Stroehmann Bakeries

National Labor Relations Board - Board Decisions

Sep 11, 1995

318 N.L.R.B. 1069 (N.L.R.B. 1995)

1069
318 NLRB No. 110
STROEHMANN BAKERIES, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 Certain errors in the official transcript are noted and corrected.
Stroehmann Bakeries, Inc. and Bakery, Confec-
tionery and Tobacco Workers Local Union No.
116. Case 3–CA–18428
September 11, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On November 17, 1994, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Stroehmann Bakeries, Inc.,
Syracuse, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Doren G. Goldstone, Esq., for the General Counsel.
Edward S. Mazurek, Esq., of Philadelphia, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Syracuse, New York, on August 1, 2, and 3, 1994.
The charge and amended charge were filed respectively on
March 3 and June 20, 1994, by Bakery, Confectionery and
Tobacco Workers Local Union No. 116 (the Union). The
amended complaint, which issued on July 1, 1994, and was
amended at the hearing, alleges that Stroehmann Bakeries,
Inc. (the Company or Respondent) violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). The
gravamen of the complaint is that the Company allegedly:
(1) failed and refused to furnish the Union with requested in-
formation relevant and necessary to the Union’s performance
of its duties as collective-bargaining representative of an ap-
propriate unit; (2) solicited employees to decertify the Union,
promised them benefits if they did so, and bypassed the
Union and dealt directly with unit employees by soliciting
them to agree to terms and conditions of employment which
would be implemented after decertification of the Union; and
(3) unilaterally eliminated all unit positions and reassigned
work to nonunit employees and to supervisors, without prior
notice to the Union and without affording the Union an op-
portunity to bargain concerning such action and its effects.
The Company by its answer denies the commission of the al-
leged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The General Counsel and the Company each filed a brief. On
the entire record,1 and from my observation of the demeanor
of the witnesses, and having considered the arguments of
counsel and the briefs submitted by the parties, I make the
following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with offices and places of
business in New York State and Pennsylvania, including a
facility in Syracuse, New York, is engaged in the manufac-
ture and wholesale distribution of bakery products. In the op-
eration of its business, the Company annually purchases and
receives at its Syracuse facility goods valued in excess of
$50,000 directly from points outside the State of New York.
I find, as the Company admits, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION AND BARGAINING
UNIT INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. It is undisputed that at least until
February 11, 1994, the Union was the designated exclusive
collective-bargaining representative of the Company’s em-
ployees in the following appropriate unit:
All shipping and sanitation employees at the Compa-
ny’s Syracuse, New York facility, excluding all office
clerical employees, foremen, non-shipping employees,
and supervisors as defined in the Act.
The most recent collective-bargaining contract between the
Company and the Union covering the unit employees was ef-
fective by its terms from November 2, 1990, to November
1, 1993.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The Company’s operations, and the work of the unit
employees prior to February 11, 1994
George Weston Limited, a Canadian conglomerate, con-
ducts food processing, food distribution, and resource oper-
ations in Canada and the United States. Weston Foods, a
subsidiary of George Weston Limited, is engaged in the pro-
duction, processing, and distribution of bakery, dairy, and
confectionery food products. The Company, based in the
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates herein are for the period of August 1, 1993, through
July 31, 1994, unless otherwise indicated.
3 Cleavenger testified that Kerr was the chief union spokesman, as
did Schmid, in the 10(j) injunction proceeding in this case.
United States, is a subsidiary of Weston Foods. As indicated,
the Company is engaged in the manufacture and distribution
of bakery products.
The Company operates six bakeries, including a bakery at
Sayre, Pennsylvania. The Company’s production and ship-
ping employees at Sayre are not represented by a labor orga-
nization.
Prior to February 11, 1994, the Company shipped bakery
products from Sayre, Pennsylvania, to its Syracuse facility,
both for distribution in the Syracuse area and for trans-
shipment throughout the upstate New York region. The Com-
pany maintained, and still maintains, 14 ‘‘depots’’ for dis-
tribution in this region. Thirteen, including Syracuse, are lo-
cated in upstate New York, and one in adjacent Massachu-
setts.
Transport truckdrivers represented by the Teamsters union,
delivered in bulk, bakery products destined for the upstate
New York region (known as the Central New York Seg-
ment), to the Syracuse facility. There unit employees (ship-
pers) unloaded the trucks. They separated, and sorted into
blocks, orders destined for delivery in the Syracuse area by
the facility’s approximately 28 route salesmen, who loaded
their respective shipments, which they delivered in step vans.
The route salesmen, like the Company’s transport truck-
drivers, are represented by the Teamsters union. The unit
shippers sorted and reloaded onto the transport trucks loads
destined for the other depots. When the Syracuse route sales-
men completed their deliveries, they returned to the facility
with baskets in which the products were packed. The ship-
pers loaded the empty baskets onto a transport truck for re-
turn to Sayre.
The Syracuse facility had 10 unit employees. Nine were
classified as shippers. Eight were full-time employees and
one worked part time. One of the shippers checked off items
returned by the route salesmen as stale. The Company had
a thrift store at the Syracuse facility. The employee in charge
of the store (not a unit employee) brought those items into
the store for retail sale.
The 10th unit employee was classified as a sanitor. The
sanitor, who worked a night shift (normally midnight to 8
a.m.), was responsible for general maintenance and cleaning
of the facility building. David Cleavenger, the sanitor, was
also unit union steward.
2. Negotiations for a new contract, the Union’s requests
for information, and the Company’s responses
Ronald Schmid is the Union’s business agent, and in that
capacity, its principal officer. Antonio Leta is the Company’s
general manager for the Central New York Segment. By let-
ter dated August 6, 1993, Schmid gave Leta notice of the
Union’s desire to negotiate a successor agreement to the
1990–1993 contract.2
Kenneth Spehalski was at all times material here company
director of industrial relations and, in that capacity, its chief
contract negotiator. On September 17, Spehalski contacted
Schmid and suggested that they meet privately in advance of
formal negotiations. Schmid declined. Spehalski proposed
three dates in October for negotiations. Schmid replied that
he or Union International Representative Robert Kerr would
not be available on those dates. They eventually agreed to
meet in negotiations on November 16.
On November 16, the parties met in their only negotiating
session. Schmid, Kerr, and Union Steward Cleavenger were
present for the Union. Leta and Spehalski were present for
the Company. Schmid was nominally the Union’s chief ne-
gotiator but in fact Kerr acted as chief union spokesman, and
did most of the talking for the union side.3 Schmid and Kerr
prepared, and brought with them, proposed contract changes,
which included increased wages and benefits. They did so in
anticipation that the negotiations would be as easy as prior
negotiations, in which they routinely obtained such contract
improvements.
The General Counsel presented testimony by Schmid con-
cerning the November 16 meeting. The Company presented
testimony by Leta and Spehalski. Over the objections of the
General Counsel, the Company questioned General Counsel
witness Cleavenger concerning the meeting, and presented in
evidence a deposition taken of Kerr in the 10(j) proceeding,
in which he testified about the meeting. Kerr was not pre-
sented as a witness in the present hearing.
The witnesses were substantially, but not entirely, in
agreement as to what was said at the meeting. I find the tes-
timony of Leta to be the most accurate and complete con-
cerning the meeting. Unless otherwise indicated, I have cred-
ited his testimony in this regard.
The meeting lasted about 1 hour. Spehalski began the dis-
cussion by presenting what he described as ‘‘bad news.’’ He
said that the Company lost $12 million in 1992, was pro-
jected to lose $16 million in 1993, but the actual loss ap-
peared to be closer to $20 million. Spehalski read aloud ex-
cerpts from George Weston Limited’s annual report. The ex-
cerpts stated in sum that: the conglomerate’s bakery oper-
ations, including the Company, reported operating losses for
the first time, and that the causes were a combination of fac-
tors, specifically, falling retail bread prices in a deflationary
market, rising flour prices, and collapsed sales of hotdog and
hamburger rolls resulting from unusually cold summer
weather. The report described these factors as ‘‘a disastrous
combination for profitability.’’
Spehalski added that the Syracuse operation lost $150,000
in each of the years 1992 and 1993. Leta testified that he un-
derstood the losses were much greater, but he did not correct
Spehalski’s statement.
Spehalski said that the Company could have gone out of
business, but that Weston wanted to remain in the baking
business in the United States, and remain competitive. He
said the Company could not go on without a parent company
being willing to fund its losses. Spehalski and Leta testified,
in sum, that Spehalski said he could be taking a position of
inability to pay, but was not because of Weston’s ‘‘deep
pockets.’’
Schmid testified that he did not hear Spehalski say that he
was not taking a position of inability to pay. In his 10(j) pro-
ceeding deposition however, Schmid stated that Spehalski
may have referred to Weston’s deep pockets. Kerr, in his
deposition, also stated that he did not recall Spehalski say
that he was not claiming inability to pay. Cleavenger testified
that one of the company negotiators, probably Spehalski,
1071STROEHMANN BAKERIES, INC.
4 Spehalski testified that he thought Kerr requested the report, and
that he (Spehalski) agreed to provide it, but he could not recall when
he sent the report. Kerr, in his deposition, stated that he intended
to request the report, but did not do so at the November 16 meeting.
In light of Kerr’s admission, and the absence of any evidence of
communications between the parties concerning this matter after No-
vember 16, I find that the Union never requested a copy of the re-
port, although it may have been furnished in connection with the Re-
gion’s investigation of the unfair labor practice charges.
definitely used the words ‘‘inability to pay.’’ No witness tes-
tified that Spehalski expressly pleaded inability to pay. Con-
sequently, if as indicated by Schmid and Cleavenger,
Spehalski used the phrase ‘‘inability to pay,’’ and referred to
Weston’s deep pockets, the only explanation for the context
in which those words were used is that provided by
Spehalski and Leta. I credit their testimony concerning
Spehalski’s statement.
Spehalski asserted that the Company had to run an effi-
cient operation in order to survive. He said that the Company
needed to change its operations, specifically, to eliminate the
unit and relocate its work to Sayre. Spehalski and Leta ex-
plained what they regarded as inefficiencies in the present
operation. They asserted that unit wages were too high, and
that the system of ‘‘double handling,’’ i.e., unloading and re-
loading at Syracuse, was wasteful and inefficient.
International Union Representative Kerr expressed sur-
prise. He said the Union wanted increased wages and bene-
fits. He said he understood the difficulty in the industry and
wanted to help, but could only go so far. He said that ‘‘if
we’re part of the problem, we can perhaps absorb some of
the pain.’’ Kerr asked if there was anything they could do
to save any jobs.
At this point, the parties caucused. When they returned to
the meeting, Spehalski said they could save three or four
jobs, provided that the Union agreed to certain concessions.
Under this arrangement, the remaining shippers would con-
tinue to service the 28 local routes. Shipments to the other
depots however would go directly from Sayre, eliminating
the ‘‘double handling.’’ Spehalski asserted that the Company
also needed flexibility and changes in work rules, including
authority to utilize 4-day workweeks. With regard to the
sanitor, Leta asserted that the Company could contract out
the cleaning and maintenance work at a cost of less than half
of what it paid Cleavenger and, therefore, the sanitor’s pay
should be reduced. The company representatives said they
needed concessions resulting in a saving of about $150,000
annually.
Kerr asked Company Director of Industrial Relations
Spehalski to present a comprehensive contract proposal, and
Spehalski agreed to do so. The Union did not present its own
written proposal, in light of Spehalski’s presentation. Leta
asked if he could speak to the unit employees in order to ex-
plain the Company’s position. Schmid agreed, with the un-
derstanding that Union Steward Cleavenger would be
present. The Union did not, at this time or any subsequent
time, specifically request a copy of the Weston annual report
from which Spehalski read.4
General Manager Leta testified in sum as follows: In order
to prepare the Company’s wage proposal after the November
16 meeting, he canvassed other employers, including both
union and nonunion operations, to determine what they paid
their shipping employees. The Company also monitors week-
ly payroll and overtime hours. Leta receives weekly reports
of such information, including comparisons of the statistics
for all departments under his jurisdiction. Spehalski testified
in sum as follows: his assertions concerning the excessive
cost of shipping services, including double handling at Syra-
cuse, were based on information obtained from other compa-
nies providing similar services. With respect to the sanitation
service, Leta received a cost quotation from an outside con-
tractor. The information about other companies was con-
tained in a newspaper article which Leta gave him. Leta
however compiled wage rate information for shippers in the
area serviced by the Syracuse facility. He did not recall that
Leta had notes concerning his findings. In the 10(j) proceed-
ing however, Spehalski testified that he believed Leta had
notes concerning the wage survey. Spehalski also testified
that he communicated with Leta on the wage information by
telephone, fax, and mail.
By letter dated November 18 and received November 22,
the Company presented its contract ‘‘proposal regarding the
realignment of [unit] work.’’ The proposal contemplated, al-
though it did not expressly provide for, a maximum of four
unit employees. The proposal provided in sum as follows.
There would be a 4-year contract. The classifications of ship-
per and stale checker would be eliminated and replaced by
classifications of product selector and part-time product se-
lector, who would service the 28 Syracuse area routes. The
classification of sanitor would be eliminated when vacated
by the incumbent employee. Wage rates would be reduced
by $2 per hour for the product selectors (from the former
shipper rate) and by nearly one-half ($6.20 per hour) for new
hires and the sanitor. Restrictions would be placed on over-
time, with authorization for the Company to establish a 4-
day/10-hour work schedule. The Company also proposed var-
ious other changes, including certain restrictions on eligibility
for health care coverage and retiree life insurance, increased
company contribution to its 401(k) plan, and a drug testing
program.
Spehalski proposed a bargaining meeting on November 29
or 30. By faxed letter dated November 22, Schmid replied
that ‘‘because of the extensive changes proposed, and the
shortness of time,’’ the Union would not be able to meet on
the proposed dates. Schmid stated that after the Union ‘‘eval-
uated and researched the company proposals,’’ they would
contact Spehalski to set a meeting date. Spehalski subse-
quently proposed meeting on December 8 or 10. By faxed
letter dated December 6, Schmid responded that the Union
was still evaluating the Company’s proposals, and could not
meet on December 8 or 10. Schmid stated that after evaluat-
ing the proposals, the Union would forward ‘‘extensive’’ re-
quests for information.
Spehalski promptly replied (by letter dated December 6) to
Schmid’s December 6 letter. Spehalski suggested that the
Union was avoiding bargaining. He proposed 13 dates for
bargaining, during the period from December 20 through
January 21. Spehalski declared that ‘‘the Company’s willing-
ness to bargain expires on February 1, 1994, at which time
we will implement operational changes based on business
considerations.’’
The Union subsequently submitted written requests for in-
formation. Although nominally from Union Business Agent
Schmid, the requests were prepared by International Union
Representative Kerr.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated December 9, the Union submitted a request
for information regarding the Company’s drug testing pro-
posal. By letter dated December 22, the Company responded
to that request. The General Counsel does not contend that
the Company unlawfully failed or refused to furnish any of
the requested information.
The Union’s second and third requests for information are
at issue in this case. By letter dated December 10, the Union
stated as follows:
This serves as the unions request for information that
we deem relevant and necessary to assess yor [sic]
claim of financial hardship and inability to pay wage
increases for the members of Local #116.
As such, please provide the following information:
1. Identify which companies Stroehmann’s considers
to be its primary competitors both locally and on a na-
tional level.
2. Describe and provide copies of any and all pro-
duction or other management reports, studies or analy-
ses which the company utilzes [sic] on a regular basis
in reaching decisions on wages, manpower levels, pric-
ing structures for its products. Provide such information
for the past three years to the extent such information
is retained.
3. Provide the following information for a period of
at least three years from the date of this request.
(i) List of customers or sales accounts
(ii) Copy of accounts payable journals or other
form of such record keeping at the company
(iii) Copy of supplier invoices or other forms of
such record keeping at the company
(iv) Copy of general ledger or other form of such
record keeping at the company
(v) Chart of company accounts or other form of
such record keeping
(vi) Detailed listing of all computer records or
other documents or reporting functions maintained
by the company to track profit/loss status, profit to
sales ratio, equity to debt ratio
4. Provide a listing of all company employees, in-
cluding non-bargaining unit and management personnel
with the following information:
(i) Name
(ii) Sex
(iii) Classification or title
(iv) Hourly wage or salary
(v) Benefits provided, other than those set out in
the Local 116 collective bargaining agreement
(vi) Salary or wage increases for the past three
years
(vii) Date of initial service with Stroehmann’s and
dates and titels [sic] of promotions/demotions
5. Provide a copy of any and all annual reports, audi-
tor’s or accountant’s annual and quarterly statements or
business summary reports produced by the company for
the past three years.
6. Copy of all filings with the New York Seretary
[sic] of State, Corporation’s Office, including but not
limited to official corporation registration statements
and financing statements.
7. For the last three years provide the provide the
[sic] following:
(i) Copy of financial statement and/or balance
sheets
(ii) Copy of any applications for loans, lines of
credit, mortgages or other form of borrowing
(iii) Copy of any liens, judgments or creditors’ let-
ters regarding outstanding unpaid bills
(iv) Copy of all reports, statements or analyses by
an auditor or Certified Public Accountant
8. To the extent not already provided in response to
the above, for the company’s current Fiscal Year, pro-
vide:
(i) Copy of balance sheets or statements reflecting
asset/liability statements
(ii) Year to Date General Ledger
(iii) Schedules of expenses, cash flow or other
notes for financial statements
To the extent the company has other financial docu-
ments which would assist the Union in assessing the
company’s claim of inability to pay, please prepare and
provide such documents.
To the extent the answers or documents required in
response to any of the questions above might involve
disclosure of bona fide trade secrets, the Union request
that such responses be identified with particularity so
that an agreement can be reached to maintain the integ-
rity of such trade secrets.
If you have any questions about the above, please
contact me.
Although International Representative Kerr prepared the
Union’s requests for information, Union Business Agent
Schmid was the only witness presented by the General Coun-
sel to testify concerning the reason or reasons for the
Union’s information requests. Schmid testified as follows
with respect to the December 10 request:
The letter was being sent at this time to Stroeh-
mann’s because of the bargaining session we had on the
16th and all the talk there was of their financial hard-
ship and the loss of money and their wanting to cut
wages and wanting to change the overtime over eight
hours and, et cetera, that it was necessary to find out
that if indeed they did have a financial hardship. And
the way to find this out was to send them this type of
a request for information, which as Mr. Kerr told me,
is a standard accounting practice that the International
uses.
Schmid added that he and Kerr concluded that the Company
made a claim of financial hardship and inability to pay.
In response to a leading question from the General Coun-
sel, Schmid testified that his conclusions regarding the Com-
pany’s position were ‘‘reinforced’’ by the July 1993 issue of
a company magazine.
Schmid however earlier testified that the Union’s request
for information was based on the Company’s contract pro-
posal and statements at the November 16 meeting, and not
on any other company statements. Schmid testified that he
did not know when he received or read the magazine.
1073STROEHMANN BAKERIES, INC.
With regard to item 1 in the Union’s information request,
Schmid testified in sum that the knew the identity of the
Company’s major competitors, but wanted the Company’s
opinion. Schmid admitted that the Syracuse facility does not
provide distribution services outside the New York State
area.
The magazine articles referred to in Schmid’s testimony
asserted in sum that the Company lost money in 1992 (for
the reasons given by Spehalski on November 16), but that
1993 would be profitable. The articles asserted that the Com-
pany had to take action, the Company eliminated one cor-
porate office, its bakeries were now more productive and
provided better customer service, and manufacturing and ad-
ministrative costs were lower. The articles however further
asserted that the Company must improve in distribution, that
costs brought down must be kept down, and that the Com-
pany would not close any more plants but would continue to
make changes. The magazine quoted Company President Jim
Fisher as saying that such changes meant doing with fewer
people.
The General Counsel also presented in evidence an open
letter from Company President Fisher to the Company’s em-
ployees, dated December 10. Fisher referred to the fact that
earlier in 1993, the Company had deferred its annual pay in-
crease for salaried and office personnel ‘‘because the compa-
ny’s results were unsatisfactory.’’ Fisher asserted that the
Company sustained major operating losses in 1992 and 1993,
profitability had not improved, and that the situation was at-
tributable to two problems. He stated that one problem, in-
volving the Company’s Hazelton plant, was being solved, but
that the second problem was more difficult in that: ‘‘We are
being squeezed between rising costs and falling prices.’’
Fisher asserted that: ‘‘we cannot continue to operate as we
have in the past. We simply cannot afford it.’’ He exhorted
the employees to work safely, build sales, and eliminate
waste, but declared that: ‘‘The intensive effort we must di-
rect at cost inevitably means that we will have to find ways
to meet consumer and customer needs with fewer people.’’
Fisher announced a program of wage increases in 1994 for
salaried and office personnel, in part conditioned on com-
pany profitability, ‘‘in recognition of hard work and effort
over the past year.’’ Business Representative Schmid testified
at one point that he received a copy of this letter in mid-
December, and at another point, that he did not know when
he received it.
By letter dated December 21, Industrial Relations Director
Spehalski responded to the Union’s information request.
Spehalski denied that the Company made a claim of financial
hardship and inability to pay wage increases, as asserted in
the Union’s December 10 letter. He declared that the basis
of the Company’s proposals was its desire to remain com-
petitive in the baking industry in upstate New York, and that
he never took the position of inability to pay. Spehalski as-
serted that he told the Union that the Company was unwill-
ing to allow its competitors to surpass the Company via
lower labor costs and better efficiencies. He stated that spe-
cifically, the Company was unwilling to allow certain of its
units to tolerate labor costs which were markedly higher than
those of other operating units.
Spehalski went on to assert that: ‘‘Because the underlying
premise of your letter is wrong, the vast majority of the in-
formation which you seek is not relevant to our negotia-
tions.’’ He stated that: ‘‘Specifically, Request Nos. 2, 3, 5,
6, 7, and 8 are not relevant to the issue of whether Local
116 will accept the proposal made by Stroehmann in order
to remain competitive in the Upstate New York area.’’ With
respect to request 1, he listed the Company’s principal com-
petitors in the upstate New York area, but did not refer to
competitors on a national level. With respect to request 4,
Spehalski provided the requested information as to unit em-
ployees only. He stated that: ‘‘information concerning non-
bargaining unit employees and management personnel is not
relevant absent some explanation by you to me as to why
such information will assist Local 116 in the current negotia-
tions.’’
The Union did not reply to Spehalski’s letter. The Com-
pany did not furnish any of the requested information beyond
that indicated above, and the parties did not thereafter meet
or further discuss the Union’s request. On January 10, the
Union filed an unfair labor practice charge (Case 3–CA–
18318), alleging that the Company unlawfully refused to sup-
ply requested information to aid in collective-bargaining for
a new contract. In late February, the Union withdrew that
charge and a subsequent charge (Case 3–CA–18377), pertain-
ing to the Company’s decision to unilaterally eliminate the
bargaining unit. Thereafter, the Union filed the present
charge.
Meanwhile, by letter dated January 12, Spehalski told
Schmid that as the Union had not responded to the Compa-
ny’s proposal of December 6 regarding bargaining dates, ‘‘I
assume you are not interested in bargaining.’’ Spehalski as-
serted that he was reminding Schmid of his declaration in
that letter that the Company’s willingness to bargain would
expire on February 1, at which time the Company would
make a unilateral decision. By letter dated January 20,
Schmid responded that the Company failed to furnish the re-
quested information, and that until the information was fur-
nished and the unfair labor practice charges resolved, ‘‘it will
be impossible to continue bargaining.’’ Schmid declared that
the Union ‘‘is interested, ready and willing to bargain at any
time, as soon as you furnish us with all of the requested in-
formation. This is required by law.’’
By letter dated January 24, the Union presented its third
request for information. The text of the letter was as follows:
This letter serves as the union’s request for informa-
tion which is necessary for the union’s preparation for
the bargaining for a successor collective bargaining
agreement. This letter seeks information regarding the
pension and 401–K plan which is in effect at the com-
pany and in which our members are participants.
Please provide the following:
1. A copy of any and all documents which describe
the structure of the plans and the nature of the benefits,
including but not limited to the plan description, plan
summary document or any other written materials
which are maintained and distributed in accordance
with ERISA and other applicable state and federal laws.
2. A listing of all employees currently participating
in the plans, together with a schedule of accrued bene-
fits and status of vesting rights.
3. A listing of the [sic] both plans current holdings
and investments, together with copies of reports or au-
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dited statements of the plan’s investment advisors and
accountants for the last three years.
4. State whether the plan has adopted any particular
investment strategies and provide copies of any docu-
ments outlining such strategies.
5. To the extent not provided above, list all of the
benefits and methods of withdrawal of funds which are
vested in employee accounts.
Please provide this information as soon as possible
so that our financial consultants can review this infor-
mation prior to the commencement of bargaining.
Schmid testified that Kerr prepared this request, and that the
Union needed the information in order to bargain over pen-
sion and 401(k) issues.
By letter dated February 1, Spehalski stated that as of that
date, the Company decided ‘‘to implement operational
changes at our Syracuse facility based upon business consid-
erations which include the elimination of the Shipping Bar-
gaining Unit.’’ Spehalski asserted that consequently, the
Union’s request for information for the stated purpose of ne-
gotiating a successor contract, was moot. Spehalski stated
that the Company was prepared to negotiate over the effects
of its decision on the unit employees, and would furnish the
requested information, insofar as relevant to effects bargain-
ing.
Spehalski went on to assert that the timing of the Union’s
request suggested that the Union was engaging in delaying
tactics. Spehalski asserted that the Company’s ‘‘proposals on
the pension and 401–K issues were made known to you as
early as October of 1992 and reiterated in November, 1993.’’
Spehalski testified, in sum, that by this assertion he meant
the following: In late 1992, the Company changed its health
insurance and 401(k) pension plans, by enhancing the 401(k)
plan and reducing retirement and health coverage. The Com-
pany offered to discuss the changes with the local unions, in-
cluding the Union, which represented units of its employees.
Schmid, on behalf of the Union, declined the offer, saying
that the Union preferred to remain with the plan which the
parties had negotiated 3 years earlier. Schmid indicated that
the Company was free to improve the 401(k) plan, but not
to reduce benefits. Therefore there was no bargaining over
the changes.
By letter dated February 3, Schmid responded that the
changes were illegal, the Union would file additional unfair
labor practice charges, and the Union would not meet to en-
gage in effects bargaining. Schmid testified that the Union
did not request the information as a delaying tactic, but that
the Company delayed bargaining by failing to furnish the in-
formation requested by the Union in its December 10 letter.
The Company never furnished the information requested in
the January 24 letter.
3. Allegations of unlawful direct dealing with the
employees, solicitation, and promise of benefits
These allegations are based on the testimony of Union
Steward Cleavenger.
Cleavenger testified in sum as follows: During the last
week of January, he approached General Manager Leta in his
office. Cleavenger wanted to see whether the Company and
the Union could get back together and work things out. He
told Leta that he would contact Schmid in order to get the
parties back to the table. Leta said he was available, the
issues were negotiable, and he thought the parties could work
out a deal. That same day, Cleavenger spoke to Schmid.
Schmid said that he would not meet with the Company un-
less the Company provided documentation of its financial sit-
uation.
Cleavenger further testified in sum as follows: He did not
agree with the way Schmid was handling the negotiations.
About February 1, he again approached Leta in his office. He
did so to discuss possible decertification of the Union.
Cleavenger did not do so as a union representative. Rather,
he wanted to protect some jobs, including his own.
Cleavenger got the idea of decertification as a result of a
conversation among himself, employee Chuck Shelley, and
then Shipping Manager Les Fischer, sometime between Janu-
ary 14 and 21.
Cleavenger further testified in sum as follows: At their
second conversation, Cleavenger and Leta talked about de-
certification. Cleavenger said he wanted ‘‘something to
sweeten the pot of decertification.’’ He referred to four jobs
which would remain after decertification. Cleavenger com-
mented that two employees (Fred Awad and John Gorman)
were nearing retirement age. Cleavenger anticipated that if
they retired, he could get one of the remaining shipping jobs.
Cleavenger asked whether the terminated employees could
get an additional 30 days of paid health care coverage (this
was not included in the Company’s proposal). Leta answered
that he saw no problem. Cleavenger asked about wages. Leta
said they were negotiable. Cleavenger referred to the wage
rates at Sayre, which were about $1-per-hour less than the
unit rate, and about $1-per-hour above the Company’s con-
tract proposal. Leta said they would be roughly in the same
range as Sayre, and negotiable. Cleavenger asked whether, if
Awad and Gorman retired, they could receive unemployment
compensation until age 62, and also receive health care bene-
fits. (Under the Company’s contract proposal, employees
who retired prior to January 1, 1994, would receive retiree
health coverage under the company plan, but for those who
retired after that date, age plus years of service had to equal
85 in order to receive the 50-percent company contribution
toward the cost of coverage.)
Cleavenger further testified in sum as follows: At about
this point in their conversation, Leta received a telephone
call. He said it was from Spehalski. Leta said that Spehalski
said the retiring employees would be eligible for unemploy-
ment compensation if they retired immediately. Terminated
employees would receive benefits in accordance with the
1990–1993 contract. The terminated employees who did not
retire would receive severance pay. Cleavenger asked if the
remaining employees would receive the same 401(k) em-
ployer contribution and health care benefits as the Sayre em-
ployees. Leta said they would. (The Sayre employees re-
ceived 401(k) employer contribution under the company
plan, which was greater than that under the 1990–1993 con-
tract but equal to the Company’s contract proposal.) Leta
said, without explanation, that there would probably be a
break in work of 30 to 60 days. Cleavenger said he would
meet with the employees about decertification. Leta said he
was willing to meet with the employees.
Cleavenger further testified in sum as follows with respect
to this second conversation: Leta initially seemed enthusias-
tic. After receiving Spehalski’s call, he became more sub-
1075STROEHMANN BAKERIES, INC.
dued. Leta then repeatedly said that he was not allowed to
dangle a carrot in front of Cleavenger. He said that he was
able to do the things they discussed, but this was ‘‘definitely
off the record.’’ Leta said that if they decertified, they would
have four remaining jobs in the Syracuse area, and Leta
would have no problem with some of the other things they
discussed. Leta said these matters were negotiable. In his
deposition in the 10(j) injunction proceeding, Cleavenger
stated, in response to a question as to whether the above pro-
posals were contingent on decertification: ‘‘I wouldn’t say
that they were contingent to the fact that it was laid in law,
if you de-certified, this is what you would get. I personally
believed this was the carrot I was talking about earlier.’’
Cleavenger testified that by using the phrase ‘‘laid in law,’’
he meant that Leta did not put in writing exactly what the
employees would get.
Cleavenger further testified in sum as follows: After his
second conversation with Leta, he met with the unit employ-
ees on or about February 7 and told them about his discus-
sion with Leta. Initially the employees were in favor of de-
certification. Some questioned however whether they could
rely on Leta’s promises. Then employee Gorman said he
wanted to continue working and not retire. The meeting
ended in chaos. On 1 or 2 days later, Cleavenger approached
Leta for the third time. He told Leta what happened at the
employee meeting, and asked for confirmation of the Compa-
ny’s promises. Leta declined to put anything in writing, but
assured Cleavenger that there were no problems with the
conditions they discussed. Leta said that Cleavenger showed
initiative and was a go-getter, and these were the qualities
he wanted in a salesman. He said he would speak to Re-
gional Sales Manager Ian Strachan about a sales position for
Cleavenger. (The Company did not offer sales positions to
unit employees in the contract negotiations.) A few days
later, Strachan told Cleavenger that he spoke to Leta, that
Cleavenger was a good choice for salesman and could have
the next available sales job.
This was not the first time that Cleavenger spoke to the
Company about a sales position. Cleavenger testified in sum
as follows: In December, he heard that the Company hired
a new salesman. He asked Sales Manager Strachan why ship-
ping employees were not considered for the job. Cleavenger
asked to be considered for a sales job. Strachan said that he
didn’t know the shippers were interested, and that he thought
one or two of them would make good candidates.
Cleavenger further testified in sum as follows: Following
his third conversation with Leta, he spoke to the other em-
ployees in small groups, solicited them to sign a decertifica-
tion letter, obtained signatures from one-half of the unit em-
ployees, and, on February 10, mailed a decertification peti-
tion to the Board’s Regional Office. Cleavenger told Leta
that he had a sufficient showing of support. That same day
(February 10), the Company summoned the employees to a
meeting concerning the effects of unit termination. Spehalski
and Leta distributed printouts indicating the amounts of sev-
erance and vacation pay. Cleavenger asked about the extra
30 days of health care coverage. Spehalski answered that it
wasn’t being offered. Cleavenger realized that ‘‘decertifica-
tion was off’’ and left. The next day the Company termi-
nated the unit employees.
General Manager Leta testified in sum as follows: Follow-
ing the November 16 negotiating session, he met with the
unit employees, including Cleavenger, to explain the Compa-
ny’s position (the Union having indicated that it did not ob-
ject). In December, Sales Manager Strachan told him that
Cleavenger asked about offering sales jobs to the shippers.
Leta answered that he first had to resolve the negotiations.
Leta met with Cleavenger three times in late January and
early February. Cleavenger initiated all conversations by
coming to Leta’s office. Leta assumed that Cleavenger spoke
with him in Cleavenger’s capacity as union steward. Al-
though Leta initially however did not know why Cleavenger
wished to see him, Leta began the first conversation by say-
ing that he could not speak to Cleavenger as an individual,
because he (Cleavenger) was represented by the Union. Leta
did so because this was his standard remark to employees
while negotiations were pending.
Leta further testified in sum as follows with respect to
their first conversation: Cleavenger responded to Leta’s
opening statement by saying ‘‘that’s why I’m here.’’
Cleavenger said he was not happy with the progress of nego-
tiations, and couldn’t understand why the Union couldn’t
come to the table and save three or four jobs. He said he
wanted to discuss decertification with the employees that
evening. Cleavenger asked whether the employees could bar-
gain directly if they decertified the Union. Leta replied that
the Company’s proposal was on the table until February 1,
and if there was no union, the Company could deal directly
with the employees. Leta asked Cleavenger to try to get Kerr
to the table. Cleavenger said he would talk to the employees
that evening. As far as Leta was concerned, decertification
was a nonissue. The Company had resolved to make a deci-
sion on February 1, and he did not believe it was possible
for the employees to file a decertification petition by that
date. Leta believed that Cleavenger was using decertification
as a ploy to get the Union to the bargaining table.
Leta further testified in sum as follows: About February 1,
a few days after their first conversation, Cleavenger again
came to his office. Leta said he could not deal with him di-
rectly, because Cleavenger was represented by the Union.
Cleavenger said he couldn’t get enough support for decerti-
fication. He asked if the Company could fire the employees
and rehire them as nonunion employees. Leta said that was
probably illegal. He again asked Cleavenger to try to get
Schmid to the table, and thereby possibly save three or four
jobs. He asked to talk about the Company’s contract pro-
posal. Leta pulled out the proposal. Cleavenger asked why
the employees couldn’t get Sayre wages. Leta answered that
everything was negotiable, and the Company would be
agreeable if the Union got back to the table. They also talked
about the 401(k) plan and health and retirement benefits.
Cleavenger asked about the effects of the Company’s change
in operations, including severance pay, 30-day extended
medical coverage for displaced employees, and possible job
transfer (the 1990–1993 contract provided for severance pay).
Leta answered that everything was negotiable. He added that
the Company would honor severance pay, even though the
contract had expired. Cleavenger asked about an opportunity
to transfer to a sales position. Leta answered that Cleavenger
showed initiative, and he would consider him, but this would
have to be discussed at the table. He added that the Com-
pany was not opposed to offering a transfer to any employee.
Cleavenger asked about unemployment compensation. Leta
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
replied that he did not know how eligibility would be af-
fected by severance pay.
Leta further testified in sum as follows: During their con-
versation, Leta received a telephone call from Spehalski, who
called to inform him that the Union filed an unfair labor
practice charge. Spehalski did not explain the charge. Leta
realized that it looked like there would be no negotiations.
Therefore, his mood changed. He told Spehalski that
Cleavenger was present and asked about eligibility for unem-
ployment compensation, but did not discuss the reason for
his presence. Spehalski said he believed the employees were
eligible. Leta so informed Cleavenger, and said the Company
would not oppose unemployment compensation. Cleavenger
said he would meet with the employees that evening. Leta
said the Company made its decision in the absence of nego-
tiations, and would move the work to Sayre.
Leta further testified in sum as follows: After his second
conversation with Cleavenger, he asked Sales Manager
Strachan about which unit employees might be good pros-
pects for sales positions. Strachan answered that Cleavenger
and Shelley were qualified. Leta said he would consider the
recommendation, and discuss the matter in effects bargain-
ing. In January, employee Shelley twice approached Leta
about what they could do to save their jobs, and complained
about the Union’s failure to return to the bargaining table.
Leta further testified in sum as follows: Between February
6 and 10, Cleavenger came a third time to his office. By this
time, the Company decided to have an effects meeting with
the employees, as the Union was not bargaining. Cleavenger
said he had a sufficient number of employees for decertifica-
tion. Leta replied that the Company made its decision to
transfer the unit work to Sayre, effective as of February 12,
and it was too late to do anything else. Leta never said he
wanted to meet with the employees about the Company’s
proposal, and never promised anything in return for decerti-
fication. Cleavenger never asked for a written guarantee of
terms of employment, and Leta would not have given it, be-
cause everything was negotiable.
Spehalski testified in sum as follows: In late January, he
called Leta to discuss certain matters, including unemploy-
ment benefits for the unit employees, because it was evident
there would be no bargaining. Spehalski did not recall any
conversation in which Leta said that Cleavenger was in his
office to discuss decertification. Spehalski received the
Union’s initial unfair labor practice charge shortly after the
filing date (January 10), and probably informed Leta the
same day he received the charge. Spehalski subsequently tes-
tified that he did not know when he received the charge.
The Company also presented Sales Manager Strachan and
former Shipping Manager Fischer as witnesses. Strachan tes-
tified in sum as follows: On December 13, he hired a new
salesman. Later that week, Cleavenger asked why he didn’t
hire from the unit. Strachan answered that he didn’t know
they were interested, but would definitely consider Cleaven-
ger. Strachan said he would have to check with Leta, because
the Company normally did not transfer employees between
departments. Strachan did not then, and has not since, had
any openings in his department. He however reported the
conversation to Leta, and asked how Leta felt about it. Leta
said he couldn’t transfer the unit employees now, because of
the ongoing negotiations. About February 1, Cleavenger
asked more than once whether anything had come up.
Strachan answered that there were no openings. About the
same date, Leta asked Strachan if he was interested in any-
one in shipping. Strachan answered that: ‘‘Chuck Shelley and
David Cleavenger would be two possibles.’’ Leta said he
would let Strachan know. Shelley had prior sales experience.
Cleavenger did not. Cleavenger worked nights, and Strachan
worked days. Strachan however knew Cleavenger, and re-
garded him as bright, personable, and having a good work
record.
Fischer testified in sum as follows: Chuck Shelley ap-
proached him and asked if it would do any good if they were
not in the Union. Fischer answered that he had no idea.
Nothing else was said. Fischer never discussed decertification
with Cleavenger or anyone else. He overheard employee con-
versations about decertification, but did not report them to
Leta.
I have certain reservations about Leta’s version of his con-
versations with Cleavenger. If, as Leta testified, he assumed
throughout their conversations that Cleavenger was speaking
in his capacity as union shop steward, then it would make
no sense for Leta to begin their second conversation by say-
ing that he could not deal directly with Cleavenger because
he was represented by the Union. More significantly, if Leta
initially believed that Cleavenger was speaking on behalf of
the Union, then plainly he learned otherwise when Cleaven-
ger made clear that he wanted to decertify or otherwise get
rid of the Union. According to Leta’s testimony, Cleavenger
so indicated in all of their conversations. Therefore, it is evi-
dent that Leta understood that: (1) Cleavenger was speaking
on behalf of himself and possibly other employees, in dero-
gation of the Union’s status; and (2) that he wished to dis-
cuss the terms and conditions which the Company would in-
stitute or follow when the Union was removed as employee
bargaining representative.
I also do not credit Leta’s testimony that Spehalski called
in order to inform him that the Union filed an unfair labor
practice charge. The Union filed its initial charge on January
10, about 3 weeks before the second conversation between
Cleavenger and Leta, when Spehalski called. As admitted by
Spehalski in his testimony, he received the charge shortly
after January 10, about 3 weeks before the second conversa-
tion between Cleavenger and Leta, when Spehalski called.
As admitted by Spehalski in his testimony, he received the
charge shortly after January 10, and promptly informed Leta.
Therefore, it is evident that Leta knew about the charge long
before that conversation. The witnesses’ testimony indicates
that Spehalski told Leta that either the retirees or terminated
employees would be eligible for unemployment compensa-
tion. If so, this information would not cause Leta’s mood to
change. If anything, it would tend to heighten his enthu-
siasm. Therefore, it is evident that Spehalski said something
else which caused Leta’s mood to change. The most likely,
and indeed only other apparent explanation is that indicated
by Cleavenger’s testimony; namely, that Spehalski cautioned
Leta to be circumspect when talking about the terms and
conditions which would follow upon decertification.
I also find it more probable, as indicated by Cleavenger’s
testimony, that Spehalski told Leta that the Company would
not object if employees Awad and Gorman applied for unem-
ployment compensation after they accepted company retire-
ment. Laid-off employees would normally be eligible for un-
employment compensation if they remained in the job mar-
1077STROEHMANN BAKERIES, INC.
ket, regardless of whether they received severance pay. Em-
ployees who took layoff, i.e., voluntarily left their employ-
ment, however would normally not be eligible for unemploy-
ment compensation if the employer informed the state agen-
cy of the circumstances of their departure. It is evident that
Cleavenger was asking, and Leta was giving assurance, after
checking with Spehalski, that the Company would not block
the retiring employees’ applications for unemployment com-
pensation.
I however do not totally credit Cleavenger’s version of his
conversations with Leta. Cleavenger’s testimony indicates
that he sought to portray himself as a ‘‘good guy,’’ who re-
mained a union loyalist until Schmid adamantly refused to
return to the bargaining table, and who thereafter sought to
protect the interests of all the unit employees. I do not credit
his testimony that he initially raised the matter of decertifica-
tion with Leta at their second meeting. If so, then it is un-
likely that Leta would have been prepared to discuss specific
terms and conditions, and even more improbable that
Spehalski would have known what they were discussing, and
been able to counsel Leta in this regard. Indeed, Cleaven-
ger’s testimony that he began their second conversation by
asking for ‘‘something to sweeten the pot of decertification’’
indicates that they previously talked about the matter. I credit
Leta’s testimony that Cleavenger raised the matter of decerti-
fication in their first meeting. In light of the testimony of
Leta and Fischer, it is evident that by the time of the second
conversation, the Company was well aware that at least some
employees, including Cleavenger and Shelley, were seeking
to save their jobs by circumventing or getting rid of the
Union. I however find it unnecessary to decide whether
Fischer was a party to any conversation with Cleavenger and
Shelley concerning decertification.
For the reasons discussed above, I credit Cleavenger’s tes-
timony concerning his second conversation with Leta. With
regard to the third conversation, I do not credit Cleavenger’s
indication in his testimony that Leta initially raised the mat-
ter of a sales position for Cleavenger. As Cleavenger testi-
fied, he anticipated that on the change in operations, Awad
and Gorman would retire, and he could get one of the re-
maining shipping jobs. When Gorman said he wanted to con-
tinue working, Cleavenger however realized that he probably
would be laid off. Therefore, in their third meeting,
Cleavenger asked about an opportunity to transfer into a
sales position. I credit Leta that in their third conversation,
he told Cleavenger that the Company intended to proceed
with its plan to transfer the work to Sayre and, in sum, that
decertification was no longer an option. It is unlikely that by
this late date (on or about February 7) Leta would still be
talking about a deal in return for decertification. I however
credit Cleavenger’s testimony that Strachan told him he
could have the next available sales job.
4. The change in operations
On February 11, the Company eliminated all unit posi-
tions. Employees Awad and Gorman elected to take retire-
ment. They received paid health coverage as if they had re-
tired before January 1. The other terminated employees re-
ceived severance pay under the terms of the expired contract.
The Company also laid off four of its six road drivers based
in Syracuse.
The Company consolidated all order selection at its Sayre
bakery. Shipments to all depots in the Central New York
Segment, except Potsdam and Malone, went directly to the
depots. Because of the distance involved, shipments to Pots-
dam and Malone went by way of Syracuse. The Company
however eliminated the former ‘‘double handling’’ (unload-
ing and reloading). The two remaining road drivers at Syra-
cuse simply hooked up the loads to their tractors for delivery
to Potsdam and Malone.
As for deliveries destined to the Syracuse area routes, the
shipments were broken down by route at Sayre. When such
shipments arrived at Syracuse, the road driver placed each
load in the designated spots, where the loads were picked up
by the respective route salesmen. The road drivers picked up
the empty baskets for return to Sayre. Thrift store clerks con-
ducted the stale (item) check function previously performed
by a unit employee. This was consistent with the Company’s
practice at its other thrift stores. The Company contracted out
the cleaning and maintenance work previously performed by
the sanitor.
After eliminating the unit operation, the Company began
storing low turnover food ingredients at Syracuse, as there
was now available space. These items had previously been
stored at Sayre. As part of this change, the Company elimi-
nated a stock clerk position at Sayre, and reassigned former
Shipping Manager Les Fischer to the newly created position
of sales safety coordinator. Fischer devoted 20 to 25 percent
of his time to warehouse work in connection with these
stored items, which came directly from the suppliers to Syra-
cuse. Fischer used a motorized forklift, which necessitated 1
or 2 days of training on his part. The shipping employees
had previously used handtrucks to handle stacks of baked
goods.
As a result of the changed operation, there was an increase
in shipping work at Sayre. The Company hired an additional
five or six shipping employees at Sayre.
General Manager Leta testified in sum as follows: The
Company considered the possibility of retaining a maximum
of three or four unit employees, but opted instead to elimi-
nate the entire unit. The Company believed that retention of
such employees would create scheduling problems. The
Company could not assure continuous full-time work for all
of them. Conversely, there might be excessive overtime costs
when one or more of them was out sick or on vacation. The
Company was also concerned that the Union might call a
strike, in which case the Company’s Teamsters-represented
employees might refuse to cross a picket line.
B. Analysis and Concluding Findings
1. Whether the Company’s decision to eliminate the
Syracuse unit was a mandatory subject of bargaining
The Company contends that its decision to eliminate the
Syracuse unit was not a mandatory subject of bargaining. I
disagree.
The complaint correctly alleges that the Company did not
simply terminate an operation. Rather, the Company ‘‘reas-
signed unit work to nonunit employees and to supervisors.’’
The Company continued to perform the same work as had
been performed by the unit employees, using different per-
sonnel. Shipping employees at Sayre performed the work of
sorting and loading baked goods for delivery to depots in the
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964).
6 First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
Central New York Segment, which had previously been per-
formed by the Syracuse shippers. At Syracuse, ‘‘sales safety
coordinator’’ Les Fischer, drivers, and thrift store clerks per-
formed work previously assigned to unit employees, i.e.,
movement of goods within the warehouse, unloading of
trucks and loading empty baskets onto trucks, and stale item
checking. Subcontractor personnel did the cleaning and main-
tenance work previously performed by the sanitor. In sum,
the present case is one involving relocation of unit work.
As held by the Board, ‘‘a decision to relocate unit work
case is one more closely analogous to the subcontracting de-
cision found mandatory in Fibreboard5 than the partial clos-
ing decision found nonmandatory in First National Mainte-
nance.6 Dubuque Packing Co., 303 NLRB 386, 391 (1991),
enfd. sub nom. Food & Commercial Workers Local 150-A v.
NLRB, 1 F.3d 24 (D.C. Cir. 1993), cert. dismissed 146
LRRM 2896 (D.C. Cir. 1994). In Dubuque, the Board
spelled out the following test for determining whether an em-
ployer’s decision to relocate unit work is a mandatory subject
of bargaining:
Initially, the burden is on the General Counsel to estab-
lish that the employer’s decision involved a relocation
of unit work unaccompanied by a basic change in the
nature of the employer’s operation. If the General
Counsel successfully carries his burden in this regard,
he will have established prima facie that the employer’s
relocation decision is a mandatory subject of bargain-
ing. At this juncture, the employer may produce evi-
dence rebutting the prima facie case by establishing that
the work performed at the new location varies signifi-
cantly from the work performed at the former plant, es-
tablishing that the work performed at the former plant
is to be discontinued entirely and not moved to the new
location, or establishing that the employer’s decision in-
volves a change in the scope and direction of the enter-
prise. Alternatively, the employer may proffer a defense
to show by a preponderance of the evidence: (1) that
labor costs (direct and/or indirect) were not a factor in
the decision or (2) that even if labor costs were a factor
in the decision, the union could not have offered labor
cost concessions that could have changed the employ-
er’s decision to relocate.
Applying the Dubuque test, I find that the General Coun-
sel established that the Company’s decision involved a relo-
cation of unit work unaccompanied by a basic change in the
nature of the Company’s operation. The Company continued
to deliver baked goods to its depots in the central New York
segment. The Company simply, in sum, altered its method of
delivery by sending some shipments directly to depots, in-
stead of via Syracuse, eliminating what it regarded as double
handling at Syracuse. This was not a basic change in the na-
ture of the Company’s operation.
I further find that none of the five defenses articulated by
the Board in Dubuque are present in this case. As previously
discussed, the work performed after unit termination was
identical or substantially similar to that previously performed
by the unit employees. Some of the work was still performed
at the Syracuse facility. The basic work was not discon-
tinued. As indicated, the Company had to hire five or six ad-
ditional shipping employees at Sayre to perform work pre-
viously performed by unit employees. There was no change
in the scope or direction of the enterprise. The Company
continued to deliver its line of baked goods to the upstate
New York region, asserting in sum that it simply wished to
do so more economically and efficiently. Indeed, the Com-
pany told the Union that it wished to remain in the baking
industry in upstate New York.
The evidence further demonstrates that labor costs, both
direct and indirect, were a conspicuous factor in the Compa-
ny’s decision. In this regard, Board precedent holds that
‘‘quality control,’’ i.e., labor efficiency and productivity, is
an indirect labor cost factor. See Bob’s Big Boy Family Res-
taurants, 264 NLRB 1369 (1982). With regard to cleaning
and maintenance work, the Company itself took the position
that direct labor costs, specifically the sanitor’s wages, were
the only reason why it sought to subcontract that work.
As for the fifth defense stated in Dubuque, supra, the
Company’s own position in the negotiations belies any con-
tention that the Union could not have offered labor cost con-
cessions that could have changed the Company’s decision to
relocate. The Company proposed to retain three or four jobs
in exchange for wage and other contractual concessions, and
asserted that its proposals were negotiable. For its part, the
Union declared that ‘‘if we’re part of the problem, we can
perhaps absorb some of the pain.’’ In this regard, the follow-
ing language in Big Boy Restaurants is pertinent:
[R]espondent’s primary concerns in deciding to sub-
contract were escalating costs and portion control. As
the Court noted in Fibreboard, production cost matters,
which by their very nature include wages, fringe bene-
fits, and other employment costs, over which the union
can exercise substantial control, are ‘‘particularly suit-
able for resolution within the collective bargaining
framework, and industrial experience demonstrates that
collective negotiation has been highly successful in
achieving peaceful accommodation of the collective in-
terests.’’ As for portion or quality control, the potential
input by the Union here is not as direct as that in cost
factors. We do note, however, that quality control is a
common concern in collective-bargaining relationships
and we are unwilling to say here that collective bar-
gaining would be of minimal value to Respondent in
achieving its objectives. [Id. at 1371.] [Footnotes omit-
ted.]
As the Company’s decision was a mandatory subject of
bargaining, I shall next address the propriety of the Union’s
December 10 request for information.
2. Whether the Company unlawfully failed or refused
to furnish information requested in the Union’s
December 10 letter
Preliminary to determining the propriety of the Union’s re-
quest for information, it is necessary to resolve certain ques-
tions concerning the scope of that request. First, the Union’s
request, on its face, was addressed to documents and infor-
mation generated or maintained by the Company, i.e.,
Stroehmann Bakeries, Inc. The request did not, on its face,
call for documents or information generated or maintained by
1079STROEHMANN BAKERIES, INC.
Weston or any of its other subsidiaries and affiliates, includ-
ing Weston’s annual reports, unless such documents or infor-
mation fell within the omnibus clause of the Union’s request,
i.e., ‘‘other financial documents [which the Company has]
which would assist the Union in assessing the Company’s
claim of inability to pay.’’
Second, the Union’s request did not on its face, purport to
cover information obtained by Leta (as testified by him), in
canvassing other employers to determine what they paid their
shipping employees. The General Counsel contends (Br. p.
19) that such information was called for in items 2, 5, 7(i),
7(iv), and 8(i) of the Union’s request. Item 2 however is in-
applicable, because the canvass was not utilized by the Com-
pany ‘‘on a regular basis.’’ Rather, as testified by Company
General Manager Leta, he conducted the canvass in prepar-
ing for the Company’s contract proposal. Item 5 is also inap-
plicable, because the canvass did not constitute a periodic
business report. Items 7(i), 7(iv), and 8(i) are not applicable,
because the canvass was not a financial statement, balance
sheet, auditor or accountant’s report, or statement of assets
and liabilities. As with the Weston annual report, the Union
called for Leta’s canvass only insofar as covered by the om-
nibus clause of the December 10 letter. Item 2 of the Decem-
ber 10 letter however would apply to the weekly reports on
payroll and overtime hours, as described by Leta.
To some extent, as will be further discussed, the Union’s
request for information addressed competitiveness, in the
sense of the Company’s position in relation to its competi-
tors. The principal thrust of the Union’s request however, en-
compassing most items, concerns the Company’s financial
situation. Under the doctrine of NLRB v. Truitt Mfg. Co., 351
U.S. 149, 153 (1956), ‘‘a refusal . . . to substantiate a claim
of inability to pay increased wages may support a finding of
a failure to bargain in good faith.’’ The predicate for this
doctrine is, as stated by the Supreme Court: ‘‘Good-faith bar-
gaining . . . requires that claims made by either bargainer
should be honest claims.’’ (Id. at 152.) In the present case,
the Union asserted that requested information was ‘‘relevant
and necessary to assess [the Company’s] claim of financial
hardship and inability to pay wage increases for the [unit em-
ployees].’’ Therefore, the question is presented as to whether
the Company made such claims.
I find, notwithstanding the Company’s disclaimer, that the
Company did in fact purport to base its bargaining position
on claimed financial hardship and inability to pay. Industrial
Relations Director Spehalski began his presentation on No-
vember 16 by asserting that the Company suffered huge fi-
nancial losses in 1992, and projected continuing heavy losses
in 1993. He did not limit his presentation to the Syracuse op-
eration, although he asserted that the Syracuse operation
itself was operating with substantial financial loss. Spehalski
did not attribute the Company’s losses to high wages or inef-
ficient operation. Rather, he attributed the losses to market
factors, including falling bread prices, higher flour prices,
and lower demand for certain company products.
Spehalski made clear that because of these alleged finan-
cial losses, the Company’s position would be sharply dif-
ferent from that in prior negotiations. In past negotiations,
the Union would ask, and the Company would give contract
improvements. Now the Company was proposing to elimi-
nate the Syracuse unit operation, or to reduce the operation,
eliminate unit jobs, and drastically reduce the wages and
benefits of the remaining unit employees. Spehalski further
made clear that the Company was making these proposals as
a means of reducing its alleged financial losses. Indeed,
Spehalski and Leta told the Union that they needed conces-
sions resulting in a saving of about $150,000 annually, i.e.,
in an amount equal to the alleged financial losses sustained
by the Company’s Syracuse operation, although the bargain-
ing unit comprised only part of that operation.
As indicated, Spehalski told the Union that he could be
taking a position of inability to pay, but was not because of
Weston’s deep pockets. Spehalski however followed this
statement by asserting that Weston wanted to remain in the
baking business in the United States and to remain competi-
tive. Spehalski further asserted that the Company could not
go on without a parent company being willing to fund its
losses, and that the Company needed to eliminate the Syra-
cuse unit and relocate its work to Sayre, among other
changes, in order to meet Weston’s requirement that the
Company be competitive. In sum, insofar as pertinent to the
negotiations, Spehalski was saying that absent such changes,
Weston would not continue to subsidize the Company, and
the Company could not afford to continue the present unit
complement and wage scales, let alone a wage increase.
Therefore, the Company was basing its contract proposals on
asserted financial hardship and inability to pay.
The Board has repeatedly held that where as here, an em-
ployer predicates its bargaining position as a matter of neces-
sity by reason of current alleged financial losses, the bargain-
ing union is entitled, on request, to information pertaining to
the alleged losses and their impact on the employer’s busi-
ness. The employer violates its bargaining obligation by fail-
ing or refusing to provide such information, notwithstanding
an express disclaimer that it is pleading inability to pay,
where the thrust of the employer’s position indicates other-
wise. See Shell Co., 313 NLRB 133 (1993); Facet Enter-
prises, 290 NLRB 152, 153 (1988), enfd. 907 F.2d 963,
979–981 (10th Cir. 1990); Clemson Bros., 290 NLRB 944
(1988); and Continental Winding Co., 305 NLRB 122, 125
(1991).
The present case is also similar, in critical respects, to
Steelworkers Local 5571 v. NLRB (Stanley-Artex Windows),
401 F.2d 434, 436 (D.C. Cir. 1968) (opinion by Burger,
C.J.), cert. denied 395 U.S. 946 (1969); and NLRB v. Bagel
Bakers Council, 434 F.2d 884, 887–888 (2d Cir. 1970), cert.
denied 402 U.S. 908 (1971). In both cases, the union in-
volved requested information concerning the employer’s fi-
nancial condition, including financial statements. In Steel-
workers, the employer asserted that although its parent cor-
poration was making money, the division (employer) was
not, and the division had to stand on its own. When the
union made its wage proposals, the employer’s representative
responded (according to his testimony) that ‘‘if we gave any
more [sic], at this time, I didn’t see how we could remain
competitive.’’ The Court, in agreement with the Board, held
that ‘‘the contention that the division had to ‘stand on its
own’ and that it could not remain competitive if it granted
[u]nion demands puts ability to pay in issue.’’ In Bagel
Bakers, involving a multiemployer bargaining association,
the Council demanded a 40-percent reduction in labor costs,
asserting that its employer members were losing money be-
cause of increased competition from non-Council producers.
The Council’s president subsequently admitted that not all of
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employer members were losing money, ‘‘but certain of
my members want to take advantage of this situation.’’ The
Court, in agreement with the Board, held that the Council’s
position constituted a claimed inability to pay. In Steel-
workers and Bagel Bakers, the respective courts held that the
respondent employers violated Section 8(a)(5) of the Act by
failing and refusing to furnish the requested financial infor-
mation.
In the present case, as in Steelworkers, supra, the Em-
ployer had a parent corporation with deep pockets, but indi-
cated that the parent corporation expected the Employer to
stand on its own, and argued that its bargaining proposals
were necessary to remain competitive. In the present case, as
in Bagel Bakers, supra, the Employer(s) predicated their bar-
gaining position on alleged financial losses caused by market
factors. In neither Steelworkers nor Bagel Bakers did the em-
ployers expressly plead inability to pay. Nevertheless, in
each case the Board and the courts held that the Union was
entitled to employer financial records and information.
The Company’s reliance on Nielsen Lithographing Co.,
305 NLRB 697 (1991), affd. sub nom. Graphic Communica-
tions Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992);
Burruss Transfer, 307 NLRB 226 (1992); Beverly Enter-
prises, 310 NLRB 222 (1993), affd. in pertinent part sub
nom. Torrington Extend-A-Care Employee Assn. v. NLRB, 17
F.3d 580 (2d Cir. 1994); Concrete Pipe & Products Corp.,
305 NLRB 152 (1991), affd. sub nom. Steelworkers v.
NLRB, 983 F.2d 240 (D.C. Cir. 1993); and Georgia-Pacific
Corp., 305 NLRB 112 (1991), affd. sub nom. Paperworkers
v. NLRB, 981 F.2d 861 (6th Cir. 1992), is misplaced. In
Shell, supra, the Board distinguished the first four above-
named cases as follows: ‘‘In Nielsen . . . the employer re-
peatedly stated that it was still making a profit; the thrust of
its economic assertions pertained to its future [economic]
competitiveness. . . . Similarly, in Burruss Transfer . . . the
employer’s claims were grounded in its claims of competi-
tive disadvantage, and it did not assert that it needed eco-
nomic concessions as a matter of economic survival. Further,
in Beverly Enterprises . . . the employer expressly stated
that it was not going out of business and essentially indicated
that it simply was not as profitable as it once had been. . . .
And in Concrete Pipe & Products Corp. . . . the employer’s
claims were wholly derived from its stated desire to be com-
petitive and its claims as to ‘survival’ did not refer to any
imminent risk or immediate economic peril.’’ Those distinc-
tions also apply to the present case. In Georgia-Pacific,
supra, the employer’s negotiator ‘‘made it clear that Re-
spondent was a very wealthy corporation, was not pleading
poverty, and wanted concessions simply because ‘we just
want more.’’’ (305 NLRB at 116). Therefore Georgia-Pa-
cific, like the four cases distinguished by the Board in Shell,
is also distinguishable from the present case.
In the present case, the Union was entitled to the requested
information in order to evaluate the Company’s assertions of
financial hardship and inability to pay, and thereby be en-
abled to formulate an informed response to the Company’s
contract proposals. Items 2, 3, 5, 6, 7, and 8 pertained to the
Company’s financial condition. Therefore, such information
was relevant and necessary to the Union’s performance of its
duties as bargaining representative. The Board has held, in
sum, that where the employer has pleaded ‘‘financial inabil-
ity to pay or its equivalent,’’ the union bargaining representa-
tive is entitled to such information. S-B Mfg. Co., 270 NLRB
485, 486, 492 (1984). In that case, the Board held that the
union was entitled to requested information ‘‘including Fed-
eral tax returns and audit reports for the last 3 years along
with the balance sheets and income statements; detailed sup-
porting schedules of costs of goods sold, including break-
downs of labor costs and supervisory and other non-labor
wages and benefits, and interim financial statements for the
last period for which the books were closed together with the
same data for a comparable period the preceding year.’’ See
also Circuit-Wise, Inc., 306 NLRB 766, 768–769 (1992). In
the present case, the Company advanced no reason for refus-
ing to furnish the information requested in items 2, 3, 5, 6,
7, and 8, other than its contention that the information was
irrelevant. As discussed, I find that contention without merit.
With regard to item 1 of the Union’s December 10 letter
the Company, without explanation, failed to identify its com-
petitors on a national level. As discussed, the Company did
not limit its November 16 presentation to the upstate New
York area. Rather, the Company based its position on its al-
leged heavy financial losses and need to remain competitive,
both systemwide and in the upstate New York area. There-
fore, the Union was entitled to the names of the Company’s
primary competitors both on a national and local level, in
order to evaluate the Company’s economic situation in rela-
tion to its competitors, including, e.g., comparative wage and
benefit scales and staffing, and thereby further enable the
Union to make an informed response to the Company’s con-
tract proposals. The Company violated its bargaining obliga-
tion by failing to identify the companies which it considered
to be its primary competitors on a national level.
With regard to item 4 of the Union’s December 10 letter,
the Company declined to furnish the requested information,
insofar as such information covered nonbargaining unit and
management personnel. I find that the requested information
was relevant and necessary to the Union’s performance of its
duties as employee bargaining representative. Such informa-
tion was pertinent to the Company’s bargaining position and
the Union’s response to that position. The information was
pertinent, e.g., to enable the Union to evaluate whether the
unit employees were being asked to shoulder a disproportion-
ate share of the sacrifices proposed by the Company, and
whether the Company’s proposals were in fact necessary or
even likely to improve either the Company’s financial situa-
tion or competitive posture. In this regard, it is significant
that on termination of the Syracuse shipping unit, the Com-
pany found it necessary to hire additional shipping employ-
ees at its nonunion Sayre facility and, at Syracuse, assigned
nonunit personnel, including Shipping Manager Fischer, to
perform work previously assigned to unit employees.
As discussed, the Company, in its November 16 presen-
tation, relied, at least in significant part, on Weston’s annual
report or reports and Leta’s survey of other firms engaged
in shipping operations. For the reasons previously discussed,
the Company’s bargaining position was based on asserted fi-
nancial hardship and inability to pay. Therefore, these docu-
ments fell within the omnibus clause of the Union’s request,
i.e., ‘‘other financial documents which would assist the
Union in assessing the Company’s claim of inability to pay.’’
For the foregoing reasons, I find that the Company vio-
lated Section 8(a)(5) and (1) of the Act by failing and refus-
1081STROEHMANN BAKERIES, INC.
ing, with limited exceptions, to furnish the information re-
quested by the Union in its December 10 letter.
3. Whether the Company unlawfully failed or refused
to furnish information requested in the Union’s
January 24 letter
As indicated, the Union by its January 24 letter requested
the Company to furnish certain information concerning the
Company’s pension and 401(k) plan, for the asserted purpose
of ‘‘preparation for the bargaining for a successor collective
bargaining agreement.’’ The Company responded, in sum,
that in view of its decision to eliminate the bargaining unit,
the Union’s request was moot, although the Company was
prepared to furnish such information insofar as relevant to ef-
fects bargaining. The Company also questioned the Union’s
good faith in requesting the information at this late date. The
Union subsequently made clear that it would not meet to en-
gage in effects bargaining, and the information was never
furnished.
If the Company had properly failed or refused to furnish
information requested in the Union’s December 10 letter,
then its position with respect to the January 24 request would
probably be well taken. As found, the Company unlawfully
failed or refused to honor most of the December 10 request.
Therefore, the Company, and not the Union, was responsible
for the failure of the parties to resume negotiations. The mat-
ter of a successor contract remained subject to further nego-
tiations, pending receipt of the information requested in the
December 10 letter. Therefore, the Union’s January 24 letter
was timely.
Information concerning employee fringe benefits, including
the cost, coverage, and financing of retirement programs, is
presumptively relevant and reasonably necessary to a union
in carrying out its collective-bargaining functions, particu-
larly during ongoing negotiations. See Baldwin Shop ’N
Save, 314 NLRB 114, 121 (1994), and cases cited and dis-
cussed therein. It is immaterial that the Union previously de-
clined to reopen its 1990–1993 contract to negotiate changes
in health and retirement coverage. The parties were in the
process of negotiating a successor contract, the Company
proposed changes in fringe benefit coverage, and the Union
anticipated that it would present its own proposals on receipt
of requested information. The Company violated Section
8(a)(5) and (1) of the Act by failing and refusing to furnish
the information requested by the Union in its January 24 let-
ter.
4. Whether the Company violated Section 8(a)(1) and
(5) of the Act through its meetings with Union
Steward Cleavenger
On the basis of the credited testimony previously dis-
cussed, I find the Company violated Section 8(a)(1) and (5)
of the Act by bypassing the Union and dealing directly with
its employees concerning terms and conditions of employ-
ment and promising them benefits in exchange for employee
decertification of the Union.
As found, Union Steward Cleavenger initially raised the
subject of decertification with General Manager Leta. Leta
however picked up on that topic. Thereafter, and until their
third and final meeting, they discussed terms and conditions
of employment to be implemented if and when the employ-
ees decertified the Union. Cleavenger made clear, and Leta
so understood, that Cleavenger was not speaking in his ca-
pacity as union steward, was speaking and acting in deroga-
tion of the Union’s status as bargaining representative, and
purported to speak on behalf of himself and employees who
sought to get rid of the Union. Therefore, the Company’s re-
liance on Colorado-Ute Electric Assn., 295 NLRB 607, 622–
623 (1989), is misplaced.
General Manager Leta promised Cleavenger that in the
event of decertification, the employees would receive bene-
fits which exceeded those proposed to the Union. In dealing
with the Union, the Company indicated that three or four
jobs would remain. In talking to Cleavenger, Leta indicated
that four jobs would remain. Leta told Cleavenger that wages
would be roughly in the same range as at Sayre, although
the Company had proposed to the Union wage rates of about
$1 per hour below the Sayre level. Leta also assured Clea-
venger that terminated employees could get an additional 30
days of paid health care coverage, although this was not in-
cluded in the Company’s contract proposal. Leta, after con-
sultation with Director of Industrial Relations Spehalski, indi-
cated that employees Awad and Gorman could take vol-
untary layoff, with the understanding that the Company
would not object to their receiving unemployment compensa-
tion. Leta also promised that the employees would receive
the same 401(k) employer contribution and health care bene-
fits as the Sayre employees, although these matters (included
in the Company’s contract proposal) were pending negotia-
tion between the Company and the Union.
I am not persuaded by the Company’s argument that it had
no motivation to bypass the Union and deal directly with the
employees, or promise benefits in exchange for decertifica-
tion of the Union, because decertification could not be effec-
tuated by the Company’s February 1 deadline, or because the
Company intended to go ahead with its plans regardless of
whether the employees supported the Union’s position. The
Company was well aware or certainly had good reason to be-
lieve that, by such dealing, it could undermine the Union’s
ability either to resist the Company’s demands at the bargain-
ing table or to strike in the event of a failure to reach agree-
ment. By its dealings with and promises made to Union
Steward Cleavenger, the Company violated Section 8(a)(1)
and (5) of the Act. Medo Photo Supply Corp. v. NLRB, 321
U.S. 678, 684 (1944); General Electric Co., 150 NLRB 192,
194 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied
397 U.S. 965 (1970); Tyson Foods, 311 NLRB 552, 566–567
(1993); Detroit Edison Co., 310 NLRB 564 (1993); Fabric
Warehouse, 294 NLRB 189, 192 (1989); Armour Oil Co.,
253 NLRB 1104, 1108–1109 (1981).
As found, the Company did not promise Cleavenger a
sales position in exchange for decertification. By that time,
Leta informed Cleavenger that decertification was no longer
an option. The question of alternative employment for dis-
placed unit employees however was a mandatory subject for
bargaining between the Company and the employees.
Cleavenger was not, or might not be, the only unit employee
interested in transferring to a sales or other nonunit position.
By telling Cleavenger that he could have the next available
sales job, the Company bypassed the Union and dealt di-
rectly with an employee concerning a mandatory subject of
bargaining. The Company thereby violated Section 8(a)(1)
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and (5) of the Act. Otis Elevator Co., 283 NLRB 223, 225
(1987).
5. Whether the Company violated Section 8(a)(1) and
(5) of the Act by unilaterally eliminating all unit
positions and reassigning unit work to
nonunit personnel
For the reasons previously discussed, the Company’s uni-
lateral change in its operations, by which it terminated all
unit positions and reassigned unit work to nonunit personnel,
was a mandatory subject of bargaining. The Company vio-
lated its bargaining obligation by failing and refusing to fur-
nish the Union with requested information which was and is
relevant and necessary to the Union’s performance of its du-
ties as bargaining representative and, in particular, relevant
and necessary for the ongoing negotiations, including nego-
tiations over the Company’s proposed changes. The Com-
pany further violated its bargaining obligation in bypassing
the Union and dealing directly with its employees concerning
their terms and conditions of employment. Therefore, there
was no genuine impasse in negotiations, and the Company
violated Section 8(a)(1) and (5) by failing and refusing to
bargain in good faith with the Union prior to relocating the
unit work. See Pertec Computer, 284 NLRB 810, 812
(1987), supp. decision in 298 NLRB 609 (1990), enfd. as
modified sub nom. Olivetti Office USA, Inc. v. NLRB, 926
F.2d 181, 189 (2d Cir. 1991), cert. denied 502 U.S. (1991);
Dahl Fish Co., 279 NLRB 1084 fn. 3 (1986), enfd. 813 F.2d
1254 (D.C. Cir. 1987); Palomar Corp., 192 NLRB 592, 597–
598 (1971), enfd. 465 F.2d 731, 735 (5th Cir. 1972); A.M.F.
Bowling Co., 303 NLRB 167, 170 (1991), enf. denied on
other grounds 977 F.2d 141 (4th Cir. 1992); Clemson Bros.,
supra; Coalite, Inc., 278 NLRB 293, 303 (1986); and Mary
Ann’s Bakery, 267 NLRB 992, 994 (1983).
CONCLUSIONS OF LAW
1. The Company 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. All shipping and sanitation employees at the Company’s
Syracuse, New York facility, excluding all office clerical em-
ployees, foremen, nonshipping employees, and supervisors as
defined in the Act constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been and is the ex-
clusive collective-bargaining representative of the employees
in the unit described above.
5. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, the Company has engaged and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The Company has been and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act by
unilaterally eliminating all unit positions and reassigning unit
work to nonunit personnel, without having afforded the
Union an opportunity to negotiate and bargain with respect
to such matter, by failing and refusing to furnish the Union
with requested information which is necessary for, and rel-
evant to, the Union’s performance of its function as bargain-
ing representative, and by bypassing the Union and dealing
directly with its employees concerning proposed terms and
conditions of employment.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (5) of the Act, I shall recommend that
it be required to cease and desist therefrom and from any
like or related unlawful conduct. I shall also recommend that
the Company be ordered to furnish the Union with the infor-
mation requested by the Union in its letters of December 10
and January 24, including current information.
The General Counsel has requested a remedial order which
would ‘‘fully restore the status quo ante.’’ (Br. p. 27.) I take
this to mean that the General Counsel is requesting an order
which would require restoration of the Company’s Syracuse
shipping and sanitation operation and a conventional rein-
statement and backpay order for the terminated unit employ-
ees.
The cases cited by the General Counsel in support of its
request (Br. fn. 16) involved the Board’s remedy for dis-
criminatory relocation, subcontracting, or abolition of jobs or
work. In such cases, the Board has held that it will usually
order restoration of the operation in question, and reinstate-
ment of the discriminatorily terminated employees, unless
restoration of the status quo would be ‘‘unduly burden-
some.’’ Lear Siegler, Inc., 295 NLRB 857, 861 (1989). The
Board however, with Supreme Court approval, has also uti-
lized the same remedial standard where the relocation or
other change in operation was effectuated in violation of the
employer’s bargaining obligation, albeit not alleged as dis-
criminatory conduct. See Fibreboard Corp., 138 NLRB 550,
554–555 (1962), affd. 379 U.S. 203, 216 (1964). The Su-
preme Court’s decision in Fibreboard was cited as remedial
authority by the Board in Lear Siegler, supra, and by the
Court in Olivetti USA, Inc. v. NLRB, supra at 182 fn. 4.
I find that the present case is appropriate for a remedy
which would restore the status quo ante, including restoration
of the unit operation and a conventional reinstatement and
backpay order. Such remedial relief would not unduly burden
the Company. The Company’s change in operations did not
involve any capital expenditure or even transfer of equip-
ment. The Syracuse facility remains open, functioning, and
fully capable of handling the same shipping functions which
it performed prior to February 11. In sum, the Company did
little more than reroute its deliveries destined for the upstate
New York area, and reassign functions previously performed
by unit employees to other nonunit personnel (shipping em-
ployees at Sayre), and drivers, driver-salesmen, store clerks,
the former shipping manager, and a cleaning contractor at
Syracuse. Restoration of the former Syracuse shipping oper-
ation would predictably entail relatively little expense or in-
convenience.
As discussed, the Company asserted to the Union, in sum,
that it needed to eliminate the unit positions in order to stem
heavy financial losses. Whether such was the case and
whether elimination of all or some unit positions, or changes
in the operation, are warranted are matters which may be dis-
cussed or negotiated between the Company and the Union,
1083STROEHMANN BAKERIES, INC.
7 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
9 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
once the Company has provided the requested information
which will enable the Union to present informed responses
to the Company’s contract proposal. As indicated, there is a
genuine question concerning the relation between the Com-
pany’s asserted financial losses and the effectuated changes,
e.g., in view of the fact that the Company found it necessary
to hire additional shipping employees at Sayre in order to
perform work previously performed by the unit employees.
Reinstatement for the terminated unit employees, without
restoration of the Syracuse unit operation, would not provide
an adequate remedy. Absent restoration, there probably
would not be positions available at Syracuse for most of the
terminated employees. It would be unduly burdensome on
the employees to permit the Company to fulfill its reinstate-
ment obligations by offering the employees positions at other
facilities outside the Syracuse area, e.g., at Sayre.
I have also taken into consideration the fact that there has
been no unreasonable delay in the processing of this case.
The events at issue occurred during the past year. Compare
Olivetti USA, above at 190. With the cooperation of the par-
ties, this litigation has proceeded expeditiously. Hopefully,
this will continue. The parties informed me that the Board
petitioned for 10(j) injunctive relief in this case. Therefore,
the Company was aware at an early stage of the proceedings
that the General Counsel was seeking at least a temporary
restoration of the Syracuse unit operation.
Therefore, I am recommending that the Company be or-
dered to restore and resume its Syracuse shipping operation,
to offer the terminated unit employees immediate and full re-
instatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of earnings and benefits that they
may have suffered from the time of their termination to the
date of the Company’s offer of reinstatement. Backpay shall
be computed in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).7 It will also be recommended that the Company
be required to preserve and make available to the Board or
its agents, on request, payroll and other records to facilitate
the computation of backpay due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Stroehmann Bakeries, Inc., Syracuse,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively and in good
faith with Bakery, Confectionery and Tobacco Workers
Local Union No. 116 as the exclusive collective-bargaining
representative of the employees in the appropriate unit by:
unilaterally eliminating unit positions, relocating or reassign-
ing unit work to nonunit personnel, or otherwise changing
the wages, hours, and other terms and conditions of employ-
ment of unit employees, without prior notice to the Union or
without affording the Union an opportunity to negotiate and
bargain concerning such changes or the effects of such
changes; failing or refusing to furnish the Union with infor-
mation and data which is relevant and necessary to its func-
tion as bargaining representative; or bypassing the Union and
dealing directly with unit employees concerning their terms
and conditions of employment.
(b) Promising employees benefits if they decertify or oth-
erwise withdraw support for the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore and resume its Syracuse, New York shipping
and sanitation operation, in a manner consistent with the
level and manner of operation that existed before the unit po-
sitions were eliminated on February 11, 1994; offer Frederick
J. Awad, Anthony J. Bradke, Stephen R. Braungart, David A.
Cleavenger, Robert L. Donegan, Thomas J. Ford, John J.
Gorman, Charles E. Shelley, Thomas E. Stack, and John E.
Stapleton immediate and full reinstatement to their former
jobs or, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings and benefits they may have suffered from the time of
their termination to the date of Respondent’s offer of rein-
statement, as set forth in the remedy section of this decision.
(b) Promptly furnish the Union with the information re-
quested by its letters of December 10, 1993, and January 24,
1994, including current information.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Syracuse, New York facility copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1084 DECISIONS OF THE 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 have
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to bargain collectively and in
good faith with Bakery, Confectionery and Tobacco Workers
Local Union No. 116 as the exclusive collective-bargaining
representative of the employees in the appropriate unit by:
unilaterally eliminating unit positions, relocating or reassign-
ing unit work to nonunit personnel, or otherwise changing
the wages, hours, and other terms and conditions of employ-
ment of unit employees without prior notice to Local 116 or
without affording Local 116 an opportunity to negotiate and
bargain concerning such changes or the effects of such
changes; failing or refusing to furnish Local 116 with infor-
mation and data which is relevant and necessary to its func-
tion as bargaining representative; or bypassing Local 116 and
dealing directly with unit employees concerning their terms
and conditions of employment. The appropriate unit is:
All shipping and sanitation employees at our Syracuse,
New York facility, excluding all office clerical employ-
ees, foremen, non-shipping employees, and supervisors
as defined in the Act.
WE WILL NOT promise you benefits if you decertify or
otherwise withdraw support for Local 116.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL restore and resume our Syracuse, New York
shipping and sanitation operation, in a manner consistent
with the level and manner of operation that existed before
the unit positions were eliminated on February 11, 1994; WE
WILL offer Frederick J. Awad, Anthony J. Bradke, Stephen
R. Braungart, David A. Cleavenger, Robert L. Donegan,
Thomas J. Ford, John J. Gorman, Charles E. Shelley, Thom-
as E. Stack, and John E. Stapleton immediate and full rein-
statement to their former jobs, or to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole for
any loss of earnings and benefits they may have suffered
from the time of their termination to the date of our offer
of reinstatement, with interest.
WE WILL promptly furnish Local 116 with the information
requested by its letters of December 10, 1993, and January
24, 1994, including current information.
STROEHMANN BAKERIES, INC.