Crete Cold Storage

National Labor Relations Board - Board Decisions

Dec 14, 2009

354 N.L.R.B. 1000 (N.L.R.B. 2009)

354 NLRB No. 114
NOTICE: This opinion is subject to formal revision before publication in the
bound 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.
Crete Cold Storage, LLC and United Food and
Commercial Workers International Union,
AFL–CIO, CLC, Local No. 271. Case 17–CA–
24469
December 9, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On August 17, 2009, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.3

1 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 Liebman and Member Schaumber 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. See Narricot Industries, L.P. v.
NLRB,___F.3d___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell
Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for
cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New
Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted
___S.Ct.___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern
Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert.
filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept.
29, 2009) (No. 09-377).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge found that the Respondent violated Sec. 8(a)(5) and (1) by
withdrawing recognition from the Union and by failing or refusing to
furnish the Union with information requested by it on January 13 and
28, 2009. We agree, and we find no merit in the Respondent’s excep-
tions, as discussed below.
The Respondent argues that the judge erred in failing to find that the
Union lacked the support of a majority of unit employees based on the
fact that only one employee in the unit authorized dues checkoff. This
argument fails to recognize, however, that the Board’s determination of
“majority support” turns on whether a majority of unit employees wish
to be represented by a particular union, not on whether a majority
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Crete Cold Storage, LLC,
Crete, Nebraska, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Dated, Washington, D.C. December 9, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Susan A. Wade-Wilhoit, Esq. for the General Counsel.
Matthew Brick and Douglas Fulton, Esqs. (Brick Gentry P.C.),
of West DeMoines, Iowa, for the Respondent.
Lauren M. Fletcher, Esq. (Blake & Uhlig, P.A.), of Kansas
City, Kansas, for the Charging Party.

choose to become members of that union or choose to authorize the
checkoff of union dues. See Trans-Lux Midwest Corp., 335 NLRB
230, 232 (2001), enfd. mem. 53 Fed.Appx. 571 (D.C. Cir. 2002); T.L.C.
St. Petersburg, Inc., 307 NLRB 605, 605 (1992), enfd. 985 F.2d 579
(11th Cir. 1993).
Similarly, the Respondent argues that the judge erred in failing to
adequately consider additional evidence that purportedly established a
decrease in union membership. Again, the Respondent confuses the
issue of union membership with the issue of majority support for a
union. See, e.g., Narricot Industries, 353 NLRB No. 82, slip op. at 2
(2009) (finding that evidence of decreased union membership does not
provide “objective proof of a union’s loss of majority support”).
Finally, the Respondent argues that it found itself in a “no win”
situation: withdraw recognition, and risk 8(a)(5) charges, or continue
recognition of the Union and risk 8(a)(2) charges. Under Levitz Furni-
ture Co. of the Pacific, 333 NLRB 717, 726, 727 (2001), however, an
employer with a “good-faith reasonable uncertainty” of continued
majority status can petition for an RM election rather than withdraw
recognition immediately. This action creates a “safe harbor”; the Board
will not find that an employer that meets the “good-faith reasonable
uncertainty” standard is in violation of Sec. 8(a)(2) by failing to with-
draw recognition while an RM petition is pending.
3 The judge entered an affirmative bargaining order and found that,
under Caterair International, 322 NLRB 64 (1996), such an order was
the traditional remedy for an 8(a)(5) refusal-to-bargain violation.
Member Schaumber does not agree with the view expressed in
Caterair. He agrees with the United States Court of Appeals for the
District of Columbia Circuit that a case-by-case analysis is required to
determine if the remedy is appropriate. Saginaw Control & Engineer-
ing, 339 NLRB 541, 546 fn. 6 (2003). He recognizes, however, that the
view expressed in Caterair represents extant Board law. Flying Foods,
345 NLRB 101, 109 fn. 23 (2005), enfd. 471 F.3d 178 (D.C. Cir 2006).
He further agrees with the judge’s analysis that an affirmative bargain-
ing order is warranted on the particular facts of this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Lincoln, Nebraska, on June 24, 2009. The charge was
filed on April 1, 2009, and an amended charge was filed on
May 15, 2009. The complaint issued on May 29, 2009, alleges
that Crete Cold Storage, L.L.C. (Crete or Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations Act (the
Act), by on or about April 1, 2009, withdrawing recognition of
United Food and Commercial Workers International Union,
AFL–CIO, CLC, Local No. 271 (Charging Party or Union) as
the exclusive collective-bargaining representative of the unit,1
and by failing and refusing to furnish the Union with the infor-
mation requested by it (a) on January 13, 2009, namely the
current seniority list of all bargaining unit employees, and (b)
on January 28, 2009, by letter which is set forth as an attach-
ment to the complaint, and which will be more fully described
below. The complaint alleges that the information requested by
the Union is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative of the uit. Respondent denies violating the Act as
alleged in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by General Counsel, with the Charging Party joining, and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Iowa limited liability company or busi-
ness entity owned by Omaha Industries, Incorporated with an
office and place of business in Crete, Nebraska, has been en-
gaged in the business of operating a refrigerated warehouse and
storage facility where, during the 12-month period ending April
30, 2009, purchased and received goods valued in excess of
$50,000 directly from points outside the State of Nebraska. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel and counsel for Respondent entered
into the following stipulation:
1. Attorney Matthew Brick is an agent of Respondent within
the meaning of Section 2(13) of the Act.
2. Nebraska is a “Right to Work” State as codified in Neb.

1 As alleged in paragraph 5 of the complaint, the following employ-
ees of 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 warehouse, scale, quality assur-
ance, truck wash, maintenance, lead and sanitation employees em-
ployed by the Employer at its facility located at 2220 County Road
“I”, Crete, Nebraska, but excluding all office clerical employees, en-
gineers, temporary employees, managers, guards and supervisors as
defined in the Act.
Const. art. XV, sec. 13 (1946) which states:
Labor organizations; no denial of employment; closed shop
not permitted. No person shall be denied employment because
of membership in or affiliation with, or resignation or expul-
sion from a labor organization or because of refusal to join or
affiliate with a labor organization; nor shall any individual or
corporation or association of any kind enter into any contract,
written or oral, to exclude persons from employment because
of membership in or nonmembership in a labor organization.
3. [Union] . . . has at all material times been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
On or about February 7, 2005, the Union was certified as the
exclusive collective-bargaining representative of the unit.2 This
recognition is embodied in a collective-bargaining agreement
which was effective from April 1, 2006 through March 31,
2009.
Patrick Burke, who has been the chief executive officer and
president of Omaha Industries since February 2007, was called
by General Counsel as a 611(c) witness. He testified that
Omaha Industries is a holding company which owns Crete Cold
Storage; that Crete is involved in the processing and cold stor-
age of both edible and inedible products, mainly meat; and that
General Counsel’s Exhibit 5 is Crete’s last, best, and final offer
to the Union which the Union signed, and which agreement was
effective April 1, 2006 until March 31, 2009.
Brian Schwisow testified that he has been president of the
involved local union since January 1, 2009; that the Union has
represented Crete’s employees since it was certified on Febru-
ary 7, 2005; that General Counsel’s Exhibit 5 is the labor
agreement between the Union and Crete, which had a term of
April 1, 2006 to March 31, 2009; that General Counsel’s Ex-
hibit 6 is a list the Union generated showing all the past and
present members of the involved bargaining unit; that one of
the individuals listed, Zach Baker, was an employee of a tem-
porary agency and should not have been included on the list of
bargaining unit members; and that the Union’s records show
that five unit members became union members.
Schwisow testified that he introduced himself to Jessica
Placek at Crete on January 12, 2009.
On January 13, 2009, Schwisow had the Union’s office man-
ager, April Guerrero, email Placek (the contact person at Crete
according to the Union’s records) asking her to email a current
seniority list of all bargaining unit employees to her and
Schwisow, General Counsel’s Exhibit 7. The email exchange
shows, as here pertinent, that Placek, on the same day, re-
sponded “Our current seniority list is as follows: Javier Garcia -
Warehouse . . . .” Schwisow then telephoned Placek and asked
for a list of all bargaining unit members, not just dues paying
members. Placek told him that she would have to get with her
attorney. Schwisow asked Placek for her boss’s telephone num-
ber and then he telephoned Burke later that same day and left a

2 All of the parties stipulated to GC Exhs. 3 and 4, which, respec-
tively, are the tally of ballots (issued the day of the election, January 27,
2005, showing eight employees voted for the Union, four voted against
the Union, and there were two challenged votes) and the February 7,
2005 Certification of Representative.
CRETE COLD STORAGE, LLC 3
message.
Schwisow testified that the following week he telephoned
Burke and he explained the situation to Burke who told him
that he would have to get with his attorney; that he has never
heard back from Burke on this issue; and that in the past the
Union had received many different seniority lists from Crete
and they had more than just dues paying members on them,
General Counsel’s Exhibit 8(a) through 8(e).
Burke testified that he received an information request from
the Union for a seniority list; that he did not recall talking to
Schwisow; that he did not recall a conversation with Schwisow
on January 13 or 14, 2009 regarding Placek’s response to
Schwisow’s request for a seniority list wherein she listed only
Garcia, Schwisow said the response was not complete, and he
told Schwisow that he would look into it; and that he did not
recall the conversation but Schwisow did leave him two mes-
sages.
By letter to Crete dated January 28, 2009, General Counsel’s
Exhibit 9, the Union indicated as follows:
Mr. Steve Barker
Plant Manager
Crete Cold Storage
. . . .
RE: Crete Cold Storage CBA
. . . .
This letter is sixty (60) days notice prior to March 31, 2009
as required in ARTICLE XXIII - TERM OF AGREEMENT of
our desire to terminate the Agreement between Crete Cold
Storage and this organization.
The purpose of his termination notice is to commence nego-
tiations for a new labor agreement to replace the one presently
in effect.
We will be in contact with you to schedule negotiations.
Brian Schwisow
President
UFCW LOCAL 271
Also, by letter to Crete dated January 28, 2009, General
Counsel’s Exhibit 10, the Union indicated as follows:
Mr. Steve Barker
Plant Manager
Crete Cold Storage
. . . .
RE: Information Request
. . . .
In order to properly represent the employees in our bargaining
unit in upcoming contract negotiations, would you please
supply me with the following information, which should be
for the fifty-two (52) week period ending December 31, 2008
as it pertains to our bargaining unit.
1. Current seniority list by classification, date of hire,
rate of pay (and whether an employee is part time or tem-
porary, if any).
2. Average weekly number of employees and hours
worked by job classification and wage rate.
3. Total straight time hours worked.
4. Overtime hours and total premium expense.
5. Paid sick time hours and total expense.
6. Funeral Leave hours paid and total expense.
7. Jury duty total hours paid and total expense.
8. Saturday of Sixth Day premium hours paid, if appli-
cable and total expense.
9. Sunday or Seventy Day premium hours paid and to-
tal expense.
10. Holiday hours worked and total expense.
11. Holiday hours (paid but not worked) and total ex-
pense.
12. Night premium hours by premium rate and total
expense.
13. Vacation paid, including the number of employees
with 1, 2, 3, 4, or 5 weeks of vacation for all employees.
14. Any bonus given to the employees and the total
expense.
15, Total annual cost of health insurance. If more than
one rate/plan of coverage, the number of employees at
each specific rate/plan.
16. Total annual cost of pension.
17. If appropriate, the number of hours for which call-
in-pay was paid, the number of those hours worked and to-
tal call-in expense.
18. Annual mandated benefit expenses:
Employer’s Social Security ________________
Unemployment Compensation _____________
Worker’s Compensation __________________
I would appreciate receiving this data no later than February 21,
2009 so that I may properly represent our members under the
law.
Brian Schwisow
President
UFCW LOCAL 271
Schwisow hand delivered these two January 28, 2009 letters
to Placek. He testified that the Union needed the information
requested in the General Counsel’s Exhibit 10 to prepare for
negotiations and to represent its members; and that the informa-
tion requested in the General Counsel’s Exhibit 10 was not
supplied to the Union by Crete at that time. On cross-
examination Schwisow testified that before giving this letter to
Crete he had no idea who was in the involved bargaining unit;
and that he did not know whether the union business agent who
serviced Crete, Linda Lee, had any of the information the Un-
ion requested in General Counsel’s Exhibit 10.
The General Counsel’s Exhibit 11 is a letter from Respon-
dent’s attorney, Brick, to Schwisow which reads as follows:
This letter is to acknowledge receipt of [(1)] your written no-
tice on behalf of the . . . [Union] terminating the collective
bargaining agreement . . . set to expire on March 31, 2009,
[and (2)] … your Information Request dated January 28,
2009. [Crete Cold Storage]. . . is willing to meet and confer
with UFCW for the purpose of negotiating a new agreement
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and we will be providing responses to your information re-
quest shortly.
In addition, the purpose of this letter is to inform you that Jes-
sica Placek, not Steve Barker, is the Plant Manager at the
Crete could Storage facility . . . .
4
Schwisow testified that he learned that Placek was the plant
manager when he received this letter from Brick.
Burke testified that sometime after he received a request for
information regarding upcoming negotiations he received a
telephone call from Respondent’s plant manager, Placek, about
employee Javier Garcia; that Placek told him that an office
assistant, Sandra Franco, told Placek that Garcia “wanted to get
out of the union” (Tr. p.17); that he interpreted this to mean that
Garcia did not want the Union to represent him anymore; that
he then contacted Respondent’s attorney; that at the time, Janu-
ary 2009, he knew that the involved collective-bargaining
agreement covered five or six employees at Respondent but
Garcia was the only dues paying member; that he did not know
if the other employees were paying dues in some other way
than dues check
off; that based on his conversation with Placek, Respondent
announced its intent to withdraw recognition from the Union on
February 20, 2009; that at the time that the letter was sent to the
Union announcing the intent to withdraw recognition, the only
evidence that he had that the Union no longer represented Re-
spondent’s employees was that Garcia wanted out of the Union
and he, Burke, interpreted that to mean that he did not want the
Union to represent him anymore; that was the sole evidence
that he had at the time; that while Union Representative Linda
Lee came to the Crete facility infrequently, he did not know if
she had contact with the employees outside the facility; that
neither he nor Placek had talked to any employees directly
about their feelings regarding the Union; and that as of the time
of the trial, Garcia was still a dues paying member of the Un-
ion.
When called by General Counsel as a 611(c) witness, Placek
testified that she has been plant manager for two and one half
years; that before this she was Crete’s office manager for two
and one half years; that in January 2009 an office clerical em-
ployee, Franco, told her that Garcia wanted out of the union,
and he talked to his supervisor, Samuel Sanchez, about stop-
ping the payment of his dues; that this is the sum of her conver-
sation with Franco; that after here conversation with Franco,
she telephoned Burke and told him what Franco had said; that
she and Burke from the National Labor Relations Board the
(Board), and she told Franco to give the information to Garcia;
that she had a second conversation with Franco who told her
that Garcia telephoned the Board but he could not get anyone to
speak with because he speaks Spanish; that she reported this
second conversation with Franco to Burke; that at the time of
the trial herein union dues were still being deducted from Gar-
cia’s paycheck; and that the only other employee that she ever
talked with about the union was Tony Sanchez in 2006 when he
was in the unit and he told her that he did not want to pay union

3 The letter is erroneously dated February 3, 2008, and while the let-
ter is addressed to Schwisow, it opens with “Dear Mr. Neilon.”
dues.
In response to questions of Respondent’s attorney, Placek
testified that in January 2009 she had a conversation with
hourly employee Franco, who is an Hispanic export clerk who
bi-lingual; that she told Franco that Franco and Garcia would
have to talk to Lee; that she did not believe that she ever saw
Garcia speaking with Lee; that she gave Franco the Board’s
website and possibly a telephone number for the Board to give
to Garcia; that she was not sure whether she gave Franco the
telephone number of the Board but it was whatever Respon-
dent’s attorney Matthew Brick gave Respondent; that she did
not believe that she gave any instructions to Franco about what
she could or could not do; and that Len Johnson was the union
steward at the plant but he left Respondent a couple of years
ago and no one took his place.
Also in response to questions of Respondent’s attorney,
Placek testified that Schwisow is the current Union president;
that she spoke with Schwisow once, namely in the first part of
2009 when he came by her office to give her a letter; that the
letter may have requested information, and she forwarded it on;
that union representative Lee, came to the plant once a month
or every other month for 5 years; that a couple of years ago Lee
was intermingling with the temporary staffing agency employ-
ees and they complained; that she asked Lee to meet the em-
ployees in one room where everybody who wanted to see her
could go to the room to see her; that at the time Donna McDon-
ald was president of the Union; that she discussed the matter
with McDonald because there were safety concerns with a non-
employee being in the plant; that subsequently McDonald
would telephone her when Lee was coming to the plant and she
would put up the same sign on all of the doors, except for the
date, to notify the employees about Lee’s visits4that she asked
supervisor Samuel Sanchez, who was in charge of all of facil-
ity at the time, to make sure that everybody knew so they would
go to the break room but they would not go; that she told
Jelinek and Nigg when Lee was going to be at the Crete facil-
ity; that it would have been Samuel Sanchez’s responsibility to
tell Garcia since Sanchez speaks Spanish; that when Lee was in
the break room the employees in the bargaining unit went out-
side; that Samuel Sanchez relayed bargaining unit complaints
to her about how do they get rid of it, how do they decertify,
what do they need to do5; and that she did not take any action
on hearing these things because she had been instructed very
clearly that she was not to be involved in that, “[a]nd I need by
job . . . .” (Tr. P. 53.)
On redirect Placek testified that she did not recall talking
with Schwisow on January 12, 2009, and then again on January

4 The sign reads as follows:
Linda Lee (Union Rep)
will be here today
Thursday (Feb. 19th)
at noon.
She will be meeting
in the front break
room if you would like to meet with her
on your lunch break.
5 Respondent’s attorney indicated that this was not offered for the
truth of the matter asserted.
CRETE COLD STORAGE, LLC 5
28, 2009; that she recalled Schwisow coming to Crete’s facility
with a gentleman from Washington on January 12, 2009, after
he was elected union president; that she did not recall another
time when Schwisow came to Crete’s facility; that she did not
know how many times employees complained to Samuel San-
chez, and she did not know the names of the employees who
allegedly complained; that Samuel Sanchez did not report to
her the names of any unit members who had complained about
the Union; and that the complaints occurred over the course of
years; and that she did not recall telling Burke about what Sam-
uel Sanchez told her prior to the withdrawal of recognition.
When called by General Counsel as a 611(c) witness, Sam-
uel Sanchez testified that in the beginning of 2009 he was ap-
proached by Garcia who asked him to assist in talking with
Lee; that he told Lee on Garcia’s behalf that Garcia wanted to
get out of the Union because they were taking too much money;
that Lee told Garcia to look for the Union’s address on the un-
ion bulletin board; that he never told anyone in management
about his assistance to Garcia in his attempt to get out of the
Union; that he never discussed getting out of the union with any
other employee other than Garcia; that the only employee that
he ever had a conversation with about the Union or about get-
ting out of the Union was Garcia; that no employee ever told
him that they were not a member of the Union; and that Garcia
never told him that he resigned from the Union.
In response to questions of Respondent’s attorney, Samuel
Sanchez, testified that he is a friend of Garcia; that Garcia does
not speak English; that Garcia came to him and asked him to
ask Lee for him how to get out of the Union; that when he
asked Lee the question she directed Garcia to a union poster
with a telephone number on it; that Lee came to Crete’s facility
once a month or once every 2 months; that he never saw any
employees talking with Lee at Respondent’s facility, except for
the time he accompanied Garcia to speak with Lee; that 3 days
before Lee would come to Crete’s facility Respondent would
put up some signs in English and Spanish on the doors and the
windows to let the employees know Lee was coming to Re-
spondent’s facility; and that, as a supervisor, he is not allowed
to talk with the employees about the Union.
On redirect Samuel Sanchez testified that he did not have in-
dications from employees that they did not want to be members
of the Union; that Garcia told him that he wanted to get out of
the Union because they were taking too much of his money,
and this is what he told Lee6; and that when he spoke with Lee
on behalf of Garcia, Lee told him to tell Garcia to write a letter
asking to get out of the Union.
When called by General Counsel Garcia testified that he has
worked at Crete for 4 years; that he belongs to the Union that
represents Crete’s employees; that about a year ago he decided
that he wanted to resign from the Union; that he asked his su-
pervisor, Samuel Sanchez, what he could do to get out of the
Union; that Sanchez told him that he had to speak with Lee;
that around the first of the year he spoke with Lee, using San-
chez as an interpreter; that he asked Lee what he could do to get
out of the Union, and Lee told him that he had to write a letter

6 Subsequently, Samuel Sanchez testified that initially Garcia only
told him that he wanted to get out of the Union.
and she pointed to the bulletin board; that at no point did he tell
Lee that he wanted to get rid of the Union; and that he did not
speak with anyone else about resigning from the Union.
In response to questions of Respondent’s counsel, Garcia tes-
tified that he is still a member of the Union; that he does not
want to be a member of the Union; that, by letter, he has asked
the Union to let him out; that he sent his letter to the address on
the poster; that the only thing that Samuel Sanchez did for him
was translate for him during his meeting with Lee; that he
talked with Franco about trying to get out of the Union; that he
asked Franco to telephone the Board because when he called he
just got a computer answering machine in English, and he does
not speak English; that he tried to call the Union himself but an
answer machine took the call and it asked him to leave a mes-
sage but he cannot speak English; and that the signs announc-
ing that Lee will be at Crete’s facility are in English only and
since he understands some English words, he knows when Lee
is going to be at Respondent’s facility.
The General Counsel’s Exhibit 12 is a letter from Brick to
Schwisow which, as here pertinent, reads as follows:
Over the last several weeks, employees of Crete Cold Storage
have suggested that your union has lost the support of the bar-
gaining-unit members. Based on, inter alia, these suggestions
and the fact that only one employee is paying dues, my client
has a good-faith reasonable doubt whether a majority of its
employees support the incumbent union. Therefore, unless
Crete Cold Storage receives substantial evidence to the con-
trary, upon termination of the existing collective bargaining
agreement Crete Cold Storage will withdraw recognition from
the union and no longer agree to bargain. If you have any
questions or comments about the contents of this letter, please
let me know.
Schwisow testified that he received the General Counsel’s
Exhibit 12 around February 20, 20097; that at the time he did
not know how many employees were in the bargaining unit
because Crete never gave the Union a current seniority list in
response to the Union’s January 13 and 28, 2009 requests; and
that Garcia is a member of the Union, he was a member of the
Union on April 1, 2009, and the Union has never received a
letter from Garcia indicating that he wanted to withdraw his
membership. On cross-examination Schwisow testified that he
never responded to Brick’s invitation to provide “substantial
evidence” that a majority of Crete’s employees support the
Union.
In response to questions of Respondent’s attorney, Burke,
testified that he determined who was a dues paying member at
Crete from Placek and Respondent’s payroll department; that
since he has been CEO of Omaha Industries he has “had . . .
employees who don’t do dues checkoff if they’re in the union”
(Tr. p. 20); that he does not know of other employees that di-
rectly pay their dues to the union; that to the best of his knowl-
edge the dues payments are “always through dues check off”
(Id. at 21); that he does not get notification from the Union as
far as who is in the Union; that he has never talked to Brian
Schwisow, who is president of the Union; that his office is in

7 The letter is erroneously dated “February 20, 2008.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Omaha, Nebraska; that Placek is responsible for the day-to-day
operations of the involved facility; that Placek told him, with
respect to union activity at the involved plant in early 2009, that
it was minimal at best; that Placek told him that the union rep-
resentative came to the plant on an infrequent, inconsistent
basis; that when he sent the letter to Respondent’s attorney,
Brick, indicating that Respondent intended to withdraw recog-
nition at the end of the then current contract, he did not believe
that there was any majority interest in the collective bargaining
unit for union representation; that he has not spoken with Gar-
cia, who speaks very little English, about this matter; that he
does not speak Spanish; that the letter which was sent to the
Union notifying it that Respondent withdrew recognition re-
quested the Union to provide any information that would con-
tradict Respondent’s position that the Union did not have ma-
jority support; and that he did not receive anything from the
Union that contradicted Respondent’s position.
Placek testified that it is Respondent’s position that there
was only one employee in the collective-bargaining unit, Gar-
cia, when Crete withdrew recognition from the Union; that
there were three employees who were represented by the col-
lective bargaining agreement when Crete withdrew recognition,
namely Garcia, Brad Jelinek, and Rick Nigg; that Union Rpre-
sentative Lee used to regularly come to Crete’s facility; that she
perceived a problem with some of Lee’s visits; and that she
directed that Lee visit employees in a certain area, namely the
front break room.
Schwisow testified that Linda Lee was a business representa-
tive of the local union; that as of February 27, 2009 Lee no
longer worked for the Union; that Lee was replaced by Rod
Brejcha, who has not visited Crete’s facility.
Burke testified that subsequently he received a petition in
Case 17–RC–12614 which the Union filed on March 31, 2009,
with the Board for a certification of representative, Respon-
dent’s Exhibit 1; that as indicated in its Motion for Joinder in
Union’s Petition for Election, Respondent’s Exhibit 2, Respon-
dent wanted an election; that, including office workers, Crete
has about 15 employees; and that the Petition for Certification
of Representative, Respondent’s Exhibit 1, was withdrawn by
the Union.
In response to questions of Respondent’s attorney, Placek
testified that Respondent has not made any changes to the terms
and conditions of its employees in the bargaining unit since the
contract expired in March 2009.
Analysis
Paragraphs 7 and 8 of the complaint collectively allege that
since on or about January 13, 2009, the Union, by email and by
multiple phone calls has requested that Respondent furnish the
Union with a current seniority list of all bargaining unit em-
ployees; that since on or about January 28, 2009, the Union, by
letter, has requested that Respondent furnish the Union with
information which is described above; that the information
sought by the Union is necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive collective-
bargaining representative of the unit; and that at all material
times herein, Respondent has failed and refused to furnish the
Union with the information requested by it in violation of Sec-
tion 8(a)(1) and (5) of the Act.
Respondent on brief argues that it notified the Union on Feb-
ruary 20, 2009, of Crete’s intent to “withdraw recognition from
the union and no longer agree to bargain,” General Counsel’s
Exhibit 12; that an employer has no duty to furnish information
requested by a union under such circumstances, Champion
Home Builders Co., 350 NLRB 788 (2007); that “this charge is
moot as the Employer has already provided the requested in-
formation on the date of the hearing in response to a Subpoena
Duces Tecum served by the Union’s attorney upon the Em-
ployer’s ‘Custodian of Records,” (R. Br., p. 14); that the Union
should have contacted the Employer instead of filing a charge
with respect to the information requests; and that “the Union
testified that all information requested from the Employer was
within the knowledge and control of the Field Representative of
the Union and could have been obtained from her. Tr. p. 106-
108, 111–112” (R. Br., p. 14, with emphasis added).
Champion Home Builders Co. can be distinguished since in
that case the Board found that the Respondent did not violate
the Act when it withdrew recognition from the union involved
there. In the instant case, Crete did violate the Act when it
withdrew recognition from the Union.
Respondent’s second argument set forth above certainly is
not lacking in originality. The argument is so original that Re-
spondent does not cite any precedent to support it. Whatever
Respondent provided on the date of the hearing in response to a
Subpoena Duces Tecum served by the Union’s attorney upon
the Employer was not made a matter of record. Respondent did
not supply the information when it was requested. And contrary
to its assertion, Respondent has not shown that it ever supplied
the information that was requested. This one of Respondent’s
arguments has no merit. With respect to Respondent’s third
argument, as pointed out in note 7 on page 788 of the case Re-
spondent does cite in support of its first argument, Champion
Home Builders Co., “[t]he issue is whether relevant information
was not supplied. Where, as here, it was not supplied, the Un-
ion need not make a second request.” In the instant proceeding
even when the Union made multiple requests during the term of
the first collective bargaining agreement regarding one aspect
of the information sought, Respondent did not provide the nec-
essary and relevant information. And finally, Respondent’s
argument on brief that “the Union testified that all information
requested from the Employer was within the knowledge and
control of the Field Representative of the Union and could have
been obtained from her. Tr. p. 106-108, 111–112” (Respon-
dent’s brief, page 14, with emphasis added), is false. The fol-
lowing appears on page 111 of the transcript:
Q. Do you know whether your field representative had
any of the information that you requested in General
Counsel’s Exhibit 10?
A. No, I don’t.
The General Counsel on brief submits that under the Act an
employer is obligated upon request to furnish the Union with
information which is potentially relevant and which would be
useful to the Union in discharging its statutory duties such as
the representation of its bargaining unit members and contract
negotiation, NLRB v. Acme Industrial Co., 385 U.S. 432
CRETE COLD STORAGE, LLC 7
(1967); that the standard for relevance is a “liberal discovery-
type standard,” Id.; that, with respect to the January 13, 2009
request, an employer does not satisfy its obligation to furnish
information by providing only some of the information re-
quested, Airport Aviation Services, 292 NLRB 823 (1989); that
the January 28, 2009 request sought information concerning
employees’ wages, benefits, and other compensation, which
information is presumptively relevant, Industrial Welding Co.,
175 NLRB 477 (1969); and that if Respondent claims that it
was under no obligation to produce the information after its
announced withdrawal of recognition, Respondent’s argument
is specious at best. While Respondent’s expressed (its letter)
future intent to withdraw recognition is dated one day before
the deadline, February 21, 2009, it received from the Union for
providing the information sought in the Union’s January 28,
2009 letter, it is noted that in its February 20, letter Respondent
indicates “[t]herefore, unless Crete Cold Storage receives sub-
stantial evidence to the contrary, upon termination of the exist-
ing collective bargaining agreement Crete Cold Storage will
withdraw recognition from the union and no longer agree to
bargain.” Crete could not, under the circumstances extant here,
and did not withdraw recognition on February 20, 2009. The
Union’s information requests were made during the term of its
collective-bargaining agreement with Crete, and the informa-
tion, which is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargaining
representative, should have been provided during the term of
that agreement. For the reasons specified above, Respondent
violated the Act as collectively alleged in paragraphs 7 and 8 of
the complaint.
Paragraphs 6 and 8 of the complaint collectively allege that,
in violation of Section 8(a)(1) and (5) of the Act, on or about
April 1, 2009, Respondent withdrew its recognition of the Un-
ion as the exclusive collective-bargaining representative of the
unit.
The Board in Levitz Furniture Co. of the Pacific, 333 NLRB
717, at 717 and 725 (2001), indicated:
After careful consideration, we have concluded that
there are compelling legal and policy reasons why em-
ployers should not be allowed to withdraw recognition
merely because they harbor uncertainty or even disbelief
concerning unions’ majority status. We therefore hold that
an employer may unilaterally withdraw recognition from
an incumbent union only where the union has actually lost
the support of the majority of the bargaining unit employ-
ees, and we overrule Celanese [Corp., 95 NLRB 664
(1951)] and its progeny insofar as they permit withdrawal
on the basis of good faith doubt. Under our new standard,
an employer can defeat a post-withdrawal refusal to bar-
gain allegation if it shows, as a defense, the union’s actual
loss of majority status.
. . . .
We emphasize that an employer with objective evi-
dence that the union has lost majority support—for exam-
ple, a petition signed by a majority of the employees in the
bargaining unit—withdraws recognition at its peril. If the
union contests the withdrawal of recognition in an unfair
labor practice proceeding, the employer will have to prove
by a preponderance of the evidence that the union had, in
fact, lost majority support at the time the employer with-
drew recognition. If it fails to do so, it will not have rebut-
ted the presumption of majority status, and the withdrawal
of recognition will violate Section 8(a)(5). [Footnote omit-
ted and emphasis added.]
Respondent has the burden of showing that the Union had, in
fact, lost majority support at the time the employer withdrew
recognition. Respondent has not made this showing. As noted
above, an employer may unilaterally withdraw recognition
from an incumbent union only where the union has actually lost
the support of the majority of the bargaining unit employees,
and when the employer unilaterally withdraws recognition
based on objective evidence it acts at its peril. At the time the
Respondent withdrew recognition it knew that only one of the
employees in the bargaining unit, Garcia, was having the Re-
spondent deduct union dues from his paycheck. But as Burke
conceded, he did not know at the time the employer withdrew
recognition if the other employees in the unit were paying un-
ion dues in some way other than dues checkoff. Therefore, the
fact that the dues-checkoff authorizations had declined to just
Garcia is not determinative. Placek’s testimony about discus-
sions that Samuel Sanchez allegedly had with employees in the
bargaining unit over the years about the Union is not credited.8
The fact that the Union did not fill the position vacated by
Johnson would not support a good faith doubt defense, which is
no longer applicable with respect to a withdrawal, let alone
meet Respondent’s burden of showing that that the union had,
in fact, lost majority support. As noted above, Burke testified
that that at the time that the letter was sent to the Union an-
nouncing the intent to withdraw recognition, the only evidence
that he had that the Union no longer represented a majority of
Respondent’s employees was that Garcia wanted out of the
Union and he, Burke, interpreted that to mean that he did not
want the Union to represent him anymore; that was the sole
evidence that he had at the time; that while union representative
Lee came to the Crete facility infrequently, Burke did not know
if she had contact with the employees outside the facility; that
neither he nor Placek had talked to any employees directly,
including Garcia, about their feelings regarding the Union; and
that as of the time of the trial herein, Garcia was still a dues
paying member of the Union. None of that which was raised by

8 Placek’s testimony in this regard was not offered for the truth of
the matter asserted. Respondent did not call the involved employees to
corroborate Placek’s testimony. Indeed, Placek testified that she did not
know who they were. More to the point, however, Samuel Sanchez did
not corroborate Placek with regard to her assertion. Indeed Samuel
Sanchez testified just the opposite when he testified that he did not have
indications from employees that they did not want to be members of the
Union. In this light, Placek’s testimony is not credible. Additionally,
Burke did not testify that he took this into consideration in deciding to
withdraw recognition. And Placek testified that she did not recall tell-
ing Burke about what Samuel Sanchez told her prior to the withdrawal
of recognition. So even if it occurred, which has not been shown to be
the case, it was not a consideration in the decision to withdraw recogni-
tion. An employer must show that the union had actually lost the sup-
port of the majority at the time recognition was withdrawn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
the Respondent proves by a preponderance of the evidence that,
at the time the employer withdrew recognition, the Union had
actually lost the support of the majority of the bargaining unit
employees.
9
The Respondent violated the Act as collectively
alleged in paragraphs 6 and 8 of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning 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 engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) and (5) of the Act.
(a) On or about April 1, 2009, Respondent withdrew its rec-
ognition of the Union as the exclusive collective-bargaining
representative of the unit.
(b) Failing and refusing to furnish the Union with the infor-
mation requested by it on or about January 13, 2009 and subse-
quently, and on or about January 28, 2009.
4. The following employees 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 warehouse, scale, quality
assurance, truck wash, maintenance, lead and sanitation em-
ployees employed by the Employer at its facility located at
2220 County Road “I”, Crete, Nebraska, but excluding all of-
fice clerical employees, engineers, temporary employees,
managers, guards and supervisors as defined in the Act.
5. Since February 7, 2005 the Union has been the designated
exclusive collective-bargaining representative of the above-
described unit, the Union has been recognized as the Represen-
tative by the Respondent, and this recognition has been embod-
ied in a collective bargaining agreement which was effective
from April 1, 2006 through March 31, 2009.
6. The above-described labor practices affect commerce
within the contemplation of Section 2(6) and (7) of the Act.

9 As noted above, Respondent’s withdrawal letter states, as here per-
tinent, as follows:
Over the last several weeks, employees of Crete Cold Storage
have suggested that your union has lost the support of the bargain-
ing-unit members. Based on, inter alia, these suggestions and the
fact that only one employee is paying dues, my client has a good-
faith reasonable doubt whether a majority of its employees sup-
port the incumbent union.
There is no showing on this record that “employees [(plural)] …
have suggested….” And the statement in the letter that “… my client
has a good-faith reasonable doubt whether a majority of its employees
support the incumbent union” is no longer the legal standard involved.
On brief, notwithstanding the citation of Levitz, Respondent continues
to argue the wrong standard. Additionally, as pointed out by the Board
in Narricot Industries, 353 NLRB No. 82 (2009) the Board does not
find a decline in union membership, an alleged vacancy in a steward
position or testimony that an unspecified number of employees dis-
cussed the removal of the union, even if considered collectively, suffi-
cient as objective proof of a union’s loss of majority support.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent Crete Cold Storage, LLC
unlawfully withdrew recognition from the Union, it shall be
recommended that Respondent Crete Cold Storage, LLC rec-
ognize and bargain collectively with the Union upon request,
and embody any understanding reached into a signed agree-
ment.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes. For the reasons set forth in Caterair Interna-
tional, 322 NLRB 64, (1996), an affirmative bargaining order is war-
ranted as a remedy for Crete Cold Storage, LLC’s unlawful withdrawal
of recognition from the Union. An affirmative bargaining order is “the
traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the
lawful collective-bargaining representative of an appropriate unit of
employees.” Id. at 68.
However, in, inter alia, Vincent Industrial Plastics, Inc. v. NLRB,
209 F. 3d 727, 738 (D.C. Cir. 2000) the court held that an affirmative
bargaining order “must be justified by a reasoned analysis that includes
an explicit balancing of three considerations: (1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act override the rights
of employees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the violations of
the Act.”
I find that a balancing of the three factors warrants an affirmative
bargaining order. (1) An affirmative bargaining order in this case vindi-
cates the Sec.7 rights of the unit employees who were denied the bene-
fits of collective bargaining by Crete Cold Storage, LLC’s withdrawal
of recognition and its refusal to bargain with the Union. An affirmative
bargaining order does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation because its
duration is only temporary.
Respondent engaged in unlawful conduct which undermined the Un-
ion’s opportunity to bargain effectively. Since the Union was never
given a truly fair opportunity to reach an accord regarding the second
collective-bargaining agreement with Crete Cold Storage, LLC, it is
only by restoring the status quo ante and requiring Respondent to bar-
gain with the Union for a reasonable period of time that the employees
will be able to fairly assess for themselves the Union’s effectiveness as
a bargaining representative.
(2) An affirmative bargaining order also serves the policies of the
Act by fostering meaningful collective bargaining and industrial peace.
That is, it removes the Respondent’s incentive to delay bargaining in
the hope of discouraging support for the Union. It also ensures that the
Union will not be pressured by the Respondent’s withdrawal of recog-
nition to achieve immediate results at the bargaining table following the
Board’s resolution of its unfair labor practice charges and issuance of a
cease-and-desist order. Providing this temporary period of insulated
bargaining will also afford employees a fair opportunity to assess the
Union’s performance in an atmosphere free of the Respondent’s unlaw-
ful conduct.
(3) A cease-and-desist order, alone, would be inadequate to remedy
the Respondent’s withdrawal of recognition and refusal to bargain with
the Union because it would allow another such challenge to the Union’s
CRETE COLD STORAGE, LLC 9
ORDER
The Respondent, Crete Cold Storage, LLC, of Crete, Ne-
braska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing its recognition of the Union as the exclusive
collective-bargaining representative of the unit and failing and
refusing since April 1, 2009, and continuing thereafter, to rec-
ognize and bargain with the Union as the exclusive representa-
tive of the unit.
(b) Failing and refusing to furnish the Union with the neces-
sary and relevant information the Union requested.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a ) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time warehouse, scale, quality
assurance, truck wash, maintenance, lead and sanitation em-
ployees employed by the Employer at its facility located at
2220 County Road “I”, Crete, Nebraska, but excluding all of-
fice clerical employees, engineers, temporary employees,
managers, guards and supervisors as defined in the Act.
(b) Furnish the necessary and relevant information requested
by the Union on or about January 13 (and subsequently) and
28, 2009.
(c) Within 14 days after service by the Region, post, in Eng-
lish and Spanish, at its facility in Crete, Nebraska copies of the
attached Notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
Notices to employees are customarily posted. 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

majority status before the taint of the Respondent’s previous unlawful
withdrawal of recognition dissipated. Allowing another challenge to the
Union’s majority status without a reasonable period for bargaining
would be particularly unfair in light of the fact that the litigation of the
Union’s charges took several months and, as a result, the Union needs
to reestablish its representative status with unit employees. Indeed,
permitting a decertification petition to be filed immediately might very
well allow the Respondent to profit form its own unlawful conduct.
These circumstances outweigh the temporary impact the affirmative
bargaining order will have on the rights of employees who oppose
continued union representation. For all the foregoing reasons, an af-
firmative bargaining order with its temporary decertification bar is
necessary to fully remedy the violations in this case.
11 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.”
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 13, 2009.
(d) 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.
Dated, Washington, D.C., August 17, 2009.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT withdraw recognition of United Food ad
Commercial Workers International Union, AFL–CIO, CLC,
Local No. 271 as your exclusive collective-bargaining repre-
sentative and fail, and refuse to recognize and bargain with
United Food ad Commercial Workers International Union,
AFL–CIO, CLC, local no. 271 as your exclusive representative.
WE WILL NOT fail and refuse to furnish United Food and
Commercial Workers International Union, AFL–CIO, CLC,
Local No. 271 with the necessary and relevant information
United Food and Commercial Workers International Union,
AFL–CIO, CLC, Local No. 271 requested.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL on request, bargain with United Food and Com-
mercial Workers International Union, AFL–CIO, CLC, Local
No. 271 as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time warehouse, scale, quality
assurance, truck wash, maintenance, lead and sanitation em-
ployees employed by the Employer at its facility located at
2220 County Road “I”, Crete, Nebraska, but excluding all of-
fice clerical employees, engineers, temporary employees,
managers, guards and supervisors as defined in the Act.
WE WILL furnish the necessary and relevant information re-
quested by United Food and Commercial Workers International
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Union, AFL–CIO, CLC, Local No. 271.
CRETE COLD STORAGE, LLC