NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Baptista’s Bakery, Inc. and Teamsters Local Union No. 344 Sales and Service Industry, affiliated with the International Brotherhood of Teamsters. 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 Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent’s exceptions. The Respondent filed a reply brief and an answering 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, findings, and conclusions in part, to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.2

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 Respondent proved that it would have laid them off for legitimate business reasons even in the absence of union activity. 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 producing snack products at its facility in Franklin, Wisconsin. 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 temporary workers, shut down the plant for a few days, and/or encouraged employees to take vacations. However, layoffs for economic reasons were not unprecedented. In 2002, the Respondent was producing a product line called “Lunch Munchers” for General Mills. In November and December 2002, when the product line was discontinued, the Respondent permanently laid off about seven employees.

A. The Respondent’s 2004 Expansion of Operations

Until 2004, the Respondent primarily produced breadsticks and bread toasts for General Mills, but the Respondent was not profitable. In mid-2003, the Respondent 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 customers, primarily Old Dutch and Weight Watchers, to be sold under the customers’ labels.3 Some of these products were packaged in individual serving sizes, rather than in bulk like the General Mills products. The Respondent purchased new packaging machines and new equipment that increased its baking capacity by 50 percent. 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 operated 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 requires 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 customers.” The Respondent also hired new employees and some new managers to handle the increase in production.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 Respondent’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 services, 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 Respondent had used methods other than layoffs in response 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 producing our own brand.” Marlenea Jackson, the Respondent’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 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 Watchers 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 decided 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 employees George Ann Bohen and Lynda Starrett, bakery process operator Dennis Sobiech, sanitation employee Judy Zullner, and truck loader John Crowley.5 The Respondent also laid off a shift supervisor. Contemporaneously, Howe issued a memorandum to “all shop employees,” 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 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.

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 rotation . . . 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 involved tough decisions, we provided those people some assistance to help during their transition to new opportunities, and our focus was on retaining people possessing the skills, knowledge, flexibility, reliability and attitude 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 Baptista’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 returned to a 4-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 organizing campaign. The first contact with the Union was on January 12. On January 20 and 22, the Union held meetings 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 interested. 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 organizing 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 General Counsel carried his initial burden to prove that employee union activity was a motivating factor in the layoffs. The judge observed that the General Counsel was proceeding under a “mass layoff” theory: that the Respondent 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 Supermarkets, 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 Respondent had general knowledge of that activity by January 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 legitimate 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 Respondent had not resorted to layoffs. The judge further found that the record contained “a paucity of contemporaneous 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 employees 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

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 Respondent 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 knowledge, it would have implemented the layoffs for economic reasons regardless of union activity.

iii. analysis

We find merit in the latter exception. Assuming arguendo 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 regardless of any union activity. We therefore dismiss the allegation 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 accommodate 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 because 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 Exhibit 143, reflecting Old Dutch sales from April to December 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 department, 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 accounted for more than 50 percent of the Respondent’s overall planned sales. Therefore, a decline in demand for those products would be significant. Furthermore, according 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 evidence 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 testimony about the layoff decision, that testimony was not the only evidence supporting the Respondent’s defense. We find that the testimony of other management representatives, 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 comparable 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 balance, we find his reasoning unpersuasive. First, we disagree with his reliance on what he called the absence of an “extraordinary crisis period” in early 2005. With respect 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 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 reassuring 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 emphasizing that employees should not “read anything into” the layoff decision, the memorandum took pains to reassure 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 misplaced. The Respondent was a relatively small employer. Jackson, the Respondent’s quality assurance and sanitation manager, testified that no one was tasked with taking notes at management meetings, that there generally were no written agendas or minutes, and that followup was usually in person rather than by e-mail. Under 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 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 aggregate 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 discriminatees was a sanitation worker, and Jackson testified 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 Respondent 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 Respondent’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 election herein, were not eligible voters.”

2. Delete the judge’s Conclusion of Law 3 and renumber the subsequent paragraphs.

ORDER

The National Labor Relations Board orders that the Respondent, Baptista’s Bakery, Inc., Franklin, Wisconsin, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Soliciting and offering to remedy employee grievances 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 benefits or the plant would close if they choose a union to represent them.

(e) Telling employees that the reason they did not receive 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 union or complain about their terms and conditions of employment are good employees by telling employees that the Respondent has good workers who don’t complain or that the Respondent wants to move forward with employees 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 resolution, in order to discourage support of a union.

(j) Posting, restating, or repromulgating the Respondent’s no-solicitation, no-distribution rule in response to a union organizational campaign.

(k) In any like or related manner interfering with, restraining, 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 representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate 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 responsible official on a form provided by the Region attesting 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 objections 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

A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director shall direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during the period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the date of the first election and who retained their employee status during the eligibility period and their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike that began more than 12 months before the date of the first election and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Teamsters Local Union No. 344 Sales and Service Industry, affiliated with the International Brotherhood of Teamsters.

To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 7 days from the date of the Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.

Dated, Washington, D.C. May 30, 2008

Peter C. Schaumber, Chairman

Wilma B. Liebman, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not solicit your grievances and offer to remedy 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, bargaining 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 receive 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 support 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 including 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 promise 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 Respondent.

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 February, 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 Teamsters[1] (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 complaint 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 promulgation of its no-solicitation rule; solicitation of; and positive response 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 closure; 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 disclose 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 alleged 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 layoffs were unrelated to union organizing activities, and were, instead, generated by a slowdown of the Respondent’s business, 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 Union and challenges filed by the Respondent, which are essentially parallel to the unfair labor practice allegations. The Respondent 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 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. Base 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 purchased 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 contacted the Union, and an organization drive was put into motion. On February 2, the Respondent permanently laid off six unit employees. The General Counsel maintains, and the Respondent denies, that the Respondent had learned of the union activity prior to the layoff decision. The Union filed a representation 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, sufficient to affect the results of the election. The Union filed objections to the conduct of the election on March 29. The alleged unfair labor practices took place both before and subsequent 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 Franklin facility involved herein, the Gardetto’s facility that was not included in the General Mills transaction. Gardetto’s produced 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 utilized 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 Manager of Quality Assurance and Sanitation Marlenea Jackson. At the time the events discussed herein occurred, Brent Lepak was the vice president, 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 seeking 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 customer’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 Respondent’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 employees in July through September 2004, many of the new hires coming from the newly defunct American Italian Pasta Company 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 Respondent 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 contacted the Union on January 12, which resulted in a meeting on 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 Dillon 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 conducted 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 alleged discriminatees, and the restructuring of its shift schedule on Wednesday, February 2. The February 2 memo from Respondent’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 typically 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 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 involved tough decisions, we provided those people some assistance to help during their transition to new opportunities, and our focus was on retaining people possessing the skills, knowledge, flexibility, reliability and attitude that provide the best foundation for building 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 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 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 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 Respondent’s employees on February 5. At this meeting, Dillon discussed forming an organizing committee and opined that the easiest way to protect union supporters was to tell the Respondent their names. On February 7, the Union mailed and faxed a letter to the Respondent’s president, Howe, notifying the Respondent 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 Union’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 Russell 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 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.” Brzezinski 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 February 2. Jackson told Szuszka that she was a