Sara Lee Bakery Group, Inc. v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SARA LEE BAKERY GROUP, 
INCORPORATED, formerly known as
The Earthgrains Company,
Petitioner,
 No. 02-1115
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.  No. 02-1254
THE EARTHGRAINS COMPANY,
Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-18295, 11-CA-18339)
Argued: December 3, 2002
Decided: February 21, 2003
Before WILKINSON and KING, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
2 SARA LEE BAKERY GROUP v. NLRB
COUNSEL
ARGUED: Charles Preyer Roberts, III, CONSTANGY, BROOKS &
SMITH, L.L.C., Winston-Salem, North Carolina, for Sara Lee. Wil-
liam M. Bernstein, Senior Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Board. ON BRIEF: Arthur
F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Frederick C. Havard,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
There are two questions before the court: (1) whether there is sub-
stantial evidence to support a finding by the National Labor Relations
Board (Board) that The Earthgrains Company (Earthgrains) unlaw-
fully withheld a wage increase from employees scheduled to vote in
a Board-conducted union representation election in violation of sec-
tions 8(a)(1) & (3) of the National Labor Relations Act (NLRA), 29
U.S.C. § 151 et seq. (2002); and (2) whether there is substantial evi-
dence to support the Board’s findings of other unfair labor practices
by Earthgrains in violation of section 8(a)(1) of the NLRA. We hold
that there is substantial evidence in the record to support the findings
on both issues. Accordingly, we deny Earthgrains’ petition for review
and grant the Board’s cross-application for enforcement.
I.
On August 19, 1998, Earthgrains1 purchased the Palmetto Bakery
1
Sara Lee Bakery Group, Inc., the named petitioner in this case, was
created by the merger of its parent company, Sarah Lee, and Earthgrains.
For simplicity, we will refer to the petitioner as "Earthgrains."
SARA LEE BAKERY GROUP v. NLRB 3
Company (Palmetto) in Orangeburg, South Carolina. On December
22, 1998, Earthgrains posted a notice advising its employees that it
was raising the starting wage rate and progression for employees in
their first year of employment. The notice also stated, "We are cur-
rently reviewing all job rates for a planned increase in the new fiscal
year which begins in April. This adjustment will take into account
increases in inflation as well as the recently announced increase in the
insurance co-pay."2 (J.A. 860).
In January of 1999, Earthgrains posted a notice containing the new
wage rates, including the new wage rates for the maintenance depart-
ment’s category A, B, and C mechanics. Thereafter, Plant Manager
David Maxwell met with maintenance employees to discuss those
new rates. At that time, Maxwell advised the maintenance employees
that Earthgrains only gave cost-of-living raises. On January 27, Max-
well posted a memorandum to all employees repeating the December
statement: "We are currently reviewing all job rates for a planned
increase in the new fiscal year which begins in April." (J.A. at 862).
In November of 1998, maintenance employee Dannie Dukes had
contacted the International Brotherhood of Electrical Workers Local
Union 776 (Union) regarding representation of Earthgrains’ mainte-
nance employees. On March 2, 1999, the Union wrote Earthgrains a
letter stating that it represented a majority of Earthgrains’ "Mainte-
nance Mechanics." The letter requested that Earthgrains meet with the
Union to confirm the Union’s claim of majority and to schedule
collective-bargaining negotiations. On March 8, the Union filed a
petition with the Board for a representation election. By letter dated
March 9, Earthgrains refused to recognize the Union. On March 16,
however, the Union and Earthgrains entered into a "Stipulated Elec-
tion Agreement" that provided for a secret-ballot election on April 21
by nineteen maintenance department employees.
On March 18, Earthgrains instructed maintenance supervisor Eric
Antley to speak about the Union campaign to the employees under his
supervision. Furnished with three pages of Earthgrains’ written "talk-
2
Prior to Earthgrains’ acquisition of this facility, Palmetto historically
had given wage increases in June. Palmetto gave its last wage increase
on June 5, 1998.
4 SARA LEE BAKERY GROUP v. NLRB
ing points," Antley met with employees Charles Free, Johnnie Crider,
Paul Jennings, Sheck Nettles, and Dannie Dukes on an individual
basis. Antley advised each employee that Earthgrains’ management
did not believe that Union representation was in the best interest of
the employees or of the company.
During the course of these conversations, Antley made many state-
ments regarding Union representation and the effect that it would
have on the maintenance employees. To Free, Antley stated that the
maintenance employees "probably would lose everything that [they]
already had with [Earthgrains] as far as 401(k) or benefit packages"
if they selected the Union, and that they would not receive a raise on
April 1 "because [they] were Union active and the Union may see that
as a bribe." Antley warned Free that the employees "better not be
caught talking Union on the job," and that "[t]he only place that [they]
could talk about it would be in the canteen or out of [their] work
place." (J.A. at 358-59). To Crider, Antley stated that if the employ-
ees chose Union representation, their insurance and pay would be
"whatever the Union could get," but that he "could almost guarantee
it wouldn’t be what the rest of the bakery got." He added that he was
"real disappointed in [Crider] personally for starting something like
this." Crider had been openly displaying a Union "facts" book on his
tool cart, and Antley told him that "it was illegal to have Union litera-
ture on the job," and that Crider must have his Union literature "out
before . . . morning, before people start[ ] coming in on the day shift."
He concluded by telling Crider that employees "couldn’t talk about
the Union during work hours, only during breaks." (J.A. at 321-25).
To Jennings, Antley stated that Earthgrains would not give the
maintenance employees an April raise because it would be like "driv-
ing [the employees] to vote against the Union." Antley also told Jen-
nings that the Union could do nothing for the employees with respect
to benefits and that if the Union came in, Earthgrains would have to
"go through the Union." (J.A. at 271-72). To Nettles, Antley stated
that Earthgrains "didn’t want a Union in the bakery, and anybody
involved with the Union in part or whole would have no further
advancement or increase in pay if they were in any way connected
with the Union." (J.A. at 55-56). Antley went on to state that the bak-
ery staff was going to receive an increase of seventy cents per hour,
and that anyone involved in the Union would not receive this
SARA LEE BAKERY GROUP v. NLRB 5
increase. Finally, Antley stated to Dukes that the maintenance
employees would not receive a raise on April 1 "[b]ecause the Union
would file charges against the bakery for saying they were trying to
bribe the employees . . . to not vote for the Union." Antley also told
Dukes that the employees could lose their benefits and pay raise if the
Union was voted in, but that "if the Union was voted out, then the
raise would be given." (J.A. at 123).
A separate incident involving Dukes occurred with a different
supervisor. Earthgrains’ Sanitation Manager Gene Rodoski noticed
that Dukes was wearing a Union hat and asked Dukes where he could
get a Union jacket. Dukes replied that if Rodoski would sign up for
the Union, he would make sure that Rodoski received a jacket. In
response, Rodoski told Dukes that the handbook forbid employees
from wearing advertisements other than those on the company uni-
form. The two men then parted with no further conversation.
On March 22 and 23, Maxwell met with each shift of the mainte-
nance employees and discussed the wage increase issue. He read from
a script, and after reviewing his prior discussions with employees
concerning the ongoing review of a wage increase, Maxwell
announced:
We have now completed that review and will be giving
plant employees a pay increase effective April 4, 1999. We
are not able to give our maintenance department employees
a pay increase at this time however.
Because of the Union election scheduled for our mainte-
nance employees for April 21, 1999, we cannot give those
employees a pay increase because the Union could accuse
[Earthgrains] of trying to buy votes and could file charges
against the company with the Labor Board. This is why we
cannot give you a pay increase at this time.
Once the election is over, if the Union is defeated we can
give you a pay increase just like our other employees here.
If the Union is voted in, however, your pay is something
that would have to be negotiated.
6 SARA LEE BAKERY GROUP v. NLRB
(J.A. 863-64). As promised, on April 4, all plant employees except the
maintenance employees received a seventy cent per hour increase. At
a meeting of all employees on April 13, Maxwell again stated that the
maintenance employees would not receive the wage increase because
of the impending April 21 election.
On April 16, Earthgrains’ Senior Vice President Talmage Miles
came to the Orangeburg facility and addressed the maintenance
employees. Among other things, Miles told the employees that "there
were no promises period," and that if the Union was voted in, "every-
thing [would be] negotiable from that point." (J.A. at 490). On April
21, the election was held, and the maintenance employees voted
against Union representation by a margin of 16 to 2. Following the
April 21 election loss, the Union filed objections to the election and
an unfair labor practices complaint with the Board.3 After this filing,
the Board’s General Counsel issued a consolidated complaint alleging
that Earthgrains had violated sections 8(a)(1), (3), & (5) of the NLRA.
A hearing was held before Administrative Law Judge George Carson,
II (ALJ) in September of 1999. On December 1, 1999, the ALJ issued
a proposed order recommending that the Board find that Earthgrains
committed unfair labor practices by: (1) coercively interrogating
employees; (2) imposing a gag rule prohibiting Union discussions; (3)
forbidding possession of Union literature; (4) advising employees that
wearing Union insignia violated plant rules; (5) threatening employ-
ees with loss of benefits and less favorable working conditions
because of their Union sympathies; (6) advising employees that the
wage increase was being withheld from them because of their Union
activities; (7) promising a wage increase if the Union was voted out;
and (8) withholding a wage increase from the employees in the col-
lective bargaining unit because of those employees’ Union activity.
Earthgrains filed exceptions to the ALJ’s proposed order, and on
December 3, 2001, the Board issued a decision adopting the ALJ’s
recommendations in all material respects. The Board’s order (1)
required Earthgrains to cease and desist from unfair labor practices
violating employees’ rights under section 7 of the NLRA; (2) directed
3
On May 5, Antley told the maintenance employees that objections to
the election had been filed and that they would not receive their raise
"until this issue was settled." However, the maintenance employees did
receive the seventy cent per hour increase, effective June 6.
SARA LEE BAKERY GROUP v. NLRB 7
Earthgrains to make its maintenance employees whole for the loss of
earnings and benefits; and (3) ordered Earthgrains to post copies of
a remedial notice.4 On January 2, 2002, Earthgrains filed a petition for
review with this court, and the Board filed a cross-application for
enforcement on March 4, 2002.
II.
The findings of the Board as to questions of fact are conclusive if
supported by substantial evidence on the record when considered as
a whole. 29 U.S.C. § 160(e) (2002); NLRB v. CWI of Maryland, Inc.,
127 F.3d 319, 330 (4th Cir. 1997). Determining whether substantial
evidence exists requires an "objective assessment of the sufficiency
of the evidence." Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 840
(4th Cir. 2000). "Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’"
Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir. 1998) (quot-
ing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Further-
more, "[s]ubstantial evidence is more than a scintilla, but less than a
preponderance." Id. (internal quotations omitted). If faced with two
conflicting views, we must defer to the Board’s determination rather
than substitute our own assessment. Weis Mkts., Inc. v. NLRB, 265
F.3d 239, 243 (4th Cir. 2001). Accordingly, we must affirm the
Board’s construction of the NLRA if that interpretation is "reasonably
defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 497 (1979).
III.
Section 7 of the NLRA guarantees that
[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
4
The Board’s ruling also sustained seven of the Union’s objections
regarding the election itself, and ordered that the April 21 election be set
aside and that a new election be conducted. A Board order directing a
second election is not a final order under 29 U.S.C. § 160(f), and there-
fore is not directly reviewable by this court. Firestone Synthetic Fibers
Co. v. NLRB, 374 F.2d 211, 213 n.3 (4th Cir. 1967).
8 SARA LEE BAKERY GROUP v. NLRB
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection . . . .
29 U.S.C. § 157 (2002). Section 8 of the NLRA states in pertinent
part that
[i]t shall be an unfair labor practice for an employer (1) to
interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 . . . (3) by discrimina-
tion in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage
membership in any labor organization . . . .
29 U.S.C. §§ 158(a)(1) & (3) (2002). Earthgrains raises two issues in
this petition for review. First, Earthgrains contends that the Board
incorrectly concluded that it unlawfully withheld a wage increase
from its maintenance employees in violation of sections 8(a)(1) & (3).
Second, Earthgrains argues that the Board’s findings of additional,
independent unfair labor practices under section 8(a)(1) are not sup-
ported by sufficient evidence. We will address each argument in turn.
A. WAGE INCREASE WITHHOLDING
Earthgrains contends that the Board erred in determining that its
failure to grant the April wage increase to the employees involved in
the Union election was an unfair labor practice. Earthrains argues that
it was compelled to withhold the increase for fear of violating the
NLRA. In determining whether an employer may grant or withhold
a wage increase prior to a union election, the Board has explained that
an employer must maintain the status quo. According to the Board,
[a]n employer’s legal duty in deciding whether to grant ben-
efits while a representation case is pending is to determine
that question precisely as he would if a union were not in
the picture. If the employer would have granted the benefits
because of economic circumstances unrelated to union orga-
nization, the grant of those benefits will not violate the Act.
On the other hand, if the employer’s course is altered by vir-
tue of the union’s presence, then the employer has violated
the Act . . . .
SARA LEE BAKERY GROUP v. NLRB 9
McCormick Longmeadow Stone Co., Inc., 158 N.L.R.B. 1237, 1242
(1966). Thus, an employer has a duty during the election process not
to "change the status quo if the change may reasonably affect the out-
come of the pending election." ATC/Vancom of California, L.P., No.
31-CA-24875, 2001 N.L.R.B. LEXIS 1003, at **11-12 (Dec. 14,
2001). This court specifically addressed the status quo standard in
Southern Maryland Hosp. Center v. NLRB, 801 F.2d 666 (4th Cir.
1986). In that case, we articulated a two-part analysis for employers
evaluating whether to withhold a wage increase:
The initial determination . . . is whether an employer by
promises or by a continuous course of conduct has made a
particular benefit part of its "established practice." The focus
in such a situation should be upon the employer, who is con-
fronted with the dilemma of deciding whether his past
promises or grants of benefits have created a clear status
quo that he must maintain during the pre-election period.
The standard then is whether it would be clearly apparent to
an objectively reasonable employer that his grant or denial
of a benefit, at the time the action is taken, conforms to the
status quo.
Id. at 669 (emphasis in original) (internal citations omitted).
Under Southern Maryland’s test, the first step is to determine
whether the proposed wage increase has become part of an "estab-
lished practice." Id. While it is true that Earthgrains had only recently
acquired Palmetto and therefore had no past history at the Orangeburg
facility, the Southern Maryland test does not require a lengthy
employer history. Under Southern Maryland, a particular benefit can
become part of an "established practice" simply by promises. Id. In
this case, repeated statements by Earthgrains’ management regarding
a "planned increase in the new fiscal year which begins in April"
would certainly constitute promises of a raise to listening employees.
Accordingly, we find that the proposed wage increase was sufficiently
promised to become part of the "established practice."
The second step of the Southern Maryland test requires determin-
ing "whether it would be clearly apparent to an objectively reasonable
employer that his grant or denial of a benefit, at the time the action
10 SARA LEE BAKERY GROUP v. NLRB
is taken, conforms to the status quo." Id. Given Earthgrains’ repeated
promises of an upcoming wage increase in April, it should have been
apparent to Earthgrains that granting the wage increase to all of its
employees, whether part of the Union drive or not, would have been
in conformance with the status quo. Earthgrains’ withholding of the
wage increase was therefore unreasonable and a violation of the
NLRA.
Even if the wage increase had not become part of the status quo,
Earthgrains still violated the NLRA because the withholding was
motivated by anti-union sentiment. Id. ("[W]hen there is no estab-
lished practice of granting benefits, the General Counsel must show
that the employers’ withholding of particular benefits was motivated
by anti-union sentiment to prove a violation of the Act." (internal
quotations omitted)). The record reflects that anti-union animus
directly motivated Earthgrains’ statements and actions. By public
announcement, Earthgrains advised its maintenance employees that
the Union was the cause of the wage withholding.5 Management
clearly attempted to manipulate employee opinion against the Union,
and the evidence of this anti-union sentiment is sufficient to support
the Board’s ruling.
5
In NLRB v. Dorn’s Transportation Co., 405 F.2d 706 (2d Cir. 1969),
the Second Circuit, in finding no NLRA violation in a wage withholding
case, stated that it was "not a situation where the employer has by public
announcement specifically advised the employees that the union is caus-
ing them to lose a wage increase they would otherwise have received."
Id. at 715. In this case, Plant Manager Maxwell did just that:
Because of the Union election scheduled for our maintenance
employees for April 21, 1999, we cannot give those employees
a pay increase because the Union could accuse [Earthgrains] of
trying to buy votes and could file charges against the company
with the Labor Board. This is why we cannot give you a pay
increase at this time.
Once the election is over, if the Union is defeated we can give
you a pay increase just like our other employees here. If the
Union is voted in, however, your pay is something that would
have to be negotiated.
(J.A. 863-64).
SARA LEE BAKERY GROUP v. NLRB 11
B. MISCELLANEOUS UNLAWFUL THREATS AND
INTERROGATIONS
The right of employees to form and join unions is guaranteed by
section 7 of the NLRA. Section 8(a)(1) of the NLRA protects that
right by making it an unfair labor practice for an employer "to inter-
fere with, restrain, or coerce employees" in the exercise of their sec-
tion 7 rights. 29 U.S.C. § 158(a)(1) (2002). When analyzing whether
an employer’s statements or actions are coercive under the NLRA, it
is important to note that this factual question is one best answered by
the Board’s special expertise. See J.P. Stevens & Co., Inc. v. NLRB,
638 F.2d 676, 687 (4th Cir. 1980) ("The coercive effect of an employ-
er’s speech in a particular labor relations setting, ‘is a question essen-
tially for the specialized experience of the NLRB.’" (quoting Daniel
Constr. Co. v. NLRB, 341 F.2d 805, 811 (4th Cir. 1965))). The Board,
in making this decision, considers whether "the conduct in question
had a reasonable tendency in the totality of the circumstances to
intimidate." Standard-Coosa-Thatcher Carpet Yarn Div., Inc. v.
NLRB, 691 F.2d 1133, 1137 (4th Cir. 1982) (internal quotations omit-
ted). In the instant case, the Board found that Earthgrains engaged in
a series of section 8(a)(1) violations in response to its maintenance
employees’ Union organization efforts.
1. Coercive Interrogations
While questioning employees about union sentiments is not per se
unlawful activity, an employer may not interrogate its employees in
a coercive fashion. NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965
(4th Cir. 1985). Several factors go into the Board’s evaluation of
coercion: "the history of employer hostility to the union, the nature of
the information sought, the identity of the questioner, and the place
and method of the questioning." Id. at 966. In determining whether
there was intimidation, the Board must also "‘take into account the
economic dependence of the employees on their employers, and the
necessary tendency of the former, because of that relationship, to pick
up intended implications of the latter that might be more readily dis-
missed by a more disinterested ear.’" Id. at 965 (quoting NLRB v. Gis-
sel Packing Co., 395 U.S. 575, 617 (1969)). Here, the conditions of
Antley’s individual interrogations of maintenance employees made
such employer hostility to the Union plain. He took the workers late
12 SARA LEE BAKERY GROUP v. NLRB
at night and one by one to his office for what were clearly coercive
conversations or lectures.6
2. Gag Rule and Prohibition of Union Paraphernalia
Soliciting support for a union and distributing union literature are
two essential activities protected by the NLRA. Consol. Diesel Co. v.
NLRB, 263 F.3d 345, 352 (4th Cir. 2001). Furthermore, "the work-
place is ‘uniquely appropriate’ for such activities, so long as the activ-
ities are conducted in nonwork areas during nonwork time and in a
non-abusive manner." Id. at 352 (quoting Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801 n.6 (1945) (internal citations omitted)).
Thus, no-solicitation and no-distribution rules can be valid in the
workplace, provided that they are not selectively applied against pro-
union activity and do not spring up only when union activities begin.
Opryland Hotel, 323 N.L.R.B. 723, 728-29 (1997).
In this case, while the existing Earthgrains policy regarding no-
solicitation and no-distribution was lawful, Antley went beyond that
policy by imposing a gag rule and prohibiting Union literature.7
Rather than simply stopping solicitation attempts or requesting the
employees not to pass out Union fliers, Antley ordered the mainte-
nance employees not to speak about the Union at all while at work.
Antley also told Crider that it was illegal even to possess Union litera-
ture on the job. There is no evidence that Earthgrains previously
restricted its employees’ conversation topics in such a fashion.
Accordingly, we find sufficient evidence to support the Board’s find-
ing on this section 8(a)(1) violation.
6
The Board has declared a supervisor’s office a "locus of authority,"
and the fact that questioning occurs there enhances the coercive effect of
an interrogation. Double D Constr. Group, Inc., No. 12-CA-21951, 2002
N.L.R.B. LEXIS 414, at *25 (Sept. 10, 2002).
7
The fact that Antley misstated Earthgrains’ lawful policy is of no con-
sequence. We find no merit in Earthgrains’ contention that Antley was
merely a low-level manager with little authority. Accordingly, Earth-
grains cannot be excused by Antley’s incorrect interpretation of the pol-
icy.
SARA LEE BAKERY GROUP v. NLRB 13
The Board also found a violation of section 8(a)(1) in Rodoski’s
statement to Dukes that he could not wear a hat with a Union insignia
on it. A rule restricting any personal display of union insignia on the
job is presumptively unlawful. Republic Aviation, 324 U.S. at 803.
The rule, however, is not absolute. "Rather, the right to wear union
insignia can be abridged when the employer demonstrates that special
circumstances exist which justifies [sic] the banning of union insig-
nia." E. Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 424 (4th Cir.
1999). "[S]ubstantial evidence of special circumstances, such as inter-
ference with production or safety, is required before an employer may
prohibit the wearing of union insignia, and the burden of establishing
those circumstances rest [sic] upon the employer." Gov’t Employees,
278 N.L.R.B. 378, 385 (1986) (internal citations omitted).
The Board found that Earthgrains did not prove any special circum-
stances that would overcome the presumption that prohibiting union
insignia is unlawful. Earthgrains argues that Rodoski’s statement was
innocuous because Dukes continued to wear his hat after the encoun-
ter. However, a showing of actual coercion is not required. If "the
conduct in question had a reasonable tendency in the totality of the
circumstances to intimidate," this is sufficient. Corrie Corp. of
Charleston v. NLRB, 375 F.2d 149, 153 (4th Cir. 1967). Rodoski’s
statement implied that Dukes would suffer adverse consequences if he
did not remove the Union insignia. Morever, the record reflects that
Earthgrains consistently allowed bakery members to wear parapher-
nalia advertising vendors, and no manager had previously told Dukes
that he could not wear a hat with advertising. These facts are suffi-
cient to support the Board’s finding of a violation in this instance.
3. Threats of Loss of Benefits and Unfavorable
Working Conditions
It is a general rule that employers violate the NLRA if they threaten
their employees with reprisal because of the employees’ union activ-
ity. Equitable Gas Co. v. NLRB, 966 F.2d 861, 866 (4th Cir. 1992).
An employer also violates the NLRA if it promises its employees
benefits if they reject a union. NLRB v. Gen. Wood Preserving Co.,
905 F.2d 803, 808 (4th Cir. 1990). The Board found that Antley
threatened employees Free, Crider, Jennings, Nettles, and Dukes in
the course of discussing Earthgrains’ "talking points." In addition, the
14 SARA LEE BAKERY GROUP v. NLRB
Board found that Plant Manager Maxwell threatened employees with
the loss of the April pay raise and a loss of benefits if the Union was
voted in, and promised a pay increase if the Union was voted out.
Finally, the Board found Vice President Miles made unlawful threats
of a loss of benefits.
There is substantial evidence to support the Board’s findings as to
Antley in his words alone. Antley told Free that the employees "prob-
ably would lose everything that [they] already had with [Earthgrains]
as far as 401(k) or benefit packages" (J.A at 358) and told Dukes that
"if the Union was voted out, then the raise would be given." (J.A. at
123). To Nettles, Antley stated that Earthgrains "didn’t want a Union
in the bakery, and anybody involved with the Union in part or whole
would have no further advancement or increase in pay if they were
in any way connected with the Union." (J.A. at 55-56). We affirm the
Board’s findings as to Antley.
The statements of Maxwell that the Board found objectionable
were all related to the postponement of the April raise. While an
employer is allowed to state that it will withhold a wage increase
pending an election, the employer must also concurrently state that
(1) the benefit will be granted after the election, regardless of the
results, (2) that the sole purpose of the postponement is to avoid the
appearance of influencing the outcome, and (3) that the burden for the
postponement is not on the union. Atl. Forest Prods., 282 N.L.R.B.
855, 858 (1987). Maxwell’s statements on March 22 and 23 fail this
test. Rather than assuring the maintenance employees that their pay
raise would be granted regardless of the election’s result, Maxwell
stated that "[i]f the Union is defeated we can give you a pay increase
just like our other employees here. If the Union is voted in . . . your
pay is something that would have to be negotiated." (J.A. at 864). The
additional statement that "the Union could accuse [Earthgrains] of try-
ing to buy votes and could file charges against [Earthgrains]" does
nothing more than place the blame for the postponement on the
Union. We find sufficient evidence that those statements were threats
in violation of the NLRA.
The Board’s findings as to Vice President Miles’ statements are
also supported by substantial evidence. An employer’s statement that
it will "bargain from scratch" constitutes an impermissible threat if,
SARA LEE BAKERY GROUP v. NLRB 15
in the totality of the circumstances, the statement is likely to be under-
stood by employees as an indication of the employer’s hostile bar-
gaining stance toward a union. See, e.g., NLRB v. Aerovox Corp., 435
F.2d 1208, 1211-12 (4th Cir. 1970) (finding that, taken in context, the
phrase "bargaining starts from scratch" was coercive). Under the cir-
cumstances of this case, Miles’ statements that "there were no prom-
ises period" and "that everything is negotiable from that point" were
coercive. We find substantial evidence to support the Board’s finding
that Miles’ statements were also unlawful threats.
Accordingly, Earthgrains’ petition for review is denied, and the
Board’s cross-application for enforcement is granted.
PETITION FOR REVIEW DENIED; CROSS-
APPLICATION FOR ENFORCEMENT GRANTED