. See Phillips Petroleum Co., 339 NLRB 916 (2003). “Attitude” is such a word. See Bronco Wine Co., 256 NLRB 53, 54 (1981). Here, Lepak’s reference to moving ahead with people with “good attitudes” coupled with his references to the Company not be- ing able to grow with a union conveys a coercive message to the assembled employees that good attitude meant not favoring a union and that such attitude was the key to avoiding future layoffs. Lepak mentioned that the Respondent was not headed to more layoffs, but the assembled employees knew full well that the Respondent a month or so earlier had permanently laid off employees. Urging employees to vote, telling them that how an employee voted would not be held against him/her, and that Lepak did not care whether the employees had a union or not, did not and could not ameliorate the veiled and unveiled threats contained in the rest of his message. I also find that Respondent violated Section 8(a)(1) when Lepak told employee Mang in mid-February that “[w]e have a good work force, they’re good workers and you don’t complain much.” Lepak’s comment, which equates being a good worker with not complaining, is coercive in that it occurred in the con- text of an organizing drive and a vigorous Respondent counter- BAPTISTA’S BAKERY, INC. 573 campaign, and followed on the heels of the Respondent’s per- manent layoff of other plant employees. 3. Mayer’s conversation with Karboski The General Counsel alleges in the complaint that the fol- lowing actions of Vice President of Human Resources and Op- erating Services Thomas Mayer on March 22 violated Section 8(a)(1): (1) paragraph 15(a)—“expressed his opinion whom the Union’s observer should be”; (2) paragraph 15(b)—“disparaged the Union by comparing it to a crack addict,” and (3) paragraph 15(c)—“by the conduct described above in paragraph 15(a), impliedly engaging in surveillance.” In their brief, counsels for the General Counsel rely on Mayer’s conversation with em- ployee Karboski to support these complaint allegations. Karboski was the Union’s observer at the election. I found that the day before the election, Mayer spoke to Karboski in the plant’s mixing room. Mayer said he had heard that Karboski was going to be the Union’s observer at the election. Karboski acknowledged she was the observer. Mayer said he was sur- prised the observer wasn’t Brzezinski. Karboski responded that she had picked her side early on and she was going to stick with it. Mayer responded, “I hope you know what you’re doing.” Karboski said that if it did not work out the employees could vote the Union out in a year. Mayer responded, “That’s what crack addicts think too, that they can get off of it.” Counsels for the General Counsel, in their brief, argue that Mayer’s comment about crack addicts was disparaging of the Union in violation of Section 8(a)(1), that Mayer’s comment about Brzezinski implied surveillance of union activity, and that Mayer’s comment that he “hoped that Karboski knew what she was doing” (not alleged as a violation in the complaint) was not “harmless.” The Respondent’s counsel, in his brief, main- tains that none of Mayer’s comments violated the Act, that Mayer did not use the word “union” nor specifically mention the Union in his “crack addict” comment, and that Mayer’s statement of his mistaken belief that Brzezinski would be the Union’s observer, instead of evidencing surveillance, demon- strated the opposite. Section 8(c) of the Act “implements the First Amendment” such that “an employer’s free speech right to communicate his views to his employee is firmly established and cannot be in- fringed by a union or the Board.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). It gives employers the right to ex- press their opinions about union matters, provided such expres- sions do not contain any “threat of reprisal or force or promise of benefit. Progressive Electric, Inc., 344 NLRB 426, 482 (2005). “Thus, an employer may criticize, disparage, or deni- grate a union without running afoul of Section 8(a)(1), provided that its expression of opinion does not threaten employees or otherwise interfere with the Section 7 rights of employees.” Children’s Center for Behavioral Development, 347 NLRB 35, 36 (2006). “Denigration of the union is insufficient to support a finding that the Respondent has violated the Act unless it is such as to threaten reprisals or promise benefits.” Children’s Center, supra, quoting Poly-America, Inc., 328 NLRB 667, 669 (1999). Here, Mayer’s “crack addict” comment was clearly not di- rected at the Union, but instead at Karboski’s belief that em- ployees could vote the Union out after a year if they were not happy. Inasmuch as it was not directed at the Union, it was not disparaging of the Union. Even if it were directed at the Union, Mayer was within his rights to express his nonthreatening, non- coercive, albeit strong, opinion.81 The Board’s test for determining whether an employer has created an impression of surveillance is whether the employee would reasonable assume from the statement in question that his union activities had been placed under surveillance. United Charter Service, 306 NLRB 150 (1992). “The Board does not require employees to attempt to keep their activities secret be- fore an employer can be found to have created an unlawful impression of surveillance . . . . Further, the Board does not require that an employer’s words on their face reveal that the employer acquired its knowledge of the employee’s activities by unlawful means.” Id. at 151. “The idea behind finding ‘an impression of surveillance’ as a violation of Section 8(a)(1) of the Act is that employees should be free to participate in union organizing campaigns without the fear that members of man- agement are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways.” Flexsteel Industries, 311 NLRB 257 (1993). I do not find that Mayer’s comment as to who was the Un- ion’s observer implied surveillance of union activity. As ar- gued by the Respondent’s counsel in his brief, it was well- known that Brzezinski was a strong supporter of the Union. Brzezinski was designated as a member of the Union’s organiz- ing committee in the February 7 union letter to the Respondent. During Gardetto’s captive audience speech, Brzezinski made comments to her supportive of the Union. Under these circum- stances, with Brzezinski’s support of the Union is no secret, it hardly suggests surveillance for the Respondent to be aware of such support or to suggest to Karboski that Mayer thought Brzezinski would be the Union’s observer. Viewed objec- tively, Mayer’s “observer” comment to Karboski would not reasonably have induced in her a fear that members of man- agement were peering over her shoulders. At most, Mayer’s comment was a sarcastic expression of his opinion. I, thus, conclude that Mayer’s comments to Karboski did not violate the Act as alleged. 4. Howe’s captive audience speech The General Counsel alleges in complaint paragraph 12 that about the second or third week in March, Tom Howe, Respon- dent’s president, told employees during a meeting that “the Company was finally making money and asked why they would want to ruin it by bringing in a third party.” Counsels for the General Counsel assert in their brief that Howe’s com- ment was a “statement that selection of the Union was having adverse consequences.” Respondent’s counsel, in his brief, characterizes this complaint allegation as implicitly alleging a threat of plant closure, and argues either that Howe did not say what he was accused of and/or that what he did say was a law- 81 While a strong antiunion atmosphere prevailed under the circum- stances of this case, including other violations of the Act (see, e.g., Ryder Transportation Services, 341 NLRB 761 (2004)), I cannot con- clude that Mayer’s crack addict comment was threatening. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574 ful expression of the Respondent’s opinion as to the Union, citing Mt. Ida Footwear Co., 217 NLRB 1011 (1975). I found that Howe told the assembled employees, in perti- nent part, that the Respondent had made a substantial capital investment, that Respondent’s sales had grown from $5 to $9 to $10 million a year, that the Respondent was committed to find- ing new products and customers to grow the business, that the Respondent was committed to make the business work by bet- ter training and communication with its employees, that he was asking the employees to support the direction the Respondent was going in, that union representation could become a hurdle by the restrictive rules of a union contract, and that bringing in a third party would wreck82 the progress. Howe’s wrecking or ruining the Respondent’s progress comment, is a clearly expressed prediction as to what would happen if the Union were to be successful. The standard for determining whether an employer’s prediction is an impermis- sible threat was set forth in NLRB v. Gissel Packing Co., supra at 618. The Board must focus on, “what did the speaker intend and the listener understand.” Id. at 619. Any evaluation of the speaker’s comments, therefore, “must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relation- ship, to pick up intended implications of the latter that might be more readily dismissed to the disinterested ear.” Id. at 617. In further explication, the Court in Gissel held: Thus, 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 force or promise of benefit.” He may even make a prediction as to the precise ef- fects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. If there is any im- plication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic neces- sities and known only to him, the statement is no longer a rea- sonable prediction based on available facts, but a threat of re- taliation based on misrepresentation and coercion, and as such is without the protection of the First Amendment. [Id. at 618. (Citations omitted).] Howe’s words here do not constitute a carefully based pre- diction based on objective fact. In context, they are words cal- culated to make the assembled, listening employees fear that the Respondent’s investment, efforts to find new business and products, and commitment to make the business work, would be torpedoed by an employee decision to choose union repre- sentation. Decisions to invest, try new products, and seek new business are within the control of the Respondent and are not demonstrably probable consequences beyond the Respondent’s control. Howe’s prediction that choosing a third party (e.g., union) would wreck or ruin the Respondent’s progress is a 82 Or “ruin.” coercive threat unsupported by any objective fact cited by Howe. I, thus, find that the Respondent violated Section 8(a)(1) by Howe’s words to the assembled employees. H. Disclosure of Confidential Employee Information from the Respondent’s Files The General Counsel, in complaint paragraph 13, alleges that shortly before March 23, various supervisors, in captive audi- ence meetings, offered to disclose confidential information to employees about an employee who had been permanently laid off. In paragraph 14(a), the General Counsel alleges that some- time in February, at a captive audience meeting, Supervisor Blanquel disclosed confidential information to employees about an employee who had been permanently laid off. In complaint paragraph 14(b), it is alleged that shortly before March 23, at a captive audience meeting, Vice President Mayer disclosed con- fidential information about an employee who had been perma- nently laid off. At trial, the only evidence introduced by the General Counsel on this issue had to do with the Respondent showing or offering to show employees, during the election campaign, a disciplinary writeup from the file of laid-off em- ployee Dennis Sobiech. In their brief, counsels for the General Counsel rely on the late February conversation between Blanquel and Carvalho as evidence in support of complaint paragraph 14(a) although they concede that the evidence demonstrated that Blanquel’s com- ments were made in a one-to-one conversation rather than, as alleged, at a captive audience meeting. Counsels for the Gen- eral Counsel compare Respondent’s actions in respect to the disclosure of the Sobiech disciplinary writeup to a campaign letter sent by the Respondent to its employees, apparently in respect to the Excelsior list requirement, in which Respondent said, “Baptista’s has always respected the privacy of our em- ployee’s personal information, and we apologize that in this instance we are required to release your personal information to the NLRB for the Teamsters without your permission.” Fi- nally, counsels for the General Counsel, in their brief, argue that, “[b]y Respondent’s actions and its earlier letter, employ- ees would perceive that a union organizing campaign and sub- sequent union success could lead to the disclosure of confiden- tial information by Respondent.” Counsels for the General Counsel cited no case law in support of this “chilling” argu- ment. Respondent, in its counsel’s brief, concedes that it engaged in some disclosure to employees during the campaign, vis-à-vis Sobiech’s personnel file, but that the disclosures are protected by Section 8(c) of the Act and Wisconsin State law. “Not only is Baptista’s limited disclosure protected by Section 8(c) of the Act, but it is protected by Wisconsin law as well.” The Re- spondent’s brief characterizes the evidence as to the Sobiech disclosure as “largely undisputed,” and concedes the following: that Supervisor Olson told employees at a captive audience meeting that he had a copy of Sobiech’s writeup with him, that Blanquel “offered to show employees the disciplinary writeup in which Mr. Sobiech had been encouraged to consider another position,” and that Blanquel offered to show employee Leslie Fintak a copy of Sobiech’s disciplinary writeup. BAPTISTA’S BAKERY, INC. 575 The Respondent, in its brief, argues that a number of em- ployees had raised questions during the campaign as to the fairness of the Respondent having permanently laid off Sobiech without having offered Sobiech a different position, and that the Respondent was just trying to alleviate those concerns. As these questions were raised, Olson asked Mayer why Sobiech had not been offered a different position. Mayer told Olson that Sobiech had been offered the possibility of moving to a different position at one time, and that this was documented in a writeup in Sobiech’s personnel file. At Olson’s request, Mayer provided him with a copy, which apparently is the copy Olson and Blanquel offered to show employees. The version of the facts as to the Sobiech disclosure issue contained in Respondent’s brief is largely consistent with my findings. I found that during an Olson captive audience meet- ing one or more employees brought up the Sobiech subject and asked why he had not been offered another position prior to his layoff, that Olson inquired of Mayer as to Sobiech, who gave Olson a copy of the Sobiech writeup which mentioned the pos- sibility of another job, and that both Olson and Blanquel of- fered to show this document to employees. I also found that towards the end of February Blanquel told employee Carvalho that he wanted to show Carvalho the Sobiech writeup, and he showed it to him. Finally, I found that a week or two before the election, in Mayer’s office, Mayer told employee Mang that Mayer knew the employees were kind of upset that the Re- spondent had let Sobiech go, but that he had been making mis- takes and Mayer was going to show Mang Sobiech’s personnel file showing that Sobiech had made mistakes in the past. Mayer then showed Mang a file that contained something about what a supervisor had written about Sobiech. I also found that during the course of the election campaign some of the Re- spondent’s employees had asked supervisors why the Respon- dent had not offered Sobiech another job before laying him off. Under these circumstances, I do not conclude that the Re- spondent’s offer to show or actually showing the Sobiech writeup containing language as to the possibility of another position to other employees during the course of the organiza- tional campaign chilled union activity or violated Section 8(a)(1). The information disclosed was limited to a single writeup from Sobiech’s personnel file and it was in legitimate response to employee questions to supervisors which arose during the course of the campaign. Based on this record, I can- not conclude that an employee would reasonably fear, based on Respondent’s actions vis-à-vis the Sobiech writeup, that his/her confidential information would be released by the Respondent if he/she engaged in union activity, or if the union was chosen to represent them. Accordingly, I conclude that the Respondent did not violate the Act as alleged in complaint paragraphs 13 and 14(a) and (b). I. Posting of No-Solicitation Rule The General Counsel alleges in paragraph 7(c) of the com- plaint that the Respondent violated Section 8(a)(1) by restating and promulgating an addition to its no-solicitation, no- distribution rule, in response to the union organizing drive. Counsels for the General Counsel contend, in their brief, that while the rule itself is “facially valid” the Respondent did not just post the then-current rule but added language as to discipli- nary consequences for violation of the rule. The Respondent maintains, in its counsel’s brief, that the outstanding rule is facially valid, that the language as to discipline in the newly posted rule is merely an “abbreviated summary of the preexist- ing disciplinary policy in Baptista’s handbook,” and, that in the absence of evidence that the rule was discriminatorily enforced, it was entitled to publish the rule. The Respondent asserts in its counsel’s brief that “[w]hen a company published a valid, pre- existing solicitation/distribution policy, and there has been no disparate enforcement of that policy, there has been no viola- tion of Section 8(a)(1),” but cites no case law in support. There is no allegation here that the rule as posted or as in the handbook is facially invalid. Unlike some cases, the Respon- dent does not assert that the posting of the existing, but largely dormant, rule was undertaken to preserve production and order and there is no evidence of such. Instead, as found, the evi- dence demonstrated that the rule was posted in the lunchroom solely in response to the union organizing campaign. While the Respondent’s argument that the posted rule does not represent a change from the existing handbook rule is ini- tially attractive and is accurate as far as it goes, it does not set forth the whole story. As found, the posted rule, unlike the handbook rule, includes explicit language as to violators being subject to discipline, up to and including discharge. Respon- dent’s counsel refers to such language as “an abbreviated sum- mary” of the existing handbook language as to discipline. But the handbook references discipline as progressive (acknowledg- ing that “there may also be instances where disciplinary action will not be progressive, depending on the severity and circum- stances of the situation”). The posted “abbreviated summary” makes no reference to progressive discipline. The Respondent, of course, could have included in the posting, language refer- encing readers to the current disciplinary policy included in the handbook, but chose to use the language it did, which made no reference to progressive discipline or to the current handbook policy. I have also found that Respondent did not enforce the no-solicitation, no-distribution policy either before or after the posting in the lunchroom. Inasmuch as the facial validity of the rule is not challenged here, the only issue is whether the Respondent’s posting of the rule in the lunchroom, with the additional reference to disci- pline, during the course of the Union’s campaign violated the Act. If the posted rule was just an amplification or clarification of the existing handbook rule, its posting may not have violated the Act. See Adams Super Markets Corp., 274 NLRB 1334, 1335 (1985). Here, however, there is no evidence that the preexisting rule was ever enforced and much evidence that it was not enforced at all. Further, the posted rule emphasized the possibility of discharge and other discipline for violation, whereas the hand- book rule is directly accompanied by no mention of discipline or discharge, and the handbook sets forth a policy of progres- sive discipline, a possibility not mentioned in the posted ver- sion. Finally, the Respondent presented no evidence that the posting was generated by the need to preserve order and pro- duction, but instead the evidence demonstrated that Respondent posted the rule solely as a response to union organizing. See, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576 for example, Harry M. Stevens, Inc., 277 NLRB 276 (1985). Under all these circumstances, I conclude that the posting in the lunchroom of a preexisting but unenforced rule, which empha- sized discipline out of context, served to chill union activity in violation of Section 8(a)(1), and such chilling was clearly the purpose of the posting, no evidence to the contrary. See City Market, Inc., 340 NLRB 1260 (2003), where in the context of a case involving the timing of the promulgation of a no- solicitation rule, the Board held, Where, as here, the rule has lain dormant for a substantial pe- riod of time, and is resurrected only in the context of a union campaign, there is a reasonable presumption or a nexus be- tween those two events. In addition, if the timing can be ex- plained by matters apart from the campaign, the Respondent, as the promulgator, is in the best position to adduce evidence of that explanation. Phrased differently, once it is shown that the rule was promulgated in the context of a union campaign, the burden of the explanation lies with the employer. I, thus, conclude that the Respondent violated Section 8(a)(1) by its posting of the rule, as alleged in paragraph 7 of the com- plaint. J. Postelection Allegations 1. Respondent’s March 23 letter to employees Complaint paragraph 18 alleges that the Respondent violated Section 8(a)(1) by soliciting grievances, in the letter to employ- ees from Gardetto and Howe on March 23, just after the elec- tion. Counsels for the General Counsel, in their brief, point to the following sentence contained in the letter as evidence of solicitation of grievances: “We realize that the greatest success comes when there is effective, continuous communication shar- ing of information, and employee participation.” Respondent’s counsel, in his brief, citing Curwood Inc., supra, maintains that “[n]owhere in this memo do Ms. Gardetto or Mr. Howe solicit grievances from employees.” In agreement with the argument of the Respondent’s counsel, I find no words in the letter soliciting grievances or even impli- edly soliciting grievances, and find that the Act was not vio- lated in this regard. However, the letter language cited by counsels for the General Counsel may be construed, there are no words from which I can conclude that grievances are being solicited, even in the context of the other solicitations I have found violative herein. Counsels for the General Counsel cite Seville Flexpack Corp., 288 NLRB 518 (1988), for the proposi- tion that an employer’s postelection solicitation of grievances and grant of benefits are unlawful, when “granted for union reason.”83 Seville, however, is inapposite in that it involved a postelection grant of a benefit explicitly to thank employees for voting against the union, a “Freedom Day” holiday. It is not alleged, and I would not find, that the letter at issue here con- veys a benefit upon employees. Further, I have found that there 83 “We find it unnecessary to rely on the implication in sec. II,E,4, par. 3 of the judge’s decision that whether or not an election is pending, the grant of a benefit explicitly for rejecting a union is unlawful. We note that the benefit in this case was granted during the period when objections to the election could still be filed.” supra at fn. 2. are no words in the Respondent’s letter which solicit griev- ances. Accordingly, I conclude that the Respondent did not violate Section 8(a)(1) as alleged in paragraph 18 of the com- plaint. 2. Employee-of-the-year award Complaint paragraph 17 alleges that on March 28, the Re- spondent granted a benefit in violation of Section 8(a)(1), by presenting an employee-of-the-year award, which included a $500 gift certificate to Sears. In his brief, the Respondent’s counsel argues that 2004 was a trying year for the Respondent in that employees worked long hours, that the recipient of the award, employee John Rautio, distinguished himself in the newly created job title of packaging machine operator (PMO) by his “willingness to learn, his desire and the amount of hours he was willing to work,” that there was no evidence that the award was presented to Rautio for any reason other than his job performance or for discriminatory reasons, and that the Re- spondent has a history of giving attendance awards to employ- ees each year. Finally, the Respondent argues that “[a] union organizing campaign should not prevent employers from rec- ognizing outstanding performance by individual employees.” Counsels for the General Counsel, in their brief, simply argue that giving the award constituted the granting of a benefit. I found that, in fact, the Respondent, on March 28, 5 days af- ter the election, awarded an employee-of-the-year prize consist- ing of a $500 gift certificate and a plaque to employee John Rautio, that the Respondent had never previously awarded an employee-of-the-year prize, and that in past years, and in 2005, it did award bonuses for perfect attendance. In the instant case, the entire postelection period, with objec- tions to the election still pending, is a critical period for the consideration of Respondent’s actions, such period character- ized by the Board as a “preelection context.” See Leland Stan- ford Jr. University, 240 NLRB 1138 fn. 1 (1979). The Board, in Honolulu Sporting Goods Co., 239 NLRB 1277, 1280 (1979), enf. 620 F.2d 310 (1980), cert. denied 449 U.S. 1034 (1980), analyzed the law as to the granting of benefits during the critical period as follows: The validity of wage increases or other benefits during the pendency of representation petitions turns upon whether they are granted “for the purpose of inducing employees to vote against the union.” And a lawful purpose is not established by the fact that the employer who took such action did not ex- pressly relate the granted wage increases to the organizational campaign. For as the Supreme Court observed in NLRB. v. Exchange Parts Company, [375 U.S.] 405, 410 (1964), “the absence of conditions or threats pertaining to the particular benefits conferred” is not “of controlling significance.” Un- der settled Board policy, a grant or promise of benefits during the critical preelection period will be considered unlawful unless the employer comes forward with an explanation, other than the pending election, for the timing of such action [some citations omitted]. Under the above-discussed circumstances here, I conclude that the Respondent granted the employee-of-the-year benefit for the purpose of inducing employees not to support the Un- BAPTISTA’S BAKERY, INC. 577 ion, and thereby violated Section 8(a)(1). These circumstances include the Respondent’s aggressive campaign against the Un- ion, the other unfair labor practices found herein, and the fact that the Respondent had never before provided such a cash prize for superlative employee performance. The Respondent argues that the award was granted after the election. But as Respondent acknowledged in its letter to employees posted the date of the election, just after the election, it was aware that the election was not final, and Board law holds that the preelection critical period extends to cover the disposition of challenges and objections. The attendance awards granted by the Respon- dent in the past are indeed benefits, but they are a different benefit than the cash award for employee-of-the-year, and are not a precedent for the granting of such new, different benefit. Finally, while Respondent argues that the employee-of-the-year benefit was granted for the legitimate business purpose of re- warding a deserving employee who went beyond the call of duty, it was created only after it was presented with the specter of union organization. In American Sunroof Corp., 248 NLRB 748 (1980), the Board held that “the granting of benefits during an election campaign is not per se unlawful where the employer can show that its actions were governed by factors other than the pending election. And the Board has further held that an employer can meet this burden by showing that the benefits granted were part of an already established company policy and the employer did not deviate from that policy upon the advent of the union.” Here, based on my finding of facts, I conclude that the grant of the employee-of-the-year cash award was motivated by the Union’s organizational campaign and not by factors other than the election. I reject the Respondent’s implied argument to the effect that recipient Rautio’s job performance in 2004 was so far superior to any employee’s previous job performance under whatever circumstances that it called out for the Respondent to create this award. 3. Milwaukee Brewers outing Complaint paragraph 16(a) alleges that the Respondent, in violation of Section 8(a)(1), “within a week or two after March 23,” granted employee benefits of free food and game tickets for the Milwaukee Brewers May 1 baseball game, and com- plaint paragraph 16(b) alleges that in conjunction with the baseball game, the Respondent provided free jackets to em- ployees. The Respondent maintains, in its counsel’s brief, that giving the free jackets to employees was part of an already established company policy which the Respondent did not de- viate from in that the Respondent had previously given items of clothing to its employees, and that the Brewers outing and jacket gift were for the Respondent’s business purpose of “team building” among its employees. I found that in early April the Respondent invited its plant employees and their guests to a Milwaukee Brewers baseball game, and included free tickets and food at the game. The outing took place on May 1, and “was a very expensive event.” In late April, the Respondent provided employees with their choice of a free jacket with Baptista’s logo and in a memo re- quested that the employees wear the jacket to the baseball game; “As we move Baptista’s forward it is important that we do so as one unified team.” The jackets cost the Respondent $2445.38. Again here, the issue is whether the outing and jacket bene- fits were granted for the purpose of inducing employees to vote against the Union, and the granting of benefits during an elec- tion campaign is not per se unlawful where the employer can show that its actions were governed by factors other than the pending election . Honolulu Sporting Goods Co., supra. The Respondent has demonstrated, and I found, that on some previ- ous occasions it has granted a free clothing benefit to employ- ees, free festival tickets, and has provided free Christmas lunches/dinners and associated items such as holiday turkeys. But although the previous free clothing benefit is difficult to compare to the free jacket benefit, it is clear that none of the other events (which generally included employees contributing food or drink in a “pot-luck” type fashion) was of the magni- tude of the very expensive baseball outing. The cost of the baseball outing and its timing becomes even more striking when compared with Gardetto’s testimony that the reason the Respondent had never before sponsored such an outing was because it was very expensive and the Respondent “wasn’t making money” and Mayer’s testimony that the Respondent was not making money during the time of the organizational campaign and was not consistently profitable until 2006. The Respondent, in its counsel’s brief, argues that when the Respondent sponsored the Brewers outing in 2005, it was moti- vated “by its desire to building a unified team out of its work- force, not a desire to interfere with employees’ exercise of their Section 7 rights.” This argument refers to my finding that the hiring of the “pasta people” in the summer of 2004 caused some hostility between that group and the preexisting Bap- tista’s employees and references the memo from the Respon- dent to its employees with the logo jacket which stated, “As we move Baptista’s forward it is important that we do so as one unified team.” But, in view of the Respondent’s extensive campaign against the Union, and a record here replete with evidence of the Respondent’s animus, including from its high- est officials, I conclude that the mention in the Respondent’s memo as to “moving forward as one unified team” more likely was a reference to moving forward after the election without the Union. Under all these circumstances, I conclude that the expensive baseball outing, at a time the Respondent was no better able to afford it than it was in previous years when it sponsored no analogous event, was intended to further inhibit employee sup- port for the Union, and that the Respondent has not established that said outing was governed by factors other than the pending election outcome. Accordingly, I conclude that the Respondent violated Section 8(a)(1) as alleged in complaint paragraph 16(a) by providing to its employees the Brewers outing benefit. I further conclude that providing the logo jackets did not violate the Act as alleged in complaint paragraph 16(b) as the Respon- dent has established a pattern of past benefits of a similar na- ture. 4. Two dinners for sanitation department employees Complaint paragraphs 20(a) and (b) allege that the Respon- dent violated Section 8(a)(1) by granting benefits to employees DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578 when Jackson took several employees to dinner at Famous Dave’s Restaurant, and also violated Section 8(a)(1) when Gardetto took several employees to dinner at Ingrilli’s Restau- rant. In his brief, the Respondent’s counsel argues that the dinners took place in June, months after the election, that the invited employees were members of the departments which had performed extraordinary work in preparation for the AIB audit, that there was no evidence that any comment “was made about the representation election at these dinners” or that the invita- tions depended on whether employees supported or opposed the Union, and that “[b]ased on the evidence which was presented, Baptista’s has proven that its motivation for these dinners was wholly independent of the Union’s organizing campaign.” The Respondent’s counsel further argues that in the past the Re- spondent has provided complimentary meals to employees. I found that in June, Jackson treated all of the sanitation and quality control department employees and their guests to a complimentary dinner at Famous Dave’s Restaurant for the stated purpose of thanking the employees for their work to- wards the AIB audit, and that about 2 or 3 weeks later, Howe and Gardetto took the same group to a complimentary dinner at Ingrilli’s Restaurant, that the price range for dinners at the two restaurants is $10 to $25 and higher, and that only the Ingrilli’s dinner included alcoholic drinks. Again, the test here is whether the two free dinner benefits were granted for the purpose of inducing employee disaffection with the Union, remembering that the granting of benefits dur- ing an election campaign is not per se unlawful where the em- ployer can show that its actions were governed by factors other than the pending election. Honolulu Sporting Goods Co., su- pra. Based on my finding of facts, and the above-discussed cir- cumstances, I conclude that the Respondent’s providing of two free restaurant dinners to the employees of the sanitation and quality control departments and their guests, violated Section 8(a)(1) in that it constituted the granting of benefits during the critical period for the purpose of influencing their union lean- ings. In reaching this conclusion, I do not ignore the Respon- dent’s argument that the dinners were for the purpose of thank- ing the employees for their work in preparation for the audit and that the Respondent had previously provided free meals to employees in the past. But what the Respondent did here was unprecedented in that there is no evidence that on any previous occasion the Respon- dent took employees and their guests to a restaurant for a free dinner or purchased alcoholic drinks at a restaurant for their employees, and this first and only occasion “happened” to fall during the critical period. In the further context, that these actions occurred in the midst of the Respondent’s aggressive campaign against the Union, expressed animus, and other un- fair labor practices, and the fact that the Respondent found it necessary to treat the employees to a restaurant dinner not just once, but twice, I conclude that the restaurant dinners were provided for the purpose of influencing employees during the critical period, and that the Respondent thereby violated Sec- tion 8(a)(1) as alleged in complaint paragraphs 20(a) and (b). 5. The Wehrley survey Complaint paragraphs 19(a)-(d) alleges that on April 22, the Respondent notified “all employees that they would be intro- duced to Team Building & Communications Consultant, Susan Wehrley,” that about May 10, Wehrley distributed surveys to employees, that as an inducement to return the completed sur- veys, employees were offered and given $10 gift certificates, and that the surveys, in violation of Section 8(a)(1), solicited grievances with the implied promise that wages, hours, and working conditions would be improved. In its counsel’s brief, the Respondent argues that it had previously utilized Wehrley’s services long before any union activity and that the record demonstrates that the Respondent had a legitimate business reason for utilizing Wehrley’s services as follows: “Unques- tionably, Ms. Wehrley’s assessments solicited employee feed- back and complaints. However, Baptista’s has a legitimate business justification for doing so.” In support of its argument that an employer may rebut the preliminary finding of unlawful solicitation of grievances by showing a legitimate business reason for the challenged prac- tice, the Respondent cites Torbitt & Castelman, Inc. v. NLRB., 123 F.3d 899, 907 (1997). Respondent also cites Leland Stan- ford Jr. University, supra at fn. 1, as an analogous case in which the Board concluded that an opinion survey rendered by an employer to unrepresented employees and soliciting their grievances concerning working conditions, does not violate the Act even during the critical period, where “the opinion survey was conceived for legitimate business reasons and was not designed in response or opposition to the Union’s organizing effort.” I found that Respondent retained Wehrley in January, after previously utilizing her services in 2000 and 2001 to work with the Respondent’s management in improving communication skills and blending management styles and manager’s person- alities. This previous consulting work did not involve plant employees subject to the current organizational effort. Wehrley met with the Respondent’s top managers, including Gardetto, on February 12 and Mayer’s e-mail following the meeting to all attendees, thanking them for attending the Saturday meeting, also addressed how supervisors should deal with employees during the course of the Union’s organizing drive. Wehrley met three times in February with the Respondent’s top man- agement and was informed at these meetings of the existence of the organizing drive, that management was concerned about the drive, that management wanted to know the cause of employees wanting a union, and management desired to have a union. Wehrley, herself, testified as to designing the employee survey that, “It wasn’t necessarily tied exactly to the union, but there was a concern about why are people disgruntled.” As discussed above, Section 8(a)(1) prohibits employers from soliciting employee grievances in a manner that interferes with, restrains, or coerces employees in the exercise of Section 7 activities. American Red Cross Missouri Illinois, supra. “An employer who has a past policy and practice of soliciting em- ployees’ grievances may continue such a practice during an organizational campaign,” Johnson Technology, Inc., 345 NLRB 762, 764 (2005), but an employer cannot rely on past practice to justify solicitation of grievances where the employer BAPTISTA’S BAKERY, INC. 579 “significantly alters its past manner and methods of solicita- tion.” Wal-Mart, supra (quoting Carbonneau Industries, 228 NLRB 597, 598 (1977). Here, the Respondent, prior to the Union’s organizational campaign, occasionally solicited suggestions or grievances, and the Respondent has, in the past, used Wehrley’s services. But, the Respondent never before circulated surveys among its plant employees within the unit that is the subject of the organiza- tional campaign and never before provided a benefit to employ- ees for completing surveys. Under the circumstances here, I conclude that the Respondent’s method of using surveys with incentives for completion is a significant departure from any past solicitation. Inasmuch as the solicitation occurred in the critical period84 and in the context of the unprecedented usage of a gift certifi- cate for completion of the surveys, Respondent’s aggressive campaign against the Union, and concomitant unfair labor prac- tices, I conclude that the surveys constituted a solicitation of grievances with inference of a promise to remedy in violation of Section 8(a)(1) of the Act. See, for example, American Red Cross Missouri-Illinois, 347 NLRB 347, 350–352, where the Board found the survey not to violate Section 8(a)(1), but in a context where the employer, before union organizational activ- ity, had utilized surveys to solicit employee grievances: “More- over, the Respondent’s use of a survey is consistent with its history of soliciting employee feedback with surveys.” Moreover, in light of Wehrley’s testimony to the effect that management wanted to know the cause of employees wanting a union and that she was looking to find out why employees were disgruntled, and the continuing pattern of unfair labor practices I have found herein, there is a clear nexus between the organi- zation drive and the survey. See Amptech, Inc., supra at 1137. Finally, while the Respondent advances its asserted need to build teams as a legitimate business reason for the surveys and argues that it deliberately waited until after the election to con- duct the surveys, I note that the Respondent did not “discover” its need to build teams and implement the surveys until it faced the specter of the Union’s organizing campaign, and that the survey was conducted during the critical period, at a time it was well aware of the nonfinality of the election and the Union’s continuing interest in organizing its employees. I, thus, con- clude that the Respondent has failed to rebut the inference that the survey was designed to correct the discontent that led up to the organizing drive and to ensure that the pending organization effort failed.85 Accordingly, I conclude that the Respondent violated Section 8(a)(1) as alleged in paragraphs 19(a)–(d) of the complaint. 84 Postelection, but while objections and determinative challenges were pending. 85 The instant situation is unlike that in Leland Stanford Jr. Univer- sity, supra, where the Board found, “The record is clear that for a con- siderable period of time, both prior and subsequent to the distribution of the survey, there was no active campaigning on the part of either the Union or the Respondents. . .” Here, the survey was distributed less than 2 months after the unresolved election and the record does not suggest that there was no active campaigning on the part of the Union and the Respondent. In fact, I found that the Respondent’s unfair labor practices continued after the election. K. The 8(a)(3) Allegations 1. Kathy Mankin discharge The complaint alleges that the Respondent discharged Kathy Mankin in violation of Section 8(a)(3). The Respondent, in its counsel’s brief, concedes that it was aware of her support for the Union, but argues that she was discharged for job perform- ance and “the General Counsel has failed to prove any causal connection” to her support for the Union. In deciding whether the Mankin discharge violated Section 8(a)(3), I apply the criteria laid down in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). To prove a violation under Wright Line, the General Counsel must first show that protected [or union] activity was a moti- vating factor in the Respondent’s decision to take adverse ac- tion against the alleged discriminatee. The General Counsel can satisfy this initial burden by proving that the alleged dis- criminatees engaged in protected [or union] activity, that the Respondent was aware of it, and that the Respondent demon- strated some animus toward that activity. The burden then shifts to the employer to demonstrate that the same adverse action would have occurred even absent the protected activ- ity.” American Red Cross Missouri-Illinois Blood Services Region, supra at 349. The General Counsel has satisfied its initial burden in respect to Mankin. Thus, I found Mankin participated in union activity including being a member of the Union’s organizing commit- tee. I also found, and Respondent conceded, it was aware of Mankin’s activities and support for the Union. Finally, I found that the Respondent engaged in an aggressive campaign against the Union, committed other unfair labor practices and otherwise demonstrated animus. The burden, thus, shifts to the Respon- dent to demonstrate that it would engaged in the same adverse action even absent the union activity. In their brief, counsels for the General Counsel essentially concede that Mankin experienced the work performance prob- lems asserted by the Respondent, and that all three QA techs, including Mankin, a union supporter, and Cassel who opposed the Union, were repeatedly disciplined for their performance shortcomings. Counsels for the General Counsel instead argue that Mankin was treated differently because of her support for the Union, and was, unlike Cassel—a union opponent—not offered a position in a different department. As found, the Respondent followed its policy of progressive discipline in respect to all three QA techs, concluding in the discharge of all three. While the Respondent did not offer Mankin the chance to transfer to a different job, I could not find that QA tech Cassel was extended such an offer by the Respon- dent. Further, I found that Mayer told Sobiech, at a time prior to his permanent layoff, that he should consider a move to a different department, but Sobiech was laid off, not discharged, and while Mayer told Sobiech to consider a different job, he did not offer the job. The record demonstrates, and I found, that Mankin was repeatedly disciplined for job performance short- comings, and that the Respondent followed its policy of pro- gressive discipline in respect to Mankin. Under these circum- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 580 stances, I conclude that the Respondent has satisfied its burden of demonstrating that it would have discharged Mankin even absent her union activity. I, thus, conclude that the Respondent did not violate Section 8(a)(3) by discharging Mankin. 2. Donna McCall discipline Complaint paragraph 21(a) alleges that the Respondent dis- ciplined Donna McCall in violation of Section 8(a)(3). The Respondent, in its counsel’s brief, argues that McCall was dis- ciplined for cause, that “there was no evidence of any relation- ship between her union activity and this discipline,” and that “there was no evidence that McCall was treated differently than any similarly-situated employee who opposed the Union.” Counsels for the General Counsel, in their brief, essentially concede, as they must, that McCall engaged in the egregious actions she is accused of, but maintain that she was disciplined disparately: “While the General Counsel readily admits that using the “N-word” is unacceptable, what needs to be consid- ered is whether action taken against others who used that word was consistent with this situation, involving a union supporter.” In support of this disparate treatment argument, counsels for the General Counsel cite McCall’s testimony that she heard Blan- quel use the “N-word” on two occasions, and Glyzewski’s tes- timony that he overheard lead packaging machine operator (PMO) Mike Stanford refer to Manager Marlenea Jackson with the “N-word” in the presence of Blanquel. I apply the Wright Line test to the McCall discipline,86 as discussed above. Under that test, I conclude that the General Counsel has met his initial burden of showing that protected or union activity was a motivating factor in the Respondent’s de- cision to take adverse action against McCall. Thus, the General Counsel has proved that McCall engaged in union activity, that the Respondent was aware of it, and that the Respondent dem- onstrated some animus toward that activity. I also conclude that the Respondent has met its resultant burden by demonstrat- ing that it would have taken the same disciplinary action even absent the union activity, and thus did not violate Section 8(a)(3) of the Act by administering discipline to McCall, as is alleged in the complaint. McCall clearly committed the acts she was accused of and the Respondent did not act in a manner inconsistent with its own disciplinary policy in administering a final warning to McCall. Mayer imposed the discipline when he learned of the incident. Finally, in my findings, I have not found that either Blanquel or Stanford in Blanquel’s presence used the racial slur involved herein. Inasmuch as there is no other evidence involving an employee similarly situated to McCall, I reject the disparate treatment argument advanced by counsels for the General Counsel. Accordingly, having applied Wright Line, I conclude that the Respondent did not violate Section 8(a)(3) by adminis- tering a final warning to McCall. 86 I note that the discipline of a final warning was not inconsistent with the Respondent’s then-existing disciplinary policy. While the policy provided for progressive discipline, the Respondent’s discipli- nary guidelines also provide as follows: “There may also be instances where disciplinary action will not be progressive, depending on the severity and circumstances of the situation.” 3. The Respondent’s 10(b) argument The Respondent maintains that most of the allegations added by the General Counsel’s amendment to the complaint of Feb- ruary 17, 2006, are untimely in that they were never alleged in any prior charge or complaint. These allegations appear in the amended consolidated complaint of February 22, 2006, the operating document of the litigation, as paragraphs 8(a)–(b), 9(c)–(d), 10(a)–(b), 11(a)–(b), and 20. The February 22 amended consolidated complaint added no new allegations, and was introduced at the trial by the General Counsel, without objection, at the undersigned’s request, so that the parties would have one operating document for reference during the litigation, rather than a series of documents. The Respondent raised the 10(b) issue as an affirmative defense in the answer it filed on February 22 to the amended consolidated complaint. Counsels for the General Counsel do not address this issue in their brief. The General Counsel previously issued a complaint in Case 30–CA–17104 on June 30, 2005, and issued a complaint in Case 30–CA–17268 on December 30, 2005. The original charge in Case 30–CA–17104 was filed on February 11, 2005, and amended charges were filed on April 29 and May 31, 2005. The original charge in Case 30–CA–17268 was filed on August 15, 2005, and amended charges were filed on September 15, October 31, and November 2, 2005. The specific allegations, which the Respondent argues are precluded by Section 10(b) and which were added by the February 17 amendment to com- plaint, are as follows: In the first or second week of February, Gardetto solicited grievances; in March, Gardetto promised an employee things would get better; in mid-February, Blanquel made threats of plant closure; in February or March, Blanquel solicited grievances and promised benefits after a meeting; in February or March, Blanquel and Olson solicited grievances during and after a meeting; in February, Lepak told employees that the Respondent wanted employees with good attitudes and that the Respondent was trying to move forward during a cap- tive audience meeting; in mid-February, Lepak told an em- ployee that the Respondent was looking for workers who “don’t cause trouble or open their mouths that much about stuff;” in June, Jackson took employees to dinner at Famous Dave’s Res- taurant; and in June, Gardetto took employees to dinner at Ingrilli’s Restaurant. Traditionally, the Board and the courts have allowed the General Counsel to add complaint allegations outside the 6- month 10(b) period if they are closely related to the allegations of the timely filed charge. Redd-I, Inc., 290 NLRB 1115, 1116 (1988). There is a three-factor test for determining whether a sufficient relationship exists between an otherwise untimely allegation and a timely filed charge. Id. at 1118. First the Board assesses whether the otherwise untimely alle- gation involves the same legal theory as the allegation in the timely charge. Second, the Board examines whether the alle- gations arise from the same factual situation or sequence of events. Third, the Board may look to whether the Respondent would raise similar defenses to both allegations.” Precision Concrete, 337 NLRB 211 (2001). See also Regency Grande Nursing & Rehabilitation Center, 347 NLRB 1143, BAPTISTA’S BAKERY, INC. 581 1143 fn. 2 (2006). The charges and amended charges filed by the Union here87 contain allegations as follows: (1) original charge in Case 30– CA–17104: alleges that the mass layoffs violated Section 8(a)(3); (2) first amended charge in Case 30–CA–17104 added the following relevant 8(a)(1) allegations: That shortly before March 23, threatened that if the Union won the election, em- ployees would lose benefits, everything would start from zero, and leadman pay would not be awarded to an employee. This amended charge also added allegations of surveillance, prom- ulgation of a no-solicitation rule, disparagement of the Union, granting of benefits including the Brewers outing, jackets, and employee-of-the-year award, and the solicitation of grievances, and an announcement that it was considering changing the time of year for employee evaluations; (3) the second amended charge in Case 30–CA–17104 added an allegation as to the Wehrley questionnaire. The original charge in Case 30–CA–17268 added 8(a)(3) al- legations of discipline. The first amended charge added further allegations of 8(a)(3) discipline. The second amended charge added the allegation of the alleged 8(a)(3) discipline of McCall. The third amended charge added more allegations of discipline in violation of Section 8(a)(3). I conclude that all of the allegations disputed by the Respon- dent as being precluded by Section 10(b), meet the Board’s “closely related” test as being closely related to timely filed charges herein, and are not precluded from litigation by Section 10(b). Thus, all of the disputed 8(a)(1) allegations added by the General Counsel’s amendment to the complaint involve the same legal theory as the 8(a)(1) allegations in the original and amended charges in Case 30–CA–17104; that is, that the Re- spondent engaged in solicitation of grievances, granting of benefits, and threats, as part of its campaign against the Union. Second, the disputed allegations all arise from the same se- quence of events alleged in the original charges and amended charges; that is, the Respondent’s campaign against the Union. Third, the defenses raised by the Respondent to the disputed allegations at trial are essentially similar to the defenses it raised as to the undisputed (for purposes of Sec. 10(b)) com- plaint allegations; that is, credibility, continuation of a preexist- ing practice, business purpose, and Section 8(c). The disputed allegations add no new theory of law and do not depart from the factual scenario involving the organizing campaign which is the subject of all of the charges and complaints involved here. L. Permanent Layoffs of February 2 1. Kathi Szuszka’s layoff The complaint alleges that Szuszka was laid off on February 2, along with the five other named alleged discriminatees. The evidence clearly demonstrates that the Respondent had no in- tention of laying off Szuszka, and did not lay her off on Febru- ary 2. In answer to my question during the trial, counsel for the General Counsel argued that the Respondent’s actions vis-à-vis Szuszka were akin to a constructive discharge, but did not amend or seek to amend the complaint to so allege and, hence, 87 The Respondent does not contest the timeliness of any of the charges or amended charges. there is no allegation here that the Respondent offered a job it knew she would refuse. There is no evidence that somehow the Respondent targeted Szuszka for special treatment by pretending to offer her another job, knowing she would not accept it. And there is no evidence that the Respondent specifically targeted Szuszka as a union activist in that it wasn’t until February 7 that the Respondent learned she was a member of the Union’s organizing commit- tee, upon receipt of a letter from the Union. Neither the Charging Party nor the General Counsel argues that the Respondent did not offer Szuszka a job. And there is no evidence that the Respondent’s offer to Szuszka was, in any sense, a sham. It defies logic to believe that the Respondent would have gone through the effort it made with Szuszka, to find another position for her and to offer the position to her, if it didn’t intend to keep her. At worst, there was a failure of communication between Jackson and Szuszka in that Jackson understood that Szuszka would not work on the first shift, and would remain an employee only if Lepak could find another position for her on an acceptable shift. I, thus, do not conclude that Szuszka was laid off in violation of Section 8(a)(3), as alleged. 2. Rest of the layoffs Complaint paragraph 6 alleges, in pertinent part, that on Feb- ruary 2, the Respondent permanently laid off employees So- biech, Crowley, Bohen, Starrett, and Zullner because employ- ees of the Respondent engaged in union activities. The Re- spondent’s answer admits the layoffs, but denies that they were connected to union activity. Respondent asserts that it laid off the five alleged discriminatees for economic reasons. I apply the Wright Line, supra, test to analyze whether the layoffs vio- lated the Act. M. The General Counsel’s Wright Line Burden Under Wright Line, I conclude that the General Counsel has met its initial burden of demonstrating that union activity was a motivating factor in the layoffs. In reaching that conclusion, I find that various employees of the Respondent were involved in a union organizing drive prior to the layoffs or any decision to layoff, that the Respondent was aware of the activity, and that the Respondent has displayed animus toward the organizational campaign. First, under Wright Line, there is no dispute that prior to the layoffs, some of the Respondent’s employees were engaged in organizing activity on behalf of the Union. Thus, Brzezinski first contacted the Union on January 12, and three union meet- ings were held in January for and with employees interested in union representation. The General Counsel does not contend that the Respondent deliberately chose certain employees for layoff because of their union activity, and the Board has held that in the case of layoffs, antiunion motivation may be found even when some, or even most of the laid-off employees were not known union supporters. See, e.g., McGaw of Puerto Rico, Inc., 322 NLRB 438 (1996), enfd. 135 F.3d 1 (1st Cir. 1997). Accordingly, the General Counsel is not required to show a correlation between each employee’s union activity and his or her layoff, because it is the mass layoff, not the selection of employees for layoff that is at issue. Instead, the General DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 582 Counsel’s burden is to establish that the mass layoff was or- dered to discourage union activity or in retaliation for the pro- tected activity of some. See Davis Supermarkets, Inc., 306 NLRB 426 (1992), quoting ACTIV Industries, 277 NLRB 356 fn. 3 (1985). As to animus, the record is replete with evidence of the Re- spondent’s aggressive campaign against the Union, and I have found that the Respondent has engaged in actions during the campaign violative of Section 8(a)(1), including by some of the Respondent’s highest officials. The effect of such unfair labor practices is magnified when the conduct is perpetrated by high- ranking officials. See Weldun International, Inc., 321 NLRB 733, 736 (1996). I also conclude that the Respondent was aware of the orga- nizing activity at the time it decided on and implemented the layoffs. I found that on February 7, the Respondent received formal notification from the Union as to its organizing drive when Mayer received and read the Union’s notification sent by fax. I also found that about January 26, Brzezinski talked to Shift Manager Olson about “getting a union.” I further found that a couple of weeks before February 9, maintenance me- chanic Cantwell made a comment about a union, heard by Shift Manager Sertich, and that Sertich had so reported to Vice President Lepak within a day or two after hearing the com- ment.88 Lepak, as the Respondent’s vice president of manufacturing, was directly involved at meetings where the Respondent dis- cussed determining the layoffs and new shift assignments. On direct examination, when asked by the Respondent’s counsel if he was “aware the Teamsters were in the process of trying to organize Baptista’s employees,” at the time of his involvement in layoff decisions, Lepak answered, “No.” Lepak was then asked by the Respondent’s counsel, “At any time prior to the change in the production schedule . . . did you have any knowl- edge of that?” He again answered, “No.” However, in reach- ing my conclusion that, in fact, Lepak was aware of some union activity, I note that the comment by employee Cantwell, heard by supervisor Sertich and passed on by Sertich to Lepak, did not contain a specific reference to the “Teamsters,” but rather referred to a union, generically. Thus, while Lepak specifically denied knowledge of a Teamsters campaign at the time of his involvement in layoff decisions, he never denied what other evidence demonstrated, that is knowledge of some union activ- ity.89 As to Shift Manager Olson, I found that he also had knowl- edge that a union was being discussed by employees. Similarly to Lepak, on direct examination, Olson, when asked if prior to when he learned (about 2 or 3 weeks before the layoffs) about the change in shift schedules, he had “any idea that the Team- 88 Mayer testified that Sertich said that he didn’t take Cantwell’s re- mark seriously. But, of course, he took it seriously enough to report the remark to Vice President Lepak. 89 On direct examination, Lepak testified: Q. During the time you personally were involved in the proc- ess of determining new shift assignments, determining layoffs, were you aware that the TEAMSTERS were in the process of try- ing to organize Baptista’s employees?” [Emphasis added.] A. No. sters were interested in an organizing campaign at Baptista’s,” answered, “I don’t believe so, no.” Thus, Olson denied knowl- edge of the Teamsters, but did not deny knowledge of union activity. I found that Olson learned of union activity from his conversation with Brzezinski. Brzezinski testified as to talking about a “union” and did not testify that he specifically men- tioned the Teamsters. As noted, Vice President Lepak was directly involved in the layoffs. Further, while the record does not establish that Shift Managers Olson and Sertich were similarly involved, “[I]t is well established that a supervisor’s knowledge of union activi- ties is imputed to the employer.” Dobbs International Services, 335 NLRB 972 (2001). I, thus, base my finding that the Re- spondent was aware of union activity prior to the February 2 layoffs, on the actual knowledge of Lepak, and the knowledge imputed to the Respondent through Supervisors Olson and Sertich.90 In his brief, the Respondent’s counsel poses the key issue as to knowledge, as being whether the General Counsel proved that the Respondent’s relevant decisionmakers knew of the organizing campaign before the decisions were made, but then argues that “Baptista’s decision makers did not know of the Teamster’s organizing campaign prior to the February 2 lay- offs.” Phrasing the argument this way is significant because nowhere in the Respondent’s brief is there any explicit date mentioned or suggested for such a decision by the Respondent. Indeed, nowhere in the record does any witness of the Respon- dent directly testify to or establish any firm date when the Re- spondent reached a decision to permanently lay off employees, or a firm timeline for such decision. Thus, Mayer testified that the Respondent’s managers, Mayer, Howe, Lepak, and Jackson, first held meetings with regard to possible layoffs in early January, and late December 2004. Upon being shown a document to refresh his recollec- tion, Mayer changed his testimony as to these meetings and testified that they occurred some time during the week of Janu- ary 24. Mayer also testified that the Respondent used no documents at these meetings to come to a decision. Jackson first testified, in response to the General Counsel’s questions, that she was in a meeting at which there was a deci- sion to cut back but couldn’t remember the date. Also in re- sponse to the General Counsel’s question, Jackson testified that as of January 29 she wasn’t intending to, and wasn’t directed to, lay people off. Counsel for the General Counsel then asked Jackson, “Okay, so it was after January 29th that you were first informed there was going to be cutbacks because of slow busi- ness, correct?” Jackson answered, “As far as I remember, yes.” But, after a 5-week recess in the trial, when questioned by the Respondent’s counsel, Jackson testified that her testimony to the General Counsel as to the January 29 was “obviously wrong” because she would have needed more than a few days to figure out who she would lay off. Jackson testified, “I was obviously wrong because it took longer to get to move through this and figure out who we would like to keep, who we wouldn’t, what we were going to actually do. Were we going 90 I find any testimony to the contrary by Mayer, Howe, or other of- ficials of the Respondent to be noncredible in view of this conclusion. BAPTISTA’S BAKERY, INC. 583 to release people?91 Were we going to go to the five day work week. It takes longer than just a couple of days.” Because of the inconsistency of Jackson’s testimony and her initial testi- mony that she couldn’t remember the date of any meetings when a cutback decision was made, I find that I cannot rely on Jackson’s testimony to establish any date for the Respondent’s decision to permanently lay off employees, nor any timeline therefor. Lepak testified that he was present at a meeting or meetings where the Respondent’s officials discussed the changes imple- mented on February 2, but also testified that he couldn’t recall a specific date when any meetings were held. Lepak, in response to the Respondent’s counsel’s question testified, “Well, I don’t recall specifically, you know, the date that we talked about it.” The Respondent’s counsel then asked Lepak if the decision was reached in a single meeting or a series of meetings. Lepak answered, “I don’t recall if it was one single meeting. I don’t believe it was. We talked about it obviously on several occa- sions.” Lepak, thus, does not establish a date for the Respon- dent’s decision to permanently lay off employees nor any time- line therefor. The Respondent’s counsel asked the Respondent’s president, Tom Howe, how long it took the Respondent to make the deci- sion to change the shift structure, as follows: “Q. Now again, I understand that very few decisions are made overnight—the decision to go from four twelves to three eights, was that a decision made in a couple days or was it a longer process? A. It would have been a longer process.” Howe then testified that the timeframe for the decision was “approximately a month.” Howe testified that he was not the person who decided layoffs would be necessary, that he was part of discussions with Mayer and Lepak as to the “implementation of the new produc- tion schedule,” and that these were multiple discussions over an approximate period of 3 weeks. Howe then gave the following answers to the questions of the Respondent’s counsel: Q. Before we talk about specifics, to the best of your recollection, what topics were discussed at these meet- ings? A. The meetings that I was part of was what the shift structure would be, as it relates to the number of jobs one each of the shifts. Q. As part of the discussion of the number of jobs on each shift, to the best of your recollection, was there any discussion in any of those meetings about the need for any layoffs? A. Yes. Q. Now, to the best of your recollection, what specifi- cally was said and by whom? A. That there would be less jobs. Less positions re- quired, since we were contracting from these four shifts to three shifts. As I found as to Lepak and Jackson, I find that Howe’s tes- timony establishes no firm date for the Respondent’s decision 91 Thus, even Jackson’s second version, if credited, leaves open the question of whether the Respondent had initially decided on permanent layoffs. to permanently lay off employees, nor any specific timeline. Indeed, Howe, the president of the Respondent, did not estab- lish who made the decision (except, that he didn’t), exactly when a decision was made, and the specifics of the decision. Finally, when asked by the Respondent’s own counsel, who said what at the meetings where layoffs were allegedly dis- cussed, Howe responded with generalities and a failure to iden- tify the speakers. Howe did testify, in response to the questions of the Respondent’s counsel as follows: “Q. Not only were they [the layoffs] a natural consequence, but they were an in- evitable consequence of that [new] shift structure? A. That is correct.” But such testimony, which seems to suggest that no decision to lay off employees was necessary because it was a natural consequence of the new shift structure, is belied by what the Respondent has done before when faced with such downturns, and what options are available in general to em- ployers facing such situations. I will not substitute my judg- ment for the Respondent’s in deciding what to do when faced with such a problem, but find that it is facile to suggest that there was no decision to be made as to various options includ- ing layoffs. It is certain that some official of the Respondent decided there would be permanent layoffs and there was a date definite on which that decision was reached. But this record does not provide a basis for making such findings. Thus, in a case where the date of the Respondent’s decision to permanently lay off employees is crucial, the Respondent failed to establish a date when the decision was made, or a timeline for the decision, and leaves it largely to speculation as to who made the decision. Howe testified that he decided on the shift changes, but Lepak and Mayer decided there would be layoffs. Lepak testified that he attended management meetings where the subjects of the shift change and production were discussed, that he was involved in deciding which employees would be laid off, but did not testify that he made the decision that the Respondent would lay off employees. Mayer testified as follows in answer to counsel for the General Counsel’s ques- tions: Q. Were you involved in the decision to lay off the employees? A. Yes. Q. Did you initiate the idea that the employees would be laid off? A. No. Q. Who did? A. I don’t recall. Q. What was your role in the process? A. Making sure that severance was taken care of, un- derstanding the reasoning behind the layoffs. I felt com- fortable with it, or I should say with the individuals. Based on my earlier findings that the Respondent had learned of union activity by January 26, and the failure of the Respondent to establish any date or timeline for the decision, or even who made the decision, I conclude that the Respondent had knowledge of the union activity prior to the February 2 permanent layoffs, and before any decision to engage in lay- offs. Thus, under Wright Line, the General Counsel has estab- lished that employees engaged in union activity, the Respon- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584 dent was hostile to that activity, and had knowledge of the ac- tivity when it decided to permanently lay off employees. N. The Respondent’s Wright Line Burden I further conclude that while the General Counsel has met its initial Wright Line burden, the Respondent has failed to meet its resulting burden that it would have engaged in the permanent layoffs even absent the union activity. The Respondent argues, essentially, that the permanent layoffs were caused by a “dou- ble-whammy” consisting of the normal downturn that occurs at the Respondent’s business, and throughout the snack business, in the period following the “Super Bowl” each year, combined with disappointing sales and projected future sales of certain snack products, including the Weight Watchers and Old Dutch products. But, I find that the Respondent has failed to establish that the layoffs were legitimately based on anything other than the seasonal downturn, and that in previous years, before union activity, the Respondent had dealt with such downturns by methods other than permanent layoffs. The testimony of the Respondent’s top officials at the time does not establish to the contrary. Lepak testified as follows in response to questions of the Re- spondent’s counsel: Q. Before we talk more about those layoffs I want to finish exploring the business conditions. What in particu- lar was in a downturn? What products, what parts of the business were suffering? A. Well, basically—you know, again I don’t recall specifically, you know, which of our, you know, products or customers were worse off than others but throughout the winter, you know, snack foods generally decline in sales so that was our primary—that is the company’s pri- mary business. Q. Were you part of any discussions about how much of this slowdown was simply due to the season and it would pick up in the summer? A. Again I don’t recall specifically, you know, that was part of it. The Respondent’s president, Tom Howe, testified that he did not make the decision that the permanent layoffs were neces- sary, but did make the decision to change from four 12-hour shifts to three 8-hour shifts. Howe testified as follows as to the basis of his decision to change the shift structure: “There was a two-fold reason. One was the seasonal reduction in demand for snack food products, principally through our major snack cus- tomers. Secondly is both the Old Dutch and Weight Watchers sales volume, regardless of seasonality, had fallen off substan- tially.” In answer to a later question, Howe testified, “The seasonal slow-down had very little to do with the permanent change in the production schedule.” As to the Weight Watchers business, Howe testified as fol- lows: “The Weight Watchers new products that we introduced in mid-2004 were anticipated achieving a certain sales volume level, on a sustained basis, even giving consideration for sea- sonality. They were not successful in the marketplace. There- fore, the sales had dropped substantially and ultimately were discontinued.” Howe testified that the Weight Watchers prod- uct was discontinued in the first quarter “thereabouts” of 2005. When asked if he had any discussions with Weight Watchers about the success and volume of the product, Howe testified, “Yes. I speak with their key people, Stacy Gordon and David Rosenfeld, at least weekly, and they provide us sales data.” When asked at what point those discussions involved any con- sideration of stopping the Weight Watchers products com- pletely, Howe testified, “It would have been shortly after Christmas of ‘04, when the targeted sales volume for the prod- uct at their locations was falling rapidly.” When asked by the undersigned when the first such discussion occurred about the total discontinuation of the Weight Watchers product, Howe testified, “I don’t recall.” As to the Old Dutch business, Howe testified that customer Old Dutch’s product volume was down 20 percent from the year before, a time at which the Respondent had not yet ac- quired Old Dutch as a customer. Howe testified that he was provided the sales information by Matt Colford of Old Dutch, and that Old Dutch “at that time was about 35 percent of our total sales, and their sales were down about 20 percent from prior year, actual.” My attempts to elicit from Howe the dates of any conversations with Old Dutch officials as to their sales was as follows: Q. Do you recall when this conversation was? A. It was in 2000—late 2004 and 2005. Q. Can you be any more specific? A. I have conversations weekly with our customers. . . . . Q. Okay, and those discussions would have occurred when? A. In late 2004, early 2005. Q. Do you remember when the first such discussion was? A. No. Howe testified that he was present at multiple conversations over 3 weeks with Mayer and Lepak at which the subject of the shift structure was discussed. Howe then testified as follows in response to the questions of the Respondent’s counsel: Q. As part of the discussion of the number of jobs on each shift, to the best of your recollection, was there any discussion in any of those meetings about the need for any layoffs? A. Yes. Q. Now, to the best of your recollection, what specifi- cally was said, and by whom? A. That there would be less jobs, less positions re- quired, since we were contracting from these four shifts to three shifts. Howe’s failure to fully answer this question casts further doubt on his credibility, at least in respect to the quality of his recol- lections. As discussed above, Mayer testified that he attended discus- sions with Howe, Lepak, and Jackson during the week of Janu- ary 24. Mayer testified that at these meetings, Howe said that the Respondent “needed to cut back.” Counsels for the General BAPTISTA’S BAKERY, INC. 585 Counsel asked Mayer whether Howe, at these meetings, gave any reasons why he expected a slowdown. In response, Mayer testified, “He talked about customers, what he had heard from them. Called it a cyclical drop late January after Super Bowl.” Mayer testified, as to these crucial meetings at which layoffs were allegedly discussed, that there were no notes taken during the meetings, no agendas prepared for the meetings, no e-mail messages announcing the meetings or detailing what took place at the meetings, and no documents reflecting what took place at the meetings or when the meetings occurred. Finally, Mayer testified, in response to counsel for the General Counsel’s ques- tion, that he made a search of the Respondent’s records for documents reflecting a drop in future orders, but couldn’t find any such documents. Thus, while Howe testified that the downturn in sales of Weight Watchers and Old Dutch products were the main impe- tus for the layoff decision, Lepak, and Mayer, quoting Howe, placed the blame on the yearly cyclical downturn. I found Lepak and Mayer to be generally reliable witnesses. Howe was not as impressive a witness both in demeanor and in his lack of detailed recollections as to the dates when significant events occurred and of the details of significant meetings, as is demon- strated by some of his quoted testimony above. His answers were frequently not directly responsive to questions.92 Finally, the Respondent produced no documents detailing what took place at the meetings or when the meetings occurred. In support of its economic defense to the layoff allegation, the Respondent produced very limited financial records or other documents at the hearing. The Respondent introduced a docu- ment (R. Exh. 146) consisting of three charts made by its cus- tomer Weight Watchers, showing sales and forecasted sales of its snack products baked by the Respondent. The third Weight Watchers chart shows that its sales of products produced by the Respondent were in the 75,000 to 125,000 pound range as the products were being rolled out in May through November 2004, climbed to over 450,000 pounds upon full distribution in December 2004, fell to about 350,000 pounds in February 2005, fell again to about 250,000 pounds in March 2005, rose to about 300,000 pounds in April 2005, and were forecast for period May through September to be in the monthly range of 200,000 pounds. Howe testified that he received the third chart from Weight Watchers in April 2005, some 2 months after the permanent layoffs, and did not know when he received the other two charts. Howe did not unequivocally testify that he specifically relied on the Weight Watchers documents in reaching his deci- sion to change the shift structure, but did testify that he would have relied on Weight Watchers provided documents, “. . . if Weight Watchers would have provided us, which they periodi- cally [sic], depending upon which meeting you are referring to, information regarding how the volume is tracking versus their expectation.” The Respondent also introduced a three-page document (R. Exh. 143), the first two pages of which were computer gener- ated on March 3, 2006, and show for the months June through 92 Here, as elsewhere, for the discussed reasons, I do not credit Howe. December 2004, both the monthly totals and the grand totals for the period of the Respondent’s sales, by pound, to customer Old Dutch. Page three of the document, showing a computer generated date of January 29, 2004, consists of the Respon- dent’s planned sales to Old Dutch, by weight, for the months of April through December 2004. This document shows that the Respondent’s actual sales to Old Dutch, by weight, were below the planned sales for every month from June through Decem- ber, except September, but does not show a particular crisis period at the end of 2004. Thus, relying on the Respondent’s document, the actual sales by pound to Old Dutch was 18.8 percent below plan in October, 12.2 percent below plan in No- vember, and 8.2 percent below plan in December. This docu- ment does not cover the January 2005 period leading up to the layoff, but the October through December results show that, instead of a crisis, the sales versus planned sales to Old Dutch were improving in the period immediately preceding the layoff. The final document introduced by the Respondent (R. Exh. 144) in support of its economic defense is a computer generated printout identified by Howe as a report of the Respondent’s actual sales, both by weight and dollar, by product and cus- tomer, and cumulatively, versus planned sales, on a monthly, and year-to-date basis, beginning with the 4-week period end- ing January 28, 2005, and ending with the 4-week period end- ing May 27, 2005. Because this document does not contain any sales data for 2004 or prior years, it does not present a picture of the months leading up to the layoff or allow comparison to a comparable period in 2004 or earlier years. The document, thus, does not allow comparison to prior years when the Re- spondent did not permanently lay off employees and when the cyclical seasonal slowdowns also afflicted the Respondent. But the Respondent’s Exhibit 144, like Respondent’s Exhibit 143, does not demonstrate an extraordinary crisis situation in respect to the Respondent’s sales in January or February 2005. For January, the Respondent’s sales to Old Dutch, the customer cited by Howe along with Weight Watchers, was actually 3.5- percent higher by weight than planned, and equal to the plan in dollar sales. Sales to Weight Watchers by revenue, the second customer cited by Howe, were down 26 percent from the plan. The Respondent’s overall sales by revenue during January were 16 percent lower than planned sales. Then, in February, the month in which the layoffs occurred, overall sales by both revenue and weight were higher than planned sales, and sales to Weight Watchers by weight also exceeded the plan, while sales to Old Dutch by revenue and weight were substantially below the plan. In March, the Respondent’s sales, by revenue, were 12.3 percent below the plan. In April, revenue sales were 46.8 percent below the plan, due substantially to a shortfall in Weight Watchers revenue. In May, revenue sales were 59 per- cent below the plan. Respondent’s Exhibit 144 also appears, to some extent, in- consistent with admissions contained in its counsel’s position statement to the Board during the investigation of the charges. Thus, the exhibit shows that the Respondent’s grand total of sales by weight for the 4 weeks ending January 28 as 1,034,000 pounds. The exhibit contains no breakdown by individual week. The position statement (GC Exh. 103), states as follows on page 3: “In the week ending January 7, 2005, Baptista’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586 produced 302,155 pounds of product. The following week it produced 369,798 pounds. The week ending January 21, the Company produced 364,875 pounds. The following week, a marked decline began. In the week ending January 28, 2005, Baptista’s produced only 281,420 pounds of its product.” Add- ing these 4 weeks as set forth in the position statement, totals 1,318,248 pounds of product, as opposed to the exhibit which shows a total of 1,034,000 pounds. The record contains no further explanation as to which figure is accurate, if either, and the brief of the Respondent’s counsel does not address this inconsistency. Absent such an explanation, I decline to rely on either document. Thus, the record contains a paucity of contemporaneous documents in which the Respondent sets forth either a decision to lay off employees or the reasons for such layoffs, or financial documents which demonstrate some sort of sales or other fi- nancial crisis which would have reasonably incited the Respon- dent to engage in an extraordinary permanent layoff of employ- ees. There is, however, a lone contemporaneous document in which the Respondent does, in fact, state its asserted reason for the layoffs, the February 2 memo from Howe to “All Shop Employees.” The memo begins: As all of you have noticed from our work activity, we are ex- periencing the annual postholiday lull in orders that always af- fects the snack industry, something I explained in my notice of July 9, 2004, when announcing our change to a 7/24 two- week rotation. This slowdown is common throughout the snack industry, and snack companies typically adjust their work schedules, reduce their work weeks, and schedule plant shutdowns. The memo discusses the shift changes and the layoffs, in per- tinent part as follows: The second step we’ve taken, and one that we regret was nec- essary, is the layoff of some members of our workforce to re- flect our current and near-term business level and added ca- pacity going forward. These involved tough decisions, we provided those people some assistance to help during their transition to new opportunities, and our focus was on retain- ing people possessing the skills, knowledge, flexibility, reli- ability and attitude that provide the best foundation for build- ing for the future. [Emphasis in original.] The memo continues: “Please do not read anything into these changes beyond it be- ing a temporary seasonal adjustment. [Emphasis added.] Our business is growing, we have made significant invest- ment in baking and packaging equipment to foster that growth, and potential customers are excited about what Bap- tista’s [sic] to offer. Thus, this memo, the only contemporaneous document from Respondent in the record, unequivocally points to the normal seasonal slowdown as the reason for the layoffs. It assures employees that the problem is only “current and near-term.” The Respondent, in its counsel’s brief, argues that Howe principally relied on the alleged sales problems affecting its products produced for Weight Watchers and Old Dutch in reaching his decision to change the Respondent’s shift struc- ture. More specifically as to Weight Watchers, the Respon- dent’s brief asserts that “Howe had weekly conversations with Weight Watchers’ representatives who monitored the sales and quality of Baptista’s products,” and that “[t]he products Bap- tista’s made for Weight Watchers sold below expectation.” The brief further asserts that “in December 2004, Weight Watchers told Mr. Howe it was evaluating whether to discon- tinue those products altogether,” and “[i]n the first quarter of 2005, Weight Watchers did just that.” More specifically as to Old Dutch, the brief asserts that Howe relied on his conversa- tions with Old Dutch officials to reach a conclusion that its product requirements “would remain lower than the volume he had projected originally.” These arguments as to both the Weight Watchers and Old Dutch business are unpersuasive. First, as to Howe’s conversa- tions with Weight Watchers officials, Howe, himself, testified that he didn’t recall when the first discussion with Weight Watchers as to discontinuing its products occurred. The brief asserts that the Weight Watchers products were totally discon- tinued in the first quarter of 2005, but the Respondent’s Exhibit 143 shows sales continuing to Watch Watchers through the end of the exhibit, the week ending May 27, 2005. As to his con- versations with Old Dutch officials, Howe testified that he didn’t recall when he had the first such conversation. Based on the above, I conclude that the few financial records introduced by the Respondent during the hearing do not support its implied argument that by late January or early February, the Respondent’s sales and projected sales were in a crisis situa- tion. Further, the lack of any records whatsoever as to who made the decision to permanently lay off employees and when such decision was made or a firm timeline for such decision, together with the conflicting and indefinite testimony of the Respondent’s witnesses as to these issues, precludes me from reaching conclusions as to who made the decision to lay off employees, when the decision was made, or any firm timeline for the decision. The Respondent also argues that its permanent layoff of em- ployees in 2002, well before any union activity, set a precedent for the February layoffs at issue here. In fact, in November and December 2002, the Respondent permanently laid off about 11 employees who were assigned to work on the “Lunch Muncher” product, which the Respondent produced for a cus- tomer. When the customer completed discontinued this product line, the Respondent reacted by permanently laying off the employees engaged in producing the product. Other than the February layoffs at issue here, the 2002 layoffs are the only time that the Respondent has permanently laid off employees since Baptista’s was founded in 1999. The Respondent’s argument, that its 2002 layoffs set a precedent for the layoffs at issue here, is not persuasive. The 2002 layoffs were a result of a customer totally discontinuing a product, and the Respondent reacted by laying off employees involved in producing that product. In the instant case, no product was discontinued at the time of the February layoffs, and I found that the evidence demonstrated that at the time of the layoffs, the Respondent was simply experiencing its normal BAPTISTA’S BAKERY, INC. 587 seasonal downturn.93 Even if there was evidence that the Re- spondent relied on the documents introduced at the hearing in respect to customers Weight Watchers and Old Dutch, those documents do not demonstrate a crisis in January or February. Indeed, the only momentous event occurring at the time of the early February layoffs was the Union’s organizational drive. Various witnesses testified, without contradiction, that in prior years when the seasonal slowdowns occurred the Respondent avoided layoffs by assigning employees to cleaning duties, and Mayer testified that the Respondent dealt with prior cyclical slowdowns by various methods, including stopping production for a period of time, temporarily laying off employees, and reducing the number of temporary workers.94 Based on the above discussion, and the record as a whole, the Respondent has not met its Wright Line burden of demon- strating that it would have engaged in the February 2 permanent layoffs, notwithstanding the union activities of some of its em- ployees. Since I have already concluded that the General Counsel has met its initial Wright Line burden, I further con- clude that the Respondent’s February 2 permanent layoffs of employees Sobiech, Crowley, Bohen, Starrett, and Zullner vio- lated Section 8(a)(3) of the Act, as alleged in the complaint. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By permanently laying off Dennis Sobiech, John Crowley, George Ann Bohen, Lynda Starrett, and Judy Zullner, on Feb- ruary 2, 2005, the Respondent has been discriminating in regard to the hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act. 93 Howe testified that the Weight Watchers line was eventually dis- continued, although the Respondent’s records produced at trial show continued sales to Weight Watchers through the mid- 2005. But even if the business was eventually discontinued, it had not been discontinued at the time of the layoffs nor immediately thereafter. 94 The Respondent’s continued use of temporary workers after the layoffs, casts additional doubt on the asserted economic basis for the layoffs. The General Counsel introduced business records from two staffing companies which provided temporary workers to the Respon- dent, both before and after the layoffs, which demonstrate that the Respondent’s usage of temporary workers continued on nearly the same basis after the layoffs as it had before. Credited and uncontra- dicted testimony of witnesses for the General Counsel established that many of the temporary workers were performing the same work as had been performed by laid-off workers. In its brief, the Respondent argues that “it is meaningless to compare Baptista’s use of temporary employ- ees in 2005 to any prior period” because some of the temporary em- ployees were utilized short term in 2005 to prepare for the AIB audit, and because since 2004 the Respondent’s “customer base and product mix has continued to evolve” causing fluctuation in its need for tempo- rary employees, and finally because the Respondent’s need for tempo- rary workers fluctuates “based on its customer mix and production capabilities.” But the records introduced by the General Counsel show continued use of temporary employees after the layoffs on a basis akin to their usage earlier in 2005, prior to the layoffs. 4. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time baking process operators, including lead baking process operators, material handlers, maintenance mechanics, quality technicians, packaging ma- chine operators, including lead packaging machine operators, sanitation specialists and sanitors, and shipping and receiving clerks employed by the Respondent at its Franklin, Wisconsin facility; excluding office clerical employees, guards and su- pervisors as defined in the Act. 5. By the following actions, on about the dates95 set forth, the Respondent has interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act in violation of Section 8(a)(1) of the Act by the following actions in respect to its employees: (a) On February 18, and about March 1, 2005, solicited grievances and made promises of benefits. (b) About March 9, 2005, promised benefits. (c) About February 15, 2005, made threats including loss of benefits and plant closure. (d) About February 15, 2005, told employees that if a union was chosen, bargaining would start from “zero.” (e) About February 22, 2005, told an employee that he was not receiving a pay raise because of the union organizational campaign. (f) About February or March 2005, told assembled employ- ees that the Respondent could not grow with a union and wanted to move ahead with employees with good attitudes, and in mid-February 2005, told an employee that the Respondent had good workers who did not complain. (g) On March 17, 2005, told assembled employees that sales had grown and bringing in a union would wreck the progress. (h) On May 1, 2005, provided employees and their guests with the benefit of an outing to a major league baseball game, which included free tickets and food. (i) On March 28, 2005, provided employees with the benefit of an “employee-of-the-year” award, which included a $500 gift certificate. 95 Some of the dates of alleged illegal actions were not specifically pleaded in the complaint. Some others that were specifically pleaded were supported by evidence that either demonstrated they occurred on different dates or on indefinite dates. However, all the allegations were fully litigated and the Respondent fully cross-examined all the wit- nesses of the General Counsel, and engaged all the allegations with a full defense. The Respondent does not argue, nor do I perceive, any lack of due process because certain of the dates proved were different from the dates pleaded, or that a date definite could not be established for certain of the violations. In my findings and conclusions I have attempted to set the dates as best established by the evidence, but be- cause these events occurred some time before litigation and the recol- lections by some witnesses were not precise as to date, I have not been able to determine precise dates as to some of the violations found. Nevertheless, all the violations found occurred after the inception of the Union’s organizational campaign and/or during the Board’s critical period after the petition was filed and before the election was final. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588 (j) On February 21, 2005, posted, restated, and repromul- gated its no-solicitation/no-distribution rule in response to a union organizing drive. (k) On a date in June 2005, provided employees the benefit of free dinners at restaurants to employees and their guests. (l) On May 10, 2005, solicited grievances from its employees with implied promise of resolution, by distributing surveys to employees, and providing a gift certificate for completion and return of the surveys. 6. The unfair labor practices set out in paragraphs 3 and 5, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent, in no manner other than that specifically found any other manner alleged in the complaint, has violated the Act or engaged in objectionable conduct. 8. By the unfair labor practices found above, relating to the objection filed by the Union, and the following lettered objec- tions set forth in the Regional Director’s order consolidating cases and notice of hearing on challenges and objections to conduct affecting the results of the election: A, B, C, D, F, and H, the Respondent has engaged in objectionable conduct likely affecting the outcome of the election held March 23, 2005, and requiring that the results of the election be set aside and a rerun election directed, should the counting of certain challenged ballots, ordered herein, not result in a certification of the Union. The appropriate unit for the election is the same unit previously found appropriate in the representation case, as set forth above. 9. Employees George Ann Bohen and Judy Zullner, whose ballots were challenged at the election, were eligible voters. Employee Kathi Szuszka, whose ballot was challenged at the election, was not an eligible voter. 10. None of the allegations of the amended consolidated complaint are precluded by Section 10(b) of the Act. THE REMEDY Having found that the Respondent has engaged in certain un- fair labor practices in violation of Section 8(a)(1) and (3) of the Act, as is set forth above, it will be ordered to cease and desist therefrom and from any like or related conduct. Having found that the Respondent has unlawfully permanently laid off the five employees named in the conclusions of law, it will be or- dered to offer them immediate and full reinstatement to their former positions of employment or, if those positions are no longer available, to substantially equivalent ones without preju- dice to their seniority or any other rights or privileges they may have previously enjoyed and make them whole for any loss of earnings and benefits they may have suffered by reason of the Respondent’s discrimination against them. Backpay will be computed in accordance with the Board’s decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Further, the Respondent will be ordered to remove from its files any references to the unlawful permanent layoffs and notify the employees that it has done so and will not use their layoffs against them in any way. In respect to the representation case, it will be ordered that the ballots of George Ann Bohen and Judy Zullner be opened and counted, and a revised tally of ballots be prepared and served on the parties. If the revised tally shows that the Union has received a majority of the votes cast, the Regional Director shall issue a certification of representative. If the revised tally shows that the Union has not received a majority of the votes cast, the election shall be set aside and a rerun election shall be conducted. In conformance with this decision, the Respon- dent’s challenge to the ballot of Kathi Szuszka is sustained and the Respondent’s challenges to the ballots of George Ann Bo- hen and Judy Zullner are overruled. Should a rerun election be held, the election notice will include Lufkin96 language. [Recommended Order and Direction of Second Election omitted from publication.] 96 Lufkin Rule Co., 147 NLRB 341 (1964).