AdvancePierre Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 2018

366 NLRB No. 133 (N.L.R.B. 2018)

366 NLRB No. 133
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
AdvancePierre Foods, Inc., and United Food and
Commercial Workers Union, Local 75 a/w Unit-
ed Food and Commercial Workers International
Union. Cases 09–CA–153966, 09–CA–153973,
09–CA–153986, 09–CA–154624, 09–CA–156715,
09–CA-156746, 09–CA–159692, 09–CA–160773,
09–CA–160779, and 09–CA–162392
July 19, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On June 27, 2016, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. Additionally, the General Counsel
filed cross-exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply 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 decided to
adopt the judge’s rulings, findings,1 and conclusions in
part, to reverse them in part, and to adopt the recom-
mended Order as modified and set forth in full below.2

1 The Respondent excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
2 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language. We shall
substitute a new notice to conform to the modified Order. In accord-
ance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No.
143, slip op. at 1 (2016), we shall modify the judge’s recommended tax
compensation and Social Security reporting remedy. Also, in accord-
ance with our decision in King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), we shall amend the
remedy to require the Respondent to compensate Diana Concepcion for
her search-for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. In addition, we find
merit in the General Counsel’s exception to the judge’s failure to rec-
ommend that the notice be read aloud to employees, assembled on
company time, and will amend the remedy to require a notice-reading.
We find this case merits such a remedy because the Respondent’s vio-
lations of the Act are sufficiently serious and widespread and for the
reasons further explained in the “Amended Remedy” section.
INTRODUCTION
The Respondent operates a food processing and
packaging plant in Cincinnati, Ohio. In March of
2015,3 a few employees contacted the Union about
organizing the Respondent’s 600 food workers. By
early May, employees began to openly distribute
union literature and union authorization cards at or
near the plant. It is undisputed that the Respondent
became aware of the Union’s organizing campaign
by at least May 11.
The judge found that the Respondent violated
Sections 8(a)(3) and (1) of the Act in several re-
spects during the course of the Union’s organizing
campaign, including by maintaining an unlawful
no-solicitation/no-distribution policy, surveilling,
interrogating, and disciplining four employees for
engaging in protected union activity, and soliciting
grievances from employees. We adopt the judge’s
findings on all of the issues,4 and find three addition-

Member Emanuel would not order a reading of the notice, for the
reasons stated in fn. 11 below.
3 All dates are in 2015 unless indicated otherwise.
4 Specifically, we adopt the judge’s findings that the Respondent vi-
olated Sec. 8(a)(1) by maintaining an overbroad no-solicitation/no-
distribution policy, engaging in surveillance by reviewing archived
video footage of Carmen Cotto and Sonja Guzman engaged in distrib-
uting union literature in the employee breakroom; interrogating Cotto
about Guzman’s union activity in the breakroom; engaging in unlawful
surveillance by searching employees’ clipboards for union authoriza-
tion cards; assessing an attendance point to Jessenia Maldonado for
engaging in a protected strike; soliciting employee grievances and
impliedly promising to remedy them through the implementation of its
Communicating Answers Tracking System (CATS) program; engaging
in surveillance of employees’ union activity online, including investi-
gating union sympathizers’ Facebook pages; demanding that Diana
Concepcion provide documents to verify her identity and immigration
status in retaliation for her union activity; and disciplining Cotto, Guz-
man, and Ronnie Fox for violating the unlawfully overbroad no-
solicitation/no-distribution policy. We also adopt the judge’s findings
that the Respondent violated Sec. 8(a)(3) and (1) by disciplining Cotto
and Guzman for distributing union literature; disciplining Fox for hav-
ing union cards in his clipboard (which the Respondent discovered
through its unlawful clipboard search); and suspending Concepcion for
failing to provide documents to verify her identity and immigration
status, which the Respondent unlawfully demanded that Concepcion
provide in retaliation for her union activity. In addition, we agree with
the judge, for the reasons he states, that the Respondent’s plant-wide
wage increase did not violate Sec. 8(a)(3) and (1). There are no excep-
tions to the judge’s finding that the Respondent violated Sec. 8(a)(1) by
instructing employees, in its August 27 letter to them, not to discuss
their wages with their coworkers, and we adopt that finding as well.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by assessing employee Maldonado an attendance point
for the day she was absent from work to participate in the strike, Mem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2

ber Pearce notes that the discipline was unlawful even assuming, as the
Respondent asserts, that Maldonado did not mention, when calling in,
that the strike was the reason for her absence. Member Pearce observes
that the Act protects the right of employees to strike without prior no-
tice to their employer. See Iowa Packaging Co., 338 NLRB 1140,
1144 (2003); Savage Gateway Supermarket, 286 NLRB 180, 181 &
183-184 (1987), enfd. 865 F.2d 1269 (6th Cir. 1989).
In addition to adopting the judge’s findings above, we clarify the
judge’s decision in the following respects. First, in adopting the
judge’s finding that the Respondent violated Sec. 8(a)(1) by maintain-
ing an overbroad no-solicitation/no-distribution policy from May 13
until June 10, we further find that the door sign, which was posted
contemporaneously with the unlawful policy, was also unlawful. Post-
ed on the main employee entrance, the door sign read: “AdvancePierre
Foods has a non-solicitation and non-distribution policy. Any ques-
tions should be directed to Human Resources. Thank You.” We find
that the sign constitutes an unlawful complete ban on solicitation and
distribution. Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616 & 621
(1962). Accordingly, we clarify the judge’s holding and find that both
the policy and door sign are facially unlawful under Sec. 8(a)(1).
Moreover, we find that the policy and door sign are unlawful on the
additional ground that they were promulgated in response to union
activity. Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004); see also The Boeing Company, 365 NLRB No. 154 (2017)
(overruling the “reasonably construe” prong but not the “promulgated
in response to union activity” prong of Lutheran Heritage). On this
issue, Employee Relations Manager Mandy Ramirez’ credited and
undisputed testimony is that the company posted the policy “so that
associates knew what they could and could not do” after learning about
the union organizing campaign, specifically, that employees were dis-
tributing union literature and authorization cards. See Wild Oats Mar-
kets, Inc., 344 NLRB 717, 737 (2005) (adopting judge’s finding that
respondent violated Sec. 8(a)(1) by posting a no-solicitation rule in
response to union organizing activity). Second, we adopt the judge’s
finding that Ramirez’s review of video footage of the employee break-
room, after complaints that employees were distributing union litera-
ture, constituted unlawful surveillance in violation of Sec. 8(a)(1). We
find no need to pass, however, on whether the Respondent’s mainte-
nance of security cameras in the break room and throughout its plant
constitutes unlawful surveillance, as the judge suggests. The General
Counsel does not make this argument, and there is no evidence that the
security cameras were put in place in response to union activity. See
Lutheran Heritage, supra. Third, in adopting the judge’s findings that
the Respondent unlawfully disciplined employees Guzman, Cotto, and
Fox for violating the unlawful no-solicitation/no-distribution policy in
violation of Sec. 8(a)(1), we further rely on Double Eagle Hotel &
Casino, 341 NLRB 112, 112 fn. 3 (2004), and Continental Group, Inc.,
357 NLRB 409 (2011) (discipline imposed pursuant to an overbroad
rule is unlawful under Sec. 8(a)(1)). Fourth, in addition to affirming
the judge’s finding that the Respondent’s search of production employ-
ees’ clipboards constituted unlawful surveillance in violation of Sec.
8(a)(1), we find that the confiscation of union authorization cards un-
covered from that unlawful search also violated Sec. 8(a)(1), as it inter-
fered with employees’ protected right to receive union literature. See
e.g., Romar Refuse Removal, 314 NLRB 658, 665 (1994). Even where
an employer has lawfully prohibited distribution, it is not permitted to
confiscate union literature. NCR Corp., 313 NLRB 574, 577 (1993).
Finally, in affirming the judge’s findings, we do not rely on OS
Transport, LLC, 358 NLRB 1078 (2012), cited by the judge, a case
decided by a panel that included two persons whose appointments to
the Board were not valid. NLRB v. Noel Canning, 134 S. Ct. 2550
(2014).
Member Emanuel joins his colleagues in affirming the judge’s find-
ing that the Respondent’s no-solicitation/no-distribution policy and
al 8(a)(1) violations involving the Respondent’s interro-
gation of Sonja Guzman about her union activity, the
Respondent’s solicitations to employees to revoke their
union authorization cards, and the Respondent’s confis-
cation of employees’ union authorization cards. We also
grant the General Counsel’s notice-reading remedy re-
quest.
1. Interrogation of employee about own union activity
On June 8, prompted by employee complaints that
coworkers were distributing union literature and authori-
zation cards in the employee break room, Human Re-
sources Manager Mandy Ramirez reviewed the day’s
break room video footage and observed Sonja Guzman
and Carmen Cotto, two known union supporters, appear-
ing to distribute and/or receive materials. Ramirez and
Director of Human Resources Renee Chernock discussed
the video, and the following day they summoned Cotto to
meet with them in Ramirez’ office. During this meeting,
Ramirez told Cotto that she had reviewed video of the
break room after employee complaints and observed
Guzman receiving a “stack” of union literature from Cot-
to. Ramirez further questioned Cotto about Guzman and
whether “[Guzman] gave [Cotto’s] paper to other peo-
ple,” which Cotto denied. Ramirez and Chernock issued
a verbal discipline to Cotto for violating the Respond-
ent’s no-solicitation/no-distribution policy and warned
her not to distribute literature in the break room in the
future. Shortly after the meeting with Cotto, Guzman
was called to Ramirez’ office. In this meeting, Chernock
and Ramirez (who translated in Spanish) similarly told
Guzman about the employee complaints regarding the
distribution of literature in the break room and how they
had observed video of her and Cotto engaged in such
activity. Ramirez asked Guzman whether she had dis-
tributed union literature; Guzman denied doing so and
stated that Ramirez was trying to “intimidate” her.
Ramirez responded, “There’s no reason to feel intimidat-

door posting were facially unlawful. He also joins his colleagues in
affirming the judge’s finding that the Respondent’s search of produc-
tion employees’ clipboards constituted unlawful surveillance in viola-
tion of Sec. 8(a)(1). He notes that an employer generally has a right to
search company equipment for lawfully prohibited items in a work
area. Here, however, the Respondent conducted the search with the
goal of uncovering union activity. As the judge found, the Respond-
ent’s argument that it was enforcing a safety and sanitation rule that
banned personal items on the production floor was pretextual. Contrary
to his colleagues, Member Emanuel finds it unnecessary to pass on
whether the no-solicitation/no-distribution policy and door sign are
unlawful because they were promulgated in response to union activity.
He also finds it unnecessary to pass on their finding, under Double
Eagle Hotel & Casino, supra, and Continental Group, Inc., supra, that
disciplining Guzman, Cotto, and Fox for violating an unlawful no-
solicitation/no-distribution rule was an additional basis for finding the
violation.
ADVANCEDPIERRE FOODS, INC. 3
ed, it is just a conversation.” Chernock testified that they
had called Guzman in as a “friendly reminder” about the
no-solicitation/no-distribution policy; however, the judge
found that Ramirez issued Guzman a verbal warning not
to distribute union literature.5
The judge found, and we affirm, that the Respondent
unlawfully surveilled Cotto’s and Guzman’s union ac-
tivity in violation of Section 8(a)(1) and unlawfully dis-
ciplined Cotto and Guzman for engaging in union activi-
ty in violation of Section 8(a)(3) and (1). The judge fur-
ther found, and we agree, that the Respondent unlawfully
interrogated Cotto about Guzman’s union activity in vio-
lation of Section 8(a)(1). As discussed below, we addi-
tionally find that the Respondent violated Section 8(a)(1)
by unlawfully interrogating Guzman about her own un-
ion activity.6
In determining whether an interrogation is unlawful
under the Act, the Board looks at whether, under all the
circumstances, the questioning would reasonably tend to
coerce the employee at whom it is directed. Rossmore
House, 269 NLRB 1176, 1178 (1984), enfd. 760 F.2d
1006 (9th Cir. 1985); Westwood Health Care Center, 330
NLRB 935, 939 (2000). The interrogation need not take
the form of a question to be unlawful. Thus, statements
designed to elicit a response may constitute an unlawful
interrogation. See, e.g., Grass Valley Grocery Outlet,
338 NLRB 877, 882 fn. 1 (2003), affd. sub nom. NLRB
v. Cubitt, 121 Fed. Appx. 720 (9th Cir. 2005); and Med-
care Associates, 330 NLRB 935, 941 fn. 21 (2000).
Here, Guzman—for the first time in her almost 10 years
of employment—was called to the Human Resources
office to meet with two high-level managers. At this
meeting, Ramirez told Guzman that employees had com-
plained about her, remarked that she and Chernock had
seen video of Guzman engaged in union activity in the
employee break room, and accused her of distributing
union literature. Although the video showed Guzman

5 A verbal warning is the first step in the Respondent’s progressive
discipline system.
6 While finding that Ramirez and Chernock unlawfully interrogated
Cotto about Guzman’s union activity in the breakroom on June 8, the
judge dismissed complaint par. 5(f), which alleges that Ramirez and
Chernock “[i]nterrogated an employee regarding the employee’s union
activities and sympathies.” The basis for the judge’s dismissal was that
the General Counsel had apparently not asserted the matter in his post-
hearing brief. We conclude that the dismissal was erroneous. Par. 5(f)
of the complaint properly pleads the allegation. In turn, the General
Counsel introduced evidence in support of that allegation at the hear-
ing, and the judge’s findings support the allegation. The General
Counsel properly excepted to the judge’s dismissal and briefed the
issue. Accordingly, we find the 8(a)(1) violation, and we shall order
that the Respondent cease and desist from interrogating employees
about their own union activity as well as the union activity of other
employees.
receiving literature from Cotto, Ramirez’ statements to
Guzman are consistent with the judge’s finding that
Ramirez had, just moments before, unlawfully interro-
gated Cotto about whether Guzman had given the union
literature that she had received from Cotto to “other peo-
ple.” In any case, Ramirez’ accusation during her meet-
ing with Guzman was designed to elicit a response, and it
elicited a denial and a remark from Guzman that Ramirez
was attempting to intimidate her. Moreover, the judge
found that Chernock and Ramirez concluded the meeting
by unlawfully disciplining Guzman. Under these cir-
cumstances, we have no trouble finding that the Re-
spondent’s line of questioning of Guzman regarding her
own union activity was a coercive interrogation in viola-
tion of Section 8(a)(1).
2. Solicitations of employees to revoke their union
authorization cards
As earlier discussed, the Respondent learned of the
Union campaign no later than May 11 and responded
swiftly. Indeed, by May 13, the Respondent had posted
the no-solicitation/no-distribution policy and related door
sign. From mid-May to mid-June, the Respondent’s su-
pervisors held approximately five to six employee meet-
ings, each lasting about 20–25 minutes. At these meet-
ings, supervisors distributed a “How to Withdraw Your
Signed Union Authorization Card” flyer and explained to
employees how they could get their cards back. The
flyer, which was also left out in the main employee cor-
ridor, listed these steps: (1) Use the attached form to re-
quest in writing that you want your card back and are
withdrawing your membership in the union; (2) Make a
copy of the form and mail the original to the union ad-
dress on the form; and (3) Go to the union representative
you gave the union authorization card to and tell him or
her that you want your card back. The flyer concluded:
“Please understand that other than giving you this infor-
mation, AdvancePierre Foods is not permitted by law to
assist you in any other way in getting your card re-
turned.”
By the end of May, the Union had gathered 165 signed
cards. On June 8, the Respondent conducted an unprec-
edented search of production employees’ clipboards,
confiscated union cards found during that search, and
disciplined employee Ronnie Fox for violating the no-
solicitation/no-distribution rule because of the union
cards found in his clipboard.7 That same day, as earlier
discussed, prompted by employee complaints about
coworkers distributing union literature in the break room,

7 As the judge found, many employees carry a clipboard with a
closed metal container affixed to it, in which they store and carry daily
work materials.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Ramirez watched video of the break room and observed
Cotto and Guzman engaged in such activity. The Re-
spondent wasted no time interrogating Cotto and Guz-
man about their union activity in the break room, issuing
verbal warnings that they had violated the no-
solicitation/no-distribution policy, and telling them not to
distribute union literature in the future. The Respondent
does not dispute that the May 13 no-solicitation/no-
distribution policy was unlawfully overbroad in violation
of Section 8(a)(1). The judge found that the Respond-
ent’s related actions on June 8 and June 9, above, violat-
ed Section 8(a)(3) and (1). And we have additionally
found that the employer’s confiscation of the union cards
from the unlawful clipboard search violated Section
8(a)(1) (see above, fn. 4).
As a general rule, an employer may not solicit em-
ployees to revoke their union authorization cards. Un-
iontown Hospital Assn., 277 NLRB 1298, 1307 (1985).
“An employer may, however, advise employees that they
may revoke their authorization cards, so long as the em-
ployer neither offers assistance in doing so nor seeks to
monitor whether employees do so nor otherwise creates
an atmosphere wherein employees would tend to feel
peril in refraining from revoking.” Mohawk Industries,
334 NLRB 1170, 1171 (2001) (citing R. L. White Co.,
262 NLRB 575, 576 (1982)).
Here, the judge found the Respondent’s explanation of
how to revoke cards was, by itself, not unlawful. The
only issue, according to the judge, was whether the Re-
spondent’s advice was given in a manner that “create[d]
an atmosphere where employees tend to feel peril in re-
fraining from revoking.” Despite recognizing that “seri-
ous” unfair labor practices had occurred during the mid-
May to mid-June solicitation period, the judge concluded
that “even taken as a whole . . . [the violations] do not
rise to the scope or level found in other cases where the
mere provision of information to employees is con-
demned.” The primary case the judge relied on is Mo-
hawk Industries, supra, where the Board found that the
employer had unlawfully solicited employees to revoke
their authorization cards in the context of threats of plant
closure, unspecified reprisals for supporting the union,
and the discharges of two union supporters. 334 NLRB
at 1171. The judge distinguished Mohawk Industries
from the instant case as involving “numerous and sub-
stantial unfair labor practices close in time to the solicita-
tion to employees [to] revoke cards.” We disagree that
Mohawk Industries is distinguishable, for two reasons.
First, we do not agree with the judge that Mohawk In-
dustries establishes a floor as to the types of violations
needed to create a perilous atmosphere. For example, in
Escada (USA), Inc., 304 NLRB 845, 849 (1991), enfd.
mem. 970 F.2d 898 (3d Cir. 1992), the Board found that
the employer unlawfully explained the card-revocation
process by distributing a sample revocation letter to em-
ployees in a context of contemporaneous unfair labor
practices similar to the ones here, including interroga-
tion, solicitation of grievances, creating the impression
that employee union activities were under surveillance,
and the discharge of a union supporter.8 Second, we do
not agree with the judge that the violations in Mohawk
Industries are more egregious than the violations that
occurred here, in particular because these violations all
stem from the Respondent’s efforts to, as the judge
found, “squelch” the Union’s organizing campaign as
soon as it began. To this point, we find compelling that
the Respondent’s unlawful search for and confiscation of
cards during the unprecedented clipboard audit and Fox’s
related discipline, and the disciplines of Cotto and Guz-
man for distributing union cards in the break room, all
relate to the card-signing process. Further, the disci-
plines were pursuant to the unlawful no-solicitation/no-
distribution policy, which we have found the Respondent
promulgated in direct response to the Union campaign,
and specifically, after learning that employees were dis-
tributing union authorization cards. Accordingly, we
find that the Respondent’s explanation of how employees
could revoke their cards in the context of these contem-
poraneous serious unfair labor practices—all related to
the card-signing process and the organizing effort to se-
lect the Union as the employees’ collective-bargaining
representative—created an atmosphere where employees
would tend to feel peril if they refrained from revoking
their support for the Union.
Accordingly, we find that the Respondent’s solicita-
tions to employees to revoke their cards violated Section
8(a)(1), as they occurred contemporaneously with serious
violations that went to the heart of the card-signing pro-
cess and began immediately after the Respondent learned
of the Union’s organizing campaign.9

8 The dissent attempts to distinguish Escada on the basis that the
employer in that case also told employees that “it would be in [the
employees’] best interests” to revoke their union authorization cards.
304 NLRB at 849. We disagree that Escada is distinguishable. Alt-
hough the Board in Escada noted this statement, it relied solely on the
employer’s contemporaneous unfair labor practices to find the viola-
tion, id., and the statement the dissent relies on was not separately
alleged or found to be an unfair labor practice.
9 Member Emanuel would affirm the judge’s dismissal of this alle-
gation. He notes that the General Counsel did not take issue with the
content of the flyer, but instead relied solely on the surrounding unfair
labor practices. Member Emanuel finds that these violations, while
serious, did not “create[] an atmosphere wherein employees would tend
to feel peril in refraining from revoking” their authorization cards.
Mohawk, supra at 1171. The cases cited by his colleagues are distin-
guishable. As noted by the judge, the employer in Mohawk Industries
ADVANCEDPIERRE FOODS, INC. 5
AMENDED REMEDY
We adopt the judge’s recommended remedies,10 and
we shall additionally order, in accordance
with King Soopers, Inc., supra, that the Respondent com-
pensate Diana Concepcion for her search-for-work and
interim employment expenses regardless of whether
those expenses exceed interim earnings.11 Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
We shall further order the Respondent to compensate
Concepcion for any adverse tax consequences of receiv-
ing a lump-sum backpay award and to file with the Re-
gional Director for Region 9 a report allocating the back-
pay awards to the appropriate calendar year for Concep-
cion in accordance with our decision in AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016).
Finally, we shall order the notice to employees to be
read aloud by Employee Relations Manager Ramirez (a
high-level manager who was personally involved in sev-

committed numerous and substantial unfair labor practices close in time
to the solicitation, including unlawfully threatening plant closure or
relocation, discharge, loss of jobs and benefits, and unspecified repris-
als; threatening that unionization would be futile; unlawfully interrogat-
ing employees; creating the impression of surveillance; and discharging
two employees. In Member Emanuel’s view, the violations in the
present case, though serious, are not as widespread or egregious as
those in Mohawk. Moreover, the Board in Mohawk did not rely solely
on the context of unfair labor practices, but emphasized that the em-
ployer told employees that one way to obtain card revocation forms
was to visit the Respondent’s office, which gave the company an op-
portunity to observe which employees chose to revoke. Id. Here, as
the judge found, there was no attempt to require employees to inform
management (indirectly or directly) whether they chose to revoke their
cards. In Escada (USA), Inc., 304 NLRB 845 (1991), in addition to
committing multiple violations, including the discharge of an employee
to discourage membership in or support of the union, the employer
exceeded the bounds of simply providing information by telling em-
ployees it was “in [their] best interests” to revoke their cards. Escada,
supra at 849. The Respondent made no such statements here.
10 In agreement with the judge, and for the reasons stated in the
judge’s decision, we do not find the other remedies requested by the
General Counsel to be warranted. We endorse the judge’s determina-
tion that traditional remedies, including the King Soopers remedy and a
notice reading, will sufficiently ameliorate the effects of the Respond-
ent’s unfair labor practices. See First Legal Support Services, LLC,
342 NLRB 350, 350 fn. 6 (2004).
11 Applying extant law at the time, the judge denied the General
Counsel’s request that Concepcion be reimbursed for her search-for-
work and work-related expenses. In the meantime, the Board issued its
King Soopers decision, which provides for this remedy and ordered that
it be applied retroactively “in all pending cases in whatever stage.” 364
NLRB No. 93, slip op. at 11.
eral of the serious unfair labor practices) or,12 at the Re-
spondent’s choice, by an agent of the Board with
Ramirez present.13 See Fieldcrest Cannon, Inc., 318
NLRB 470, 473 (1995), enfd. in relevant part 97 F.3d 65
(4th Cir. 1996) (giving the employer the option of having
a Board agent read the notice aloud with the named offi-
cial present). In cases where a particular manager, to the
knowledge of employees, was directly responsible for
many of the violations that justified the notice-reading
remedy, the Board has required that individual to read
the notice in order to make the remedy fully effective.
See Domsey Trading Corp., 310 NLRB 777, 779-780
(1993), enfd. 16 F.3d 517 (2d Cir. 1994); Monfort of
Colorado, 284 NLRB 1429, 1479 (1987), affd. sub nom.
United Food & Commercial Workers Intern. Union,
AFL–CIO v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988).
Here, Ramirez posted the unlawful no-solicitation/no-
distribution policy; surveilled, interrogated, and disci-
plined Cotto and Guzman for distributing union cards;
disciplined Fox for distributing union cards; surveilled
union activity by searching for employee union activity
online and by searching union sympathizers’ Facebook
pages; demanded documents from Concepcion to support
her identity and immigration status in retaliation for her
protected activity and thereafter suspended her for failing
to provide such information; disciplined Maldonado for
participating in a protected strike; and solicited grievanc-
es from employees under the unlawful CATS program.
Moreover, the card-revocation solicitations, the no-
solicitation/no-distribution policy, the CATS program,
and the Respondent’s instruction to employees not to
discuss their wages were all plant-wide violations that
affected every employee. In light of these serious and
widespread violations, we find that a reading of the no-
tice is appropriate “to dissipate as much as possible any
lingering effects of the Respondent’s unfair labor prac-
tices,” and will allow the employees to “fully perceive

12 Contrary to his colleagues, Member Emanuel would not order a
reading of the notice. The Board has recognized that this extraordinary
remedy may be warranted “where the violations are so numerous and
serious that the reading aloud of a notice is considered necessary to
enable employees to exercise their Section 7 rights in an atmosphere
free of coercion, or where the violations in a case are egregious.” Post-
al Service, 339 NLRB 1162, 1163 (2003). Here, Member Emanuel
agrees with the judge’s finding that the Respondent’s unfair labor prac-
tices, although serious, are not so egregious as to warrant a notice-
reading.
13 If Ramirez is no longer employed by the Respondent, then the
Respondent shall designate an owner or officer to conduct or be present
for the reading. North Memorial Health Care, 364 NLRB No. 61, slip
op. at 1 (2016) (ordering that the notice be read aloud because of the
public nature of the unfair labor practices, the timing of the violations,
and the involvement of upper management), enfd. in relevant part 860
F.3d 639 (8th Cir. 2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
that the Respondent and its managers are bound by the
requirements of the Act.”14 Homer D. Bronson Co., 349
NLRB 512, 515 (2007) (internal quotes omitted), enfd.
mem. 273 Fed. Appx. 32 (2d Cir. 2008). See also Boz-
zuto’s, Inc., 365 NLRB No. 146 (2017) (notice-reading
appropriate where respondent disciplined and discharged
two employees who initiated union campaign).
ORDER
The National Labor Relations Board orders that the
Respondent, AdvancePierre Foods, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing an unlawful and
overbroad no-solicitation/no-distribution policy.
(b) Promulgating a no-solicitation/no-distribution pol-
icy in response to union activity.
(c) Engaging in surveillance of employees’ union ac-
tivity by reviewing archived video of union activity in
the employee break room.
(d) Soliciting its employees to revoke authorizations
to the Union to be their collective-bargaining representa-
tive.
(e) Interrogating employees about their union activi-
ties or those of their coworkers.
(f) Engaging in surveillance by searching employee
clipboards to find union literature.
(g) Confiscating union authorization cards from em-
ployees.
(h) Disciplining employees in retaliation for distrib-
uting, receiving, and/or possessing union literature.
(i) Engaging in surveillance of employee union activi-
ty by searching for employee union activity online and
searching union sympathizers’ Facebook pages.
(j) Demanding any employee provide documents to
verify his or her identity and immigration status in retali-
ation for his or her union activity, and suspending any
employee for failing to satisfy the unlawful demand.
(k) Disciplining any employee for an absence caused
by participation in a protected strike.
(l) Instructing employees that their pay rate is consid-
ered personal and confidential and is not to be shared
with other employees.
(m) Soliciting grievances from employees and im-
pliedly promising to remedy them in order to discourage
employees from organizing a union.

14 The notice-reading remedy ordered is consistent with the judge’s
proposed order, which we adopt, that the Respondent shall be required
to post the notice in both English and Spanish, and any other languages
the Regional Director finds appropriate, based on the judge’s finding
that a large number of employees’ primary language is not English.
(n) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful disciplinary warnings issued
to Sonja Guzman and Ronnie Fox.
(b) Rescind the attendance point unlawfully issued to
Jessenia Maldonado for her participation in protected
concerted activities.
(c) Within 14 days from the date of this Order, offer
Diana Concepcion full reinstatement to her job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
(d) Make Diana Concepcion whole for any loss of
earnings and other benefits suffered as a result of her
unlawful suspension, in the manner set forth in the reme-
dy section of the judge’s decision as amended in this
decision.
(e) Compensate Diana Concepcion for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 9,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s).
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension of
Diana Concepcion, and within 3 days thereafter, notify
Concepcion in writing that this has been done and that
the suspension will not be used against her in any way.
(g) Rescind the CATS (Communicating Answers
Tracking System) grievance program.
(h) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful disci-
plinary warnings given to employees Carmen Cotto, Son-
ja Guzman, and Ronnie Fox, and the attendance point
unlawfully assessed against Jessenia Maldonado, and
within 3 days thereafter, notify these employees in writ-
ing that this has been done and that the warnings or at-
tendance point will not be used against them in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
ADVANCEDPIERRE FOODS, INC. 7
(j) Within 14 days after service by the Region, post at
its facility in Cincinnati, Ohio, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be translated into Spanish and any other
languages that the Regional Director determines is ap-
propriate, and the Spanish, other language(s), and Eng-
lish notices shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at the closed facility at any time since May 13,
2015.
(k) Within 14 days after service by the Region, hold a
meeting or meetings, which shall be scheduled to ensure
the widest possible attendance of employees, at which
the attached notice marked “Appendix” is to be read in
English, Spanish, and any other language or languages
the Regional Director determines are appropriate by the
Respondent’s Employee Relations Manager Mandy
Ramirez (or, if she is no longer employed by the Re-
spondent, by a high-ranking responsible management
official of the Respondent) in the presence of a Board
agent or, at the Respondent’s option, by a Board agent in
the presence of Ramirez or another management official,
if Ramirez is no longer employed by the Respondent.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. July 19, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain and/or enforce an unlawful and
overbroad no-solicitation/no-distribution policy that re-
stricts you from exercising the rights set forth above.
WE WILL NOT promulgate a no-solicitation/no-
distribution policy in response to your union activities.
WE WILL NOT engage in surveillance of your union ac-
tivity by reviewing archived video of your union activity
in the employee break room.
WE WILL NOT solicit you to revoke your authorization
to the Union to be your collective-bargaining representa-
tive.
WE WILL NOT interrogate you about your union activi-
ties or those of your coworkers.
WE WILL NOT engage in surveillance by searching your
clipboards to find union literature.
WE WILL NOT confiscate union authorization cards
from you.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL NOT discipline you in retaliation for distrib-
uting, receiving, and/or possessing union literature.
WE WILL NOT engage in surveillance of your union ac-
tivity by searching for union activity online and search-
ing suspected union sympathizers’ Facebook pages.
WE WILL NOT demand you provide documents to veri-
fy your identity and immigration status in retaliation for
your union activity, and WE WILL NOT suspend you for
failing to satisfy the unlawful demand.
WE WILL NOT discipline you for an absence caused by
participation in a lawful strike.
WE WILL NOT instruct you that your pay rate is consid-
ered personal and confidential and is not to be shared
with other employees.
WE WILL NOT solicit grievances from you and implied-
ly promise to remedy them in order to discourage you
from organizing a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawful disciplinary warnings
issued to Sonja Guzman and Ronnie Fox.
WE WILL rescind the attendance point unlawfully is-
sued to Jessenia Maldonado for her participation in a
protected strike.
WE WILL rescind the CATS (Communicating Answers
Tracking System) grievance program.
WE WILL, within 14 days from the date of the Board’s
order, offer Diana Concepcion full reinstatement to her
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Diana Concepcion whole for any loss
of earnings and other benefits suffered as a result of our
unlawful suspension of her, less any net interim earnings,
plus interest, and WE WILL make her whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Diana Concepcion for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 9, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension of Diana Concepcion, and WE WILL, with-
in 3 days thereafter, notify Diana Concepcion in writing
that this has been done and that the suspension will not
be used against her in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplinary warnings given to Carmen Cotto, Sonja
Guzman, and Ronnie Fox, and the attendance point un-
lawfully assessed against Jessenia Maldonado, and WE
WILL, within 3 days thereafter, notify these employees in
writing that this has been done and that the warnings or
attendance point will not be used against them in any
way.
ADVANCE PIERRE FOODS, INC..
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-153966 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Zuzana Murarova, Esq. and Gideon Martin, Esq. for the Gen-
eral Counsel.
Keith P. Spiller Esq. and Megan S. Glowacki, Esq. (Thompson
Hine LLP) of Cincinnati, Ohio, for the Respondent.
Pamela M. Newport, Esq. (UFCW Local 75) of Dayton, Ohio,
for the Charging Party.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
involves a series of alleged unfair labor practices that arose out
of a union organizing campaign and the employer’s opposition
to it at food product manufacturer’s Cincinnati, Ohio facility.
As discussed herein, I find that as alleged, the employer un-
lawfully maintained and enforced an unlawfully broad solicita-
tion/distribution policy during an approximately 1-month peri-
od from the inception of the union campaign in May 2015, until
the employer realized that its policy was unlawful. I further
find that, in a flurry of unlawful activity, on or about June 9, the
employer unlawfully disciplined three employees for engaging
in union activity. In the midst of one of these disciplinary
meetings, it engaged in one unlawful act of interrogation, ques-
tioning an employee about whether another employee assisted
her in distributing literature during a work break in the break
room. At about the same time, I find that the employer unlaw-
fully surveilled employees by searching for and confiscating
union authorization cards. The following week, the employer
unlawfully surveilled union activity online, which, as discussed
ADVANCEDPIERRE FOODS, INC. 9
at length herein, led to the unlawful demand that an employee
provide identification documents, and her unlawful suspension
when she failed to comply. I find that, on or about July 17, the
employer unlawfully assessed an attendance point against an
employee who was engaged in protected activity as part of a
one-day strike by some employees. Further, I find that in mid-
July, the employer unlawfully implemented a program to solicit
employee grievances and impliedly promised to remedy them
in an effort to discourage union organizational activity. Finally,
I find that in an August 27 letter to each employee explaining a
pay raise they were to receive, the employer unlawfully di-
rected employees not to share pay information with other em-
ployees.
In addition to these violations, I dismiss allegations that the
employer unlawfully solicited employees to withdraw union
authorization cards. I dismiss one alleged act of interrogation
for which there is no evidence, and I decline to find a violation
with regard to another such violation urged by the General
Counsel but unalleged in the complaint or by amendment.
Finally, I dismiss the General Counsel’s allegation that the pay
raise granted employees on or about August 30, and the an-
nouncement of it on July 15, violated the Act. I believe that the
employer has successfully demonstrated that the pay raise was
implemented as the culmination of a multiplant pay restructur-
ing plan envisioned, planned, and developed long before and
unrelated to the union organizing campaign.
Finally, as discussed herein, the General Counsel has re-
quested a panoply of extraordinary remedies. Some have no
precedent in existing Board law, and thus, are more appropri-
ately considered by the Board on exceptions, should the Gen-
eral Counsel choose to pursue that route. Others are simply
unwarranted under the circumstances of this case. I do agree,
however, that the posting of a notice, in English, Spanish, and
any other languages determined appropriate by the Regional
Director, constitutes part of an appropriate remedy in this case.
STATEMENT OF THE CASE
On June 10, 2015, the United Food and Commercial Work-
ers Union Local 75 (Union) filed unfair labor practice charges
alleging violations of the National Labor Relations Act (Act) by
AdvancePierre Foods Inc. (AP), docketed by Region 9 of the
National Labor Relations Board (Board) as Cases 09–CA–
153966, 09–CA–153973, and 09–CA–153986. Based on an
investigation into these charges, on August 31, 2015, the
Board’s General Counsel, by the Regional Director for Region
9 of the Board, issued an order consolidating these cases, and a
consolidated complaint and notice of hearing, alleging that AP
had violated the Act. On September 14, 2015, AP filed an an-
swer denying all alleged violations of the Act.
On June 22, 2015, the Union filed a further unfair labor prac-
tice charge against AP, docketed by Region 9 of the Board as
Case 09–CA–154624. On July 24, 2015, the Union filed fur-
ther charges, docketed as Cases 09–CA–156715 and 09–CA–
156746. Based on an investigation into these charges, on Sep-
tember 30, 2015, the Board’s General Counsel, by the Regional
Director for Region 9 of the Board, issued an order consolidat-
ing these cases with Cases 09–CA–153966, 09–CA–153973,
and 09–CA–153986, and a second consolidated complaint and
notice of hearing, alleging additional violations of the Act by
AP. On October 14, 2015, AP filed an answer to the second
consolidated complaint denying all alleged violations of the
Act.
On September 9, 2015, the Union filed a further unfair labor
practice charge against AP, docketed by Region 9 of the Board
as Case 09–CA–159692. On September 11, 2015, the Union
filed a first amended charge in that case. On September 25,
2015, the Union filed further charges, docketed as Cases 09–
CA–160773 and 09–CA–160779. On October 29, 2015, the
Board’s General Counsel, by the Regional Director for Region
9 of the Board, issued an order consolidating these cases with
the cases contained in the second consolidated complaint, and
issued a third consolidated complaint and notice of hearing,
alleging additional violations of the Act by AP. On November
12, 2015, AP filed an answer to the third consolidated com-
plaint denying all alleged violations of the Act.
On November 27, the Board’s General Counsel, by the Act-
ing Regional Director for Region 9 of the Board, issued an
amendment to the third consolidated complaint. AP filed an
answer to the amendment to the third consolidated complaint
on December 10, 2015, denying all allegations of the Act. A
second amendment to the third consolidated complaint was
filed January 7, 2016, and an answer denying the allegations
filed by AP on January 13, 2016.1
On October 21, 2015, the Union filed a charge, docketed by
Region 9 as Case 09–CA–162392. (GC Exh. 28(a).) Based on
investigation into the charge, a complaint issued November 25,
2015. (GC Exh. 28(c).) AP answered, denying all alleged
violations of the Act, on December 10, 2015. (GC Exh. 28(e).)
I consolidated this case for hearing with the previously-
described cases on December 4, 2015. (Tr. 951.)
A trial in these cases was conducted on November 30
through December 4, 2015, and on January 14, 2016, in Cin-
cinnati, Ohio. Counsel for the General Counsel and the Re-
spondent filed posttrial briefs in support of their positions by
February 18, 2016.
At trial, counsel for the General Counsel moved to amend
the complaint to allege, in paragraph 4, that Eric Hayes had the
job title production supervisor and was a statutory supervisor
and agent under the Act. Counsel also moved to amend para-
graphs 5(a) and (k) to substitute Eric Hayes for Ernie Hayes.
Additionally, counsel moved to amend complaint to include an
allegation (Tr. 566) that the Respondent, by Mandy Ramirez,
unlawfully surveilled Carmen Cotto’s distribution of union
literature. These motions were granted. The parties stipulated
that Ernie Hayes, former HR manager for AP, was an agent of
the Respondent at all material times.
Posttrial, on March 31, 2016, counsel for the General Coun-
sel moved, without opposition, to consolidate Cases 09–CA–
157262 and 09–CA–163048 with the previously-consolidated
cases and on April 29, 2016, moved to reopen the hearing to
take evidence in these new cases. That motion was granted May

1 As it was filed after the commencement of the hearing, I deemed
and treated the second amendment to the third consolidated complaint
as a motion to amend the third consolidated complaint. That motion
was granted January 14, 2016. (Tr. 1054, 1058.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
16, 2016, and the hearing set to resume June 2. On May 31,
2016, counsel for the General Counsel moved, without opposi-
tion, to have Cases 09–CA–157262 and 09–CA–163048 sev-
ered and remanded to the Regional Director to consider the
Charging Party’s request for withdrawal of the charges in those
cases. That motion was granted by order issued June 1. That
same day, the Regional Director for Region 9 issued an order
approving withdrawal of the charges in Cases 09–CA–157262
and 09–CA–163048.2
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
AP is and at all material times has been a corporation with an
office and principal place of business in Cincinnati, Ohio, and
has been engaged in food production and distribution at that
facility. In conducting its operations during the 12-month peri-
od ending August 1, 2015, and the 12-month period ending
November 1, 2015, AP sold and shipped from its facility goods
valued in excess of $50,000 directly to points outside the State
of Ohio. At all material times, AP has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The parties stipulated, and I find based on
the record as a whole that at all material times the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
Below, after a short introduction establishing some of the
background facts, I set forth factual findings and analysis for
each of the unfair labor practice allegations advanced by the
General Counsel.
INTRODUCTION
AP manufactures processed foods for restaurant chains, retail
businesses such as Wal-Mart and Costco, and for sale in con-
venience stores such as 7-11 and Speedway. According to the
testimony of its senior vice president for human resources,
Chuck Aardema, Advance Pierre has approximately $1.7 bil-
lion in sales, and employs approximately 4100 employees in
eleven locations.
AP maintains a manufacturing facility near Cincinnati, Ohio,
which is the site of the alleged unfair labor practices in these
cases. Approximately 600 hourly employees work there. The
production is carried out on ten separate production lines,
where workers grind, process, box and pack specified products
In the spring of 2015,3 the Union began meeting with AP
employees. Union organizer Ellen Vera testified that she first
met with a group of AP Cincinnati plant workers on March 31,
after employee Sonja Guzman contacted the Union. (Guzman
testified that the first meeting was in approximately May, but

2 Throughout this decision, references to the complaint are to the ex-
tant and most recent consolidated complaint, as amended.
3 Throughout this decision, dates are 2015 unless otherwise stated.
the conflict is immaterial.) The evidence suggests that the first
“flyered” meeting (i.e., openly advertised meeting) was May
16. By the end of May, approximately 165 union authorization
cards had been signed.
Beginning in May, on a weekly or semiweekly basis the Un-
ion and employee supporters distributed union literature, some-
times with authorization cards attached, at the entrances and
exits of AP’s parking lot. This distribution was open and could
be seen “clearly” by AP HR personnel and perhaps others who
were standing in a smoking area adjacent to the facility. In
addition, there is evidence in the record that management re-
ceived “union updates” from some employees, including in-
formation about what occurred at union meetings, although it is
unclear how early that began.
In any event, by May 11, before the Union’s first openly
publicized meeting, news of the union activity had reached
Senior Vice President of Human Resources Chuck Aardema,
who has overall responsibility for the human resources for the
entire company nationwide. On that day, Aardema received a
call about the union activity from Renee Chernock, director of
human resources, whose office is in Blue Ash, Ohio, about ten
minutes away from the Cincinnati plant, and who provides HR
support for five AP manufacturing plants including Cincinnati.
Chernock had received a piece of union literature from the
Cincinnati plant manager, Petra Sterwerf, who had received it
from Operations Manager Dwayne Stanford. During this time
period, Sterwerf heard from Employee Relations Manager
Mandy Ramirez that the Union was holding meetings.
AP moved quickly to oppose unionization. It hired a man-
agement consulting firm to assist “with the campaign that had
got started at the Cincinnati plant.” As discussed below, on
May 13, “because of the union activity that was occurring in
the plant,” AP posted a no-solicitation/no-distribution policy
“so that associates knew what they could and could not do.”
AP’s front line supervisors began meeting in May with pro-
duction workers on the production floor, stopping the lines and
work for 20–25 minutes for a meeting, often near the end of a
shift. At these meetings, in which employees working on the
line were brought to the back area of the facility, the supervi-
sors would meet with the lines under their supervision and pass
out literature opposing unionization, and the literature would be
left in the hallway as well. At these meetings, supervisors
would discuss issues around the campaign. The first such piece
of literature, dated May 21, was distributed in several lan-
guages, reflecting the diverse and immigrant workforce em-
ployed at AP. Chernock testified that there are at least five
languages spoken by employees in the facility.
These meetings were repeated, on a roughly weekly, or every
other week basis, for five or six times.4

4 Employee Sonja Guzman testified that these meetings occurred
“[e]very day for a week.” I am not sure if that is a translation error
(there were some) or a misstatement, but I do not credit that account of
the frequency of the meetings. It is in contradiction to much other
testimony and documentary evidence.
ADVANCEDPIERRE FOODS, INC. 11
I. ALLEGED SOLICITATIONS TO EMPLOYEES TO REVOKE UNION
AUTHORIZATION CARDS (COMPLAINT PARAGRAPH 5(A))
Facts
The midshift supervisory-led meetings with employees in-
cluded instruction from supervisors on how employees could
rescind union authorization cards that they had already signed.
Employee Ronnie Fox works on Line 2 as a grinder. He testi-
fied that the supervisor for Line 2, Daran Bishop, ran the meet-
ings he attended. Among the matters Bishop raised was how an
employee “could get your card back.” Bishop read his com-
ments and added things himself. Fox testified that papers ex-
plaining how to rescind the union authorization cards were
handed out or placed on the table in the hallway.
Machine Operator Kenneth Favors testified that his line su-
pervisor, Bob Stacy, ran the meetings he attended. According
to Favors, Stacy “volunteered” to employees that “if you don’t
want to be part of the union that’s taking place, you can go
ahead and sign this paper and that will basically waive off your
signature that you probably already signed. . . . If you sign this
paper, it would basically take you off the union.”
Line 9 Packer Sonja Guzman testified that her supervisor,
Eric Hayes, told employees “that if we had signed the cards,
how to revoke that.” This information was not provided in
response to an employee question on how to revoke union
cards.5
The literature distributed (or posted) by the AP supervisors
included information on “How to Withdraw Your Signed Un-
ion Authorization Card,” and stated the following:
How to Withdraw Your signed Authorization Card
To All AP Foods Associates:
Many of you have told us that you signed a union authoriza-
tion card without understanding that it is a legal statement au-
thorizing the UFCW Local 75 union to represent you. You
have asked us how to withdraw your card. Here is how:
1. Use the attached form to request in writing that you want
your card back and are withdrawing your membership in the
union;
2. Make a copy of the form and mail the original to the union
address on the form.
3. Go to the union representative you gave the union authori-
zation card to, and tell them that you want your card back.
Please understand that other than giving you this information,
AdvancePierre Foods is not permitted by law to assist you in
any other way in getting your card returned.
On the back of the card was a preprinted letter to the Union,
with space for a signature, dated, and printed name, stating:
I write to inform you that I do not want to be "represented" by
your union and I hereby revoke and rescind any union "au-
thorization" card, or any other indication of support for your

5 I credit Fox, Favors and Guzman on these points. The testimony
was offered credibly. Moreover, Bishop and Hayes testified but did not
dispute this testimony. Stacy did not testify.
union, that I may have signed in the past. Any such card or
indication of support for your union is null and void, effective
immediately.
Please return to me any union authorization card that I may
have signed. Also, please inform me in writing that you are
honoring this revocation and rescission of support for your
union.
Please be aware that refusing to honor my revocation and re-
scission will violate my rights under the National Labor Rela-
tions Act. Moreover, representing to my employer (or any
third party or "arbitrator ") that I support representation by
your union will similarly violate my legal rights.
Other literature provided to employees informed that “if you
signed a union card and want to withdraw your support, the
union must give it to you. Contact HR for more information.”
(Emphasis in original.)
Analysis
The General Counsel alleges that the Respondent violated
the Act by soliciting employees to withdraw their authorization
cards. However, I find that there is no violation.
Under established Board law, an employer may provide only
ministerial or passive aid to employees who wish to withdraw
from union membership. Thus, the employer may lawfully
provide neutral information to employees regarding their right
to withdraw their union support, provided that the employer
offers no assistance, makes no attempt to monitor whether
employees do so, and does not create an atmosphere wherein
employees would tend to feel peril in refraining from [with-
drawing].
Space Needle, LLC, 362 NLRB No. 11, slip op. at 2 (2015)
(citations and internal quotations omitted; Board’s bracketing).
In this case, the Respondent explained to employees in group
meetings how they could get their cards back. Instructions for
accomplishing this were set forth in forms handed out to em-
ployees and placed on a table. There was no attempt to require
employees to inform management (indirectly or directly)
whether they availed themselves of the opportunity.
It has long been accepted by the Board that an employer’s
provision to employees of information on how to revoke their
authorization cards is, without more, not unlawful assistance or
solicitation. R.L. White Co., 262 NLRB 575, 576 fn. 5 (1982);
Aircraft Hydro-Forming, 221 NLRB 581, 583 (1975) (employ-
er did not violate the Act by its “unrequested advice to employ-
ees as to mechanics of revocation with no attempt to elicit in-
formation as to whether employees availed themselves of this
advice and with no assistance or offer of assistance”). See by
contrast, Space Needle, supra at slip op. at 3 (noting “Respond-
ent’s attempt to monitor its employees’ responses to the letters
by requiring the sample resignation letters to be requested di-
rectly from management. This put the Respondent in the posi-
tion of knowing exactly which employees chose to resign their
union membership—a fact obvious to employees—and thereby
further pressured employees to make that choice”); Vestal
Nursing Center, 328 NLRB 87, 102 (1999) (employer “provid-
ed envelopes, postage, and on several occasions, actually
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
mailed letters for the employees,” rendering assistance “neither
passive nor ministerial”). Thus, AP’s explanation of how to
revoke authorization cards was, by itself, not unlawful.
The only remaining issue is whether the Respondent’s advice
was given in a manner that “creates an atmosphere where em-
ployees tend to feel peril in refraining from revoking.” Typi-
cally, this includes providing information on solicitation in the
context of significant and coercive unfair labor practices. Here,
by all evidence, these meetings occurred in the first month or so
of the open union drive (May and into June). As discussed
below, there were other unfair labor practices. However, even
taken as a whole, the other unfair labor practices, while serious,
do not rise to the scope or level found in other cases where the
mere provision of information to employees is condemned.
See, e.g., Mohawk Industries, 334 NLRB 1170 (2001).6
The General Counsel asserts (GC Br. at 24) that “[b]y stating
to employees that the Union must return cards upon request,
Respondent has solicited revocation of union support.” He cites
Mohawk, supra, and Vestal Nursing Home, supra, for this prop-
osition. However, neither case condemns that formulation per
se. Rather, in both cases, the violation turned on the commis-
sion of “numerous and substantial unfair labor practices close
in time to the solicitation to employees to revoke cards” (Mo-
hawk, supra at 1171) of much greater scope and severity than is
present here. See, unfair labor practices in Mohawk, supra; see
also extensive list of unfair labor practices found in Vestal
Nursing Home, 328 NLRB at 103–104. Additionally, in Mo-
hawk the Board relied upon the employer’s announcement to
employees that “one option for obtaining revocation forms was
to visit the Respondent’s office, giving the company an oppor-
tunity to observe whether they availed themselves of their right
to revoke union authorizations” (supra at 1171 (internal quota-
tion omitted)) and in Vestal Nursing Home the Board also re-
lied upon the additional finding that the employer “provided
envelopes, postage, and on several occasions, actually mailed
the letters for the employees.” 328 NLRB at 102. These cases
do not advance the General Counsel’s position here. I will
recommend dismissal of these allegations.

6 In Mohawk, the Board found that during the same period of the so-
licitation of revocation of cards, the Respondent's misconduct included
unlawfully threatening plant closure or relocation, discharge, loss of
jobs and benefits, and unspecified reprisals. It also threatened employ-
ees that it had a list of union supporters and planned to "ride" the insti-
gators and issue warnings, and threatened them with the futility of
selecting the Union as their bargaining representative. Further, it un-
lawfully interrogated employees and created among them an impression
of surveillance of their union activity. Finally, the Respondent dis-
charged two employees in violation of the Act. In these circumstances,
there can be no question under settled case law that the Respondent's
solicitation of employees to revoke authorization cards was an inde-
pendent unfair labor practice.
334 NLRB at 1171.
II. MAINTENANCE AND ENFORCEMENT OF THE 2001 SOLICITATION
POLICY; SURVEILLANCE OF UNION LITERATURE DISTRIBUTION IN
THE CAFETERIA/BREAK ROOM; THE DISCIPLINING OF COTTO AND
GUZMAN; INTERROGATION OF COTTO (COMPLAINT PARAGRAPHS
5(B), (E), (F), 6(A) AND (C), AND ORAL AMENDMENT (TR. 566))
FACTS
As noted, above, in response to learning of the union cam-
paign, Director of Human Resources Chernock directed then
Employee Relations Manager Ramirez7 to post a copy of the
solicitation/distribution policy.
Chernock testified that the policy “is something we’ve al-
ways had posted” on the production hallway HR bulletin board.
But upon learning on May 13 that employees were distributing
authorization cards, Chernock and Ramirez checked the bulle-
tin board and noticed that it was no longer posted. Neither
knew why it was no longer posted—the bulletin boards were
unlocked and both speculated that someone unknown had re-
moved it. Alternatively, they both mentioned that the hallway
and bulletin board had been cleaned and painted in the fall of
2014 when the new plant manager Sterwerf started managing
the facility, suggesting that this may have been when the policy
was taken down.
In any event, the policy was reposted May 13, in response to
the reports of union activity. Ramirez explained that
“[b]ecause of the union activity that was occurring in the plant,
we wanted to make sure that it was there so that associates
knew what they could and could not do.”
Although the policy had been revised in January 2012, nei-
ther Chernock nor Ramirez claimed familiarity with the sub-
stance of the new policy. Ramirez went to her computer and
from the shared drive where the human resources policies are
maintained, printed and posted the 2001 “no solicitation and no
distribution” policy, not the one from 2012. This policy stated:
I. PURPOSE
To set forth a "no solicitation and no distribution" policy in
order that the rights of everyone are protected so we may give
our undivided attention to the work of the Company.
II. APPLICATION
All employees of the Company.
III. POLICY
A. It is a long-standing belief of the Company to provide a
work place free from unnecessary interference so that all em-
ployees can work most effectively to achieve the highest qual-
ity results possible.
B. Accordingly, the following rules apply and should be un-
derstood by all employees.
1. No employee ,is permitted to solicit memberships, contri-
butions, conduct similar personal business or distribute print-
ed matter for any such purpose at any time in “immediate
work areas.”

7 Ramirez was promoted to plant HR manager in approximately
August 2015, when manager Ernie Hayes left.
ADVANCEDPIERRE FOODS, INC. 13
2. No employee is permitted to solicit memberships, contri-
butions, conduct similar personal business or distribute print-
ed matter for any such purpose during specified periods of the
workday when either the soliciting or the solicited employee
is supposed to be engaged in performing assigned work.
3. In addition to the limitations expressed in paragraphs 1:
and 2. above, no employee is permitted to distribute literature
for any such purpose at any time in employee work areas or
work corridors.
4. No employee is permitted to sell merchandise, subscrip-
tions, tickets, chances or similar items under the circumstanc-
es described in paragraphs 1. through 3. above.
5. Solicitations of any kind or distribution of literature by
non-employees is not permitted at any time on the premises of
the Company.
6. No persons shall deface any Company property, including
buildings, hallways, or equipment by affixing any poster,
sign, sticker or other advertising or propaganda matter.
7. Consistent with our long-standing practices, the only ex-
ceptions to the above rules are the annual United Way cam-
paign, and other Company sponsored fund-raising campaigns
for the direct benefit of the Company when employees are
given an opportunity to make a voluntary contribution if they
so desire.
8. This revision replaces and supersedes any prior policies or
interpretations on the subject of solicitations and distributions.
Ramirez testified that she did not know that the 2001 policy
had been replaced by the 2012 policy and that she had no rea-
son to review the policy before posting it. Neither Ramirez nor
any other official of AP had any explanation for why the 2001
policy continued to be in the company’s shared computer HR
files.
In addition to this posting, for approximately a month in May
and June, after the Union flyering, a sign was posted on the
door of the main employee entrance that stated: “AdvanceP-
ierre Foods has a non-solicitation and non-distribution policy.”
In smaller print at the bottom it stated: “Any questions should
be directed to Human Resources. Thank You.”8

8 It is unclear who posted this door notice. Ramirez denied knowing
about it, although she described “a small sticker” on a door to the facili-
ty that is still there and which says “something to the effect of we have
a no solicitation/distribution policy.” That seems to be something
different than what looks (GC 13) to be an 8.5 X 11 inch piece of paper
posted in the middle of a doorway. Fox identified this as being posted
after the union flyering but taken down at some point afterwards.
Chernock testified that “[a]t some point” in “the May timeframe,” . . .
there was a paper that was posted on one of the doors of the facility
about the fact that Pierre has a no solicitation/no distribution policy.”
Favors described a similar notice being posted “[r]ight outside of the
front entrance of where the employees walk in, not where visitors or
guests walked in.” The clear weight of the evidence is that the notice in
GC 13 was posted on the front door of the employee entrance after the
union activity began, and that it remained posted for about a month.
And while no one admitted posting it, it remained up long enough, with
its reference to contacting the HR department with any questions, and is
consistent with, albeit even more overbroad than the policy posted at
A few weeks after the May 13 posting of the 2001 policy, in
June, Ramirez received complaints that employees on break
were tired of other employees talking to them about the Union.
Chernock heard from Ramirez that “an employee had ap-
proached her and complained that people were handing out
union literature in the breakroom.”9 One of the employees gave
Ramirez some of the union literature handed to them in the
break room. Plant manager Sterwerf testified that she heard
from Ramirez that employee Carmen Cotto was handing out
union material in the breakrooms. She discussed this with
Ramirez and “several” other unidentified people (probably
including Chernock). Sterwerf agreed that Cotto should be
called into a meeting and informed that this was not allowed.
From her office computer, Ramirez was able to view live
feed and video recording from cameras maintained in various
parts of the facility, including two cameras in the employee
breakroom. On June 8, after the discussions with Chernock
referenced above, Ramirez used the video-recording system to
view video that showed employee Carmen Cotto passing out
papers to employees in the cafeteria. On the video, Ramirez
also witnessed Cotto handing “a stack of papers” to employee
Sonja Guzman.
Ramirez discussed the matter with Chernock. The next day,
June 9, they called a supervisor and had him bring Cotto to the
HR office. Chernock identified this supervisor as Daran Bish-
op, who supervised the line Cotto worked on, line 1. Cotto
identified the supervisor who brought her to the office as Bob
Stacy. Cotto testified that Stacy told her she had to go to hu-
man resources. Cotto asked why, but Stacy said, “I can’t tell
you”, so you have to go with me.” This was the first time in
her nearly 27 years at the facility that Cotto had been called to
HR regarding her conduct.
Ramirez and Chernock told Cotto that they had received a
complaint about her distributing materials in the lunchroom and
that on video Ramirez had seen her distributing papers in the
cafeteria. She told Cotto, “according to our solicitation policy,
she was not allowed to do that.” Cotto testified credibly that
Chernock told her she could be suspended or fired for distrib-
uting the materials.10 According to Chernock’s affidavit, which
I credit, “we told Cotto that she would receive a written warn-
ing for distributing.”11

the HR bulletin board, that I conclude that AP management is responsi-
ble for the maintenance of this posting. It would not have remained up
for as long as it did if it had been posted by someone not an agent of
AP.
9 The employee breakroom and the cafeteria are the same place,
used for breaks and meals. I refer to them interchangeably throughout
this decision.
10 As discussed below, they told Fox the same thing when he re-
ceived a verbal warning, either that day or the day before.
11 At trial, Chernock testified that “[w]e told her that she would re-
ceive a verbal warning.” She described her statement in her sworn
pretrial affidavit that “[Cotto] would receive a written warning” as an
“error.” However, I credit her sworn pretrial statement which is an
admission pursuant to Federal Rule of Evidence (F.R.E.) 801(d)(2). I
am particularly convinced by the fact that before signing it, Chernock
specifically corrected her affidavit to state that “We did not write her up
at that time but planned to give her the written warning the following
day.” While Ramirez also claimed they told Cotto she was getting a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Cotto testified credibly that at this meeting she was asked
about Sonja Guzman: “She told me Sonja Guzman—she gave
my paper to the other people. I said no. The only piece of
paper myself that day, not her.”12 Cotto denied disturbing peo-
ple, and asked who had complained about her, but Chernock
and Ramirez said they were not allowed to tell her. They ver-
bally warned Cotto at that time for not abiding by the solicita-
tion policy, disciplining her for distributing documents and
telling Cotto she was not allowed to pass out documents in the
cafeteria/break room under AP’s solicitation policy.13
According to Chernock, Mandy printed and gave Cotto a
copy of the 2001 policy, although Cotto denied that she was
provided a copy. Cotto told Ramirez and Chernock that the
union representative had told her she could pass out infor-
mation on her free time. Cotto told them she was going to con-
tact the Union. According to Cotto, Ramirez told her that the
paper she was giving out to the people from the Union con-
tained “li[es].” Cotto disagreed. The meeting lasted approxi-
mately five minutes.14
After Cotto left, Chernock and Ramirez summoned Eric
Hayes, Sonja Guzman’s supervisor, and told him to send Guz-
man to them. This was the first time, since being hired in 2006,
that Guzman had been called to HR. Chernock testified that
they had not seen Guzman distributing leaflets—the video
showed her receiving “a stack of papers” from Cotto—but they
“wanted to remind her of the solicitation policy” and that this
was “a friendly reminder not to distribute.” In the meeting,
Chernock and Ramirez (with Ramirez, who speaks Spanish
translating) told Guzman of the complaints of literature being
passed out in the cafeteria and that they had seen “historical

verbal warning, Cotto denied it. All of this is a little beside the point.
A warning is verbal, until it is converted to writing. My considered
conclusion is that the intention was to formalize the discipline as a
written warning the following day but, for reasons described below,
that decision was not carried out, and Cotto never received more than a
verbal warning as part of this incident.
12 I credit this testimony. It was credibly offered, but also, it is high-
ly plausible that Chernock inquired whether Guzman had passed out
papers too. The managers saw Cotto pass them out and hand “a stack”
to Guzman. Given the discipline of Cotto for distributing, it makes
sense that they wanted to know, and as Cotto testified, questioned,
whether Guzman had distributed the papers she had been seen on video
receiving.
13 Although I have found that the intent as of that day was to follow
up the verbal warning with a written warning, there is no dispute that a
verbal warning is the first step in AP’s progressive discipline system.
14 I have no doubt that Ramirez and Chernock knew that Cotto was
passing out union literature when they decided to discipline her and that
they were motivated by that knowledge. As noted, Ramirez had re-
ceived complaints about union literature being passed out in the break
room and Sterwerf testified that she had heard from Ramirez that Cotto
was handing out union material in the brea kroom. Management was
on alert for union activity. On the other hand, I think it likely, and I
find, that Chernock and Ramirez provided Cotto a copy of the 2001
solicitation policy. They testified credibly to this effect and it seems
entirely plausible that while disciplining Cotto, allegedly for violating
the solicitation policy, that they would provide her with a copy. As
noted, Ramirez could easily retrieve a copy from her computer, and I
believe she did.

video” of Carmen Cotto handing literature to Guzman.
Guzman told a different story. Guzman testified that she was
verbally disciplined in this meeting for distributing flyers in the
cafeteria. She testified that she denied distributing, but re-
ceived “verbal” discipline.” Ramirez testified that “Sonja be-
came very upset” and told Ramirez that she “was trying to in-
timidate her.” (Guzman denied saying that, but admitted she
felt it). Ramirez testified that she told her “there’s no reason to
feel intimidated, it is just a conversation.” This conversation
lasted 2 or 3 minutes.
To the extent the question is, was Guzman verbally disci-
plined, my conclusion is, yes, she was. Clearly, Guzman was
verbally warned not to hand out flyers and forbidden to do so.
There is something intangible about a verbal warning that is not
recorded—as AP management testified was the practice—
although they also testified that it was the first step in a pro-
gressive discipline system (one wonders how they keep track of
verbal discipline). This was a verbal warning on a disciplinary
matter, and I believe that this warning would have been used
against her had she been caught later that day distributing lit-
erature in contravention of this warning.15
Later that day, Cotto and Guzman returned to Ramirez’s of-
fice. Cotto “came in and said that she wanted to make sure that
we were aware that Sonja had not been distributing any docu-
ments in the cafeteria.” During this conversation, Guzman told
Ramirez and Chernock that she had put the information she
received into her locker.16
After that, this same day, a group of other employees, includ-
ing Cotto, came by Ramirez’s office and asked for a copy of the
policy. These included Charles Rogers, who initially came by
himself. About an hour later, Rogers returned with Ronnie
Fox, Marcus Thompson, and David Moore, and Carmen Cotto
came with them. All of these employees were provided with
copies of the 2001 solicitation policy. Rogers questioned why
the policy was dated 2001.
In her meeting with Chernock and Ramirez, Cotto had told
them that the Union had told her she was allowed to distribute
literature. Chernock suggested that this prompted her and

15 The Respondent’s claim that Guzman was not being disciplined,
but—uniquely in her 9-year tenure—was being summoned to the HR
office to be given “a friendly reminder” not to distribute literatures is a
little bit rich. She was called to the office because she was observed on
a video receiving “a stack” of union literature from an employee disci-
plined for distributing it. Clearly, Guzman was suspected of passing
out union literature. As referenced, I believe that had Guzman been
observed passing out literature later in the day, she would have been
subject to stiffer discipline, not a first offense. In this regard, I note the
evidence that of the two employees seen on videotape, Cotto, who was
the distributer, was going to get a written warning (until a decision was
made that the whole thing had to be called off). It makes sense then
that the lesser “offense” of receiving a stack of union literature, obvi-
ously to be distributed, would warrant a paperless verbal warning. But
it defies credulity, and I do not accept that Guzman was called to the
office as a “friendly reminder not to distribute.”
16 Cotto denied that she returned with Guzman. I credit Ramirez’s
recollection on this point. I also note that there would have been no
reason for this return visit if Guzman had not left the first meeting with
Ramirez and Chernock believing that she was accused of distributing
literature in the break room.
ADVANCEDPIERRE FOODS, INC. 15
Ramirez to contact legal counsel. Ramirez testified that the
next morning the vice president of human resources for AP,
Chuck Aardema, called and asked for a copy of the solicitation
policy.
Ramirez and Chernock were told by Aardema, probably June
10, that the posted policy was outdated and they were to re-
move the posted policy from the production hallway and post
the 2012 policy. They took down the 2001 policy and posted
the 2012 policy. They called Cotto in and told her they were
rescinding the warning she had been given, because it “was in
reference to an outdated policy.” Chernock testified that they
“apologized to her” and told her “[i]t was an honest mistake.”
They gave Cotto a letter, drafted by Chernock, dated June 10,
which stated:
On June 9, 2015 we had a conversation regarding AdvanceP-
ierre Foods Non-solicitation and Distribution Policy. When
we spoke we had given you an outdated policy. Attached is
the policy that has been in place since 2012. The memo is al-
so to let you know that we are rescinding the prior warning
due to the interpretation of a prior policy.
Cotto could not recall if the 2012 policy was attached, but I
find, in accordance with Ramirez’ testimony, that it was.
Ramirez told Cotto to tell Fox to come to her office and to
tell the other employees (Thompson, Moore, and Rogers) who
had been given the older policy to return to her office. These
employees were called one at a time into Ramirez’ office and
given a highlighted piece of paper listing the 2012 solicitation
policy. Ramirez told Fox that she was sorry for the miscom-
munication.
Ramirez testified that she did not call Guzman back to pro-
vide her a new policy. Ramirez indicated there was no reason
to do so because she had not disciplined Guzman and not pro-
vided her with a copy of the 2001 policy. Guzman disputes
this. She says that she was later recalled to the office and told
“that the rules had changed, that it was fine as to what I was
doing.” I credit Guzman on this. She was a credible and strong
witness. Moreover, it is implausible that Ramirez would call
back Fox, Rogers, Thompson, and Moore to make sure they
knew about the updated policy, but not call back Guzman
whom they had admonished under the wrong 2001 policy. By
their own account, Guzman had been sought out by Ramirez
and Chernock, and told to come to Ramirez’ office for the pur-
pose of being warned that she must comply with the 2001 solic-
itation policy. It does not make a lot of sense that Ramirez
would seek out everyone they talked to except Guzman to ex-
plain the change in policy. I credit Guzman.
Analysis
a. Maintenance and enforcement of the 2001 solicita-
tion/distribution policy
As set forth above, on May 13, “because of the union activity
that was occurring in the plant,” AP posted a no-solicitation/no-
distribution policy “so that associates knew what they could
and could not do.” In addition, after the Union flyering, a sign
was posted on the door of the main employee entrance that
stated: “AdvancePierre Foods has a non-solicitation and non-
distribution policy.” In smaller print at the bottom it stated:
“Any questions should be directed to Human Resources.
Thank You.” As I have found, although no one took responsi-
bility for posting this sign—which is even more overbroad than
the 2001 policy—AP management is responsible for this post-
ing and its maintenance for approximately a month.
The Respondent does not dispute that this 2001 policy, not to
mention the door flyer, were unlawfully overbroad.17 And they
were maintained for nearly a month—until June 10—after the
Respondent first learned of the union campaign on May 11, and
within 2 days posted the 2001 policy. Indeed, the Respondent
told Cotto that it was the basis for disciplining her, and Guzman
was warned that Respondent was enforcing the policy. In addi-
tion, in response to the disciplining of Cotto, four employees
came to the HR office and asked for and received a copy of the
disciplinary policy—they were provided the 2001 disciplinary
policy. Thus, the unlawfully overbroad policy was maintained
and in some instances enforced, from at least May 13 to June
10. The maintenance and enforcement of this overbroad policy
violated Section 8(a)(1) of the Act.18
b. Surveillance of union literature distribution
in the cafeteria
The General Counsel alleges that Ramirez’ review of the
videotape of Cotto distributing literature in the cafeteria consti-
tuted unlawful surveillance in violation of Section 8(a)(1) of the
Act.
An employer’s videotaping or photographing of employees
engaged in union or protected concerted activity, without prop-
er justification, violates the Act, as it has a tendency to intimi-
date employees. F.W. Woolworth Co., 310 NLRB 1197, 1197
(1993); Titan Wheel Corporation of Illinois, 333 NLRB 190,
194 (2001); Frontier Hotel & Casino, 323 NLRB 815, 837

17 Among other things, the 2001 policy prohibits distribution of lit-
erature for a broad range of purposes that would include distribution of
union literature “at any time in employee work areas or work corri-
dors.” A work “corridor,” which, logically, must be something other
than a “work area,” reasonably a passageway leading to a work area,
constitutes an overbroad limitation on distribution. Stoddard-Quirk,
Mfg., 138 NLRB 615 (1962). In addition, the door flyer policy is rea-
sonably understood as an unnuanced (and unlawful) flat ban on all
distribution and solicitation at the employer’s premises.
18 The Respondent’s contention that the 2001 policy was “mistaken-
ly” maintained or enforced is not entirely accurate, and not at all rele-
vant. It is not entirely accurate to the extent that it ignores that Ramirez
and Chernock consulted the terms of the policy as part of the discipline
of Cotto and Guzman. In other words, even if they did not necessarily
know it was illegal, or “the wrong” policy, they knew what they were
maintaining. However, even if the Respondent acted by mistake, this
does not change the significance of the fact that the policy was main-
tained and enforced for nearly a month. It has long been settled that
“interference, restraint, and coercion under Section 8(a)(1) of the Act
does not turn on the employer's motive or on whether the coercion
succeeded or failed. The test is whether the employer engaged in con-
duct which, it may reasonably be said, tends to interfere with the free
exercise of employee rights under the Act. American Freightway Co.,
124 NLRB 146, 147 (1959); Yoshi’s Japanese Restaurant & Jazz
House, 330 NLRB 1339, 1339, fn. 3 (2000) (employer’s misunder-
standing of the law not relevant to assessing unlawful interference
under 8(a)(1)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
(1997). Photographing in the mere "belief that something might
happen does not justify the employer's conduct when balanced
against the tendency of that conduct to interfere with employ-
ees' right to engage in concerted activity." National Steel &
Shipbuilding Co., 324 NLRB 499, 499 (1997), review denied,
156 F.3d 1268 (D.C. Cir. 1998).
Here, no justification is offered for the ongoing videotaping
of the employees’ breakroom. It is unlawful. However, the
specific allegation at issue (Tr. 566) is Ramirez’s surveillance
of Cotto’s distribution of union literature in the breakroom.
This too was unlawful.
Ramirez was engaging in the surveillance in response to
complaints from employees who were tired of other employee
talking to them about the Union while on break. More specifi-
cally, the decision to view the videotape of the breakroom was
made after an employee complained and provided Ramirez
with union literature given to them in the break room. The
Respondent contends that “Ramirez was following up on com-
plaints from employees, like she would in any other situation.”
(R. Br. at 28.) However, the complaints prompting the surveil-
lance were that employees were engaged in protected and con-
certed activity. Ramirez and Chernock claim that the surveil-
lance was warranted because the distribution of literature was
not permitted under the Respondent’s rules. As discussed be-
low this rule was unlawful, as maintained and applied. Indeed,
that is not seriously contested. Thus, the “justification” for the
surveillance was to observe an employee engaging in protected
activity. As in F.W. Woolworth, supra at 1197, “Here, the rec-
ord provides no basis for the Respondent reasonably to have
anticipated misconduct by those handbilling, and there is no
evidence that misconduct did, in fact, occur.” On the other
hand, employees learning that—specifically, of all their activi-
ties in the break room—their union activities in the break room
would be subject to video review, would reasonably be likely to
be intimidated. The surveillance of Cotto’s distribution of un-
ion literature (and Guzman’s receipt of it), without valid justifi-
cation, is a straightforward violation of Section 8(a)(1) of the
Act.
c. The disciplining of Cotto and Guzman
The General Counsel alleges that the disciplining of Cotto
and Guzman violated Section 8(a)(3) of the Act. I agree and
find that both disciplinary warnings were motivated by the
union activity of these employees, in violation of Section
8(a)(3) of the Act.19
As discussed above, the Respondent’s application of the un-
lawfully overbroad 2001 policy to Cotto and Guzman consti-
tutes a violation of Section 8(a)(1) of the Act, without regard to
the Respondent’s motives. Continental Group, Inc., 357 NLRB
409, 412 (2011). However, that does not answer the question
of whether the discipline was a violation of Section 8(a)(3).
The Respondent contends that enforcement of the 2001 policy
was without ill motive, and was rescinded the following day.

19 As any conduct found to be a violation of Sec. 8(a)(3) would also
discourage employees' Sec. 7 rights, any violation of Sec. 8(a)(3) is also
a derivative violation of Section 8(a)(1). Chinese Daily News, 346
NLRB 906, 933 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
The reliance on the 2001 policy, argues the Respondent, was
“not intentional or motivated by a desire to interfere with em-
ployees’ Section 7 rights.”
However, I do not accept that the true motive for disciplining
Cotto and Guzman was their violation of a facially neutral (but
unlawfully) overbroad prohibition on the distribution of all
nonwork materials. In this case, the Employer’s claim that the
discipline rested on application of the 2001 policy operates as a
pretext, albeit, unusually, one unlawful in its own right.
In truth, the 2001 policy does not sweep so broadly as to pro-
scribe all nonwork distribution even in all nonwork areas,
though Ramirez and Chernock claim to have read it that way.
In fact, as discussed (below) with regard to the clipboard issue,
the discipline of Cotto and Guzman occurred at the very time
when the Respondent was actively looking for and trying to
squelch union activity within the facility. As discussed below,
the unlawful clipboard search occurred the day before or the
same day. In fact, as I have found, Ramirez and Chernock
knew that Cotto was distributing union literature in the break-
room, they knew that Guzman had received union literature
from Cotto, and they knew that it was union literature that they
disciplined the employees for handling. The whole incident
was in response to employee complaints explicitly about distri-
bution of union materials.
The enforcement of the 2001 policy against Cotto and Guz-
man was essentially a pretext, designed to cover a direct effort
to squelch, punish and discriminate against union activity. This
discriminatory discipline for engaging in union activity is a
straightforward violation of Section 8(a)(3) regardless of
whether the Respondent now acknowledges that its solicita-
tion/distribution policy was unlawfully overbroad in violation
of Section 8(a)(1) of the Act.
The Supreme Court-approved analysis in 8(a)(1) and (3) cas-
es turning on employer motivation was established in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 395, (1983) (ap-
proving Wright Line analysis). Under the Wright Line frame-
work, as subsequently developed by the Board, the elements
required in order for the General Counsel to satisfy its burden
to show that an employee’s protected activity was a motivating
factor in an employer’s adverse action, “are union or protected
concerted activity, employer knowledge of that activity, and
union animus on the part of the employer.” Adams & Associ-
ates, Inc., 363 NLRB No. 193, slip op. at 6 (2016); Libertyville
Toyota, 360 NLRB No. 141, slip op. at 4 (2014); enfd. 801 F.3d
767 (7th Cir. 2015). Such showing proves a violation of the
Act subject to the following affirmative defense: the employer,
even if it fails to meet or neutralize the General Counsel's
showing, can avoid the finding that it violated the Act by
“demonstrat[ing] that the same action would have taken place
in the absence of the protected conduct.” Wright Line, supra at
1089.
While extended analysis is not required, all of the elements
of Wright Line, supra, are met here. Guzman and Cotto were
engaged in union activity when they distributed (or received)
union literature, AP learned of it, and unlawfully disciplined
them for it. By Respondent’s own admission, such discipline
ADVANCEDPIERRE FOODS, INC. 17
would be in violation of Section 8(a)(1). As discussed above,
they were targeted because they were distributing union litera-
ture, which was the specific complaint of employees that
prompted the review of the video in the same time frame that
the Respondent was cracking down on union activity in the
facility. There is nothing in the record to suggest that Guzman
and Cotto would have been disciplined for violating the 2001
policy had they been exchanging Girl Scout cookies in the
breakroom. The Respondent has failed to meet its burden un-
der Wright Line of demonstrating that it would have taken the
same action against them in the absence of union activity.
d. The Respondent’s remediation defense
The Respondent contends that it repudiated its unlawful con-
duct in a manner that obviates the violations. Board precedent
provides for this, but in order to be effective a repudiation of a
violation must be timely, unambiguous, specific in nature to the
coercive conduct, and free from other proscribed illegal con-
duct. Passavant Memorial Area Hospital, 237 NLRB 138
(1978); Voith Industrial Services, Inc., 363 NLRB No. 116, slip
op. at 4 (2016). Furthermore, there must be adequate publica-
tion of the repudiation to the employees involved and there
must be no proscribed conduct on the employer's part after the
publication. And, finally, the Board has pointed out that such
repudiation or disavowal of coercive conduct should give as-
surances to employees that in the future their employer will not
interfere with the exercise of their Section 7 rights. Passavant,
supra at 138–139.
Here, the repudiation did not meet that standard. While the
Respondent moved quickly—the next day—to rescind Cotto’s
discipline, and to give out the updated solicitation/distribution
policy to Cotto and the four employees it gave the 2001 policy
to the day before, that is an incomplete and inadequate repudia-
tion, given the violations.
First of all the unlawful 2001 policy, and then the even more
overbroad door flyer policy, had been posted for more than
three weeks, viewed and passed by employees on a daily basis.
No effort was made to communicate with the employees gener-
ally about the unlawfulness of the previous policy, or even
about the change in the policy. Thus, the scope of even the
attempted repudiation did not extend to the scope of the viola-
tion. Obviously, providing the new policy to five employees
would not constitute adequate publication of any repudiation.
Moreover, there was no repudiation as to Fox’s disciplinary
warning (discussed below). Further, even as to Guzman and
Cotto, there were no assurances of a future commitment not to
interfere with their Section 7 rights and no admission or even
implicit acknowledgement of unlawful conduct by the Re-
spondent in what they had done. Rather, for Cotto it was
framed as a “mistake” involving reinterpretation of an outdated
policy (rescinding “due to the interpretation of a prior policy”),
and for Guzman the Respondent merely told her, “that the rules
had changed, that it was fine as to what I was doing.” This is
insufficiently specific, insufficient as a disavowal, insufficient
as an admission of wrongdoing. I reject the Respondent’s re-
pudiation defense.
e. Interrogation
The complaint alleges two incidents of interrogation (com-
plaint paragraphs 5(e) and (f)), both during the same time peri-
od. Both incidents, as pled, involve an alleged interrogation by
Chernock and Ramirez at the HR office. One, 5(e), involves
interrogation about the activities of another employee. One,
5(f) involves only interrogation about the subject employee’s
union activities.
On brief (GC Br. at 31), the General Counsel alleges only
that Cotto was unlawfully interrogated during her June 9 meet-
ing with Chernock and Ramirez, when she was asked whether
Guzman was distributing literature. As discussed above, I have
found that during the meeting with Cotto, Chernock asked her
about whether Guzman was distributing the papers that
Ramirez saw (on video) Cotto handing to her. This fits the
allegations in paragraph 5(e) (at least as to interrogating the
employee about another employee’s union activity).
It is well established that not every interrogation is unlawful
under the Act. Whether the questioning of an employee consti-
tutes an unlawful coercive interrogation must be considered
under all the circumstances and there are no particular factors
"to be mechanically applied in each case." Rossmore House,
269 NLRB 1176, 1178 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985); Westwood Health Care Center, 330 NLRB 935, 939
(2000). While the Board has identified a number of factors that
are “useful indicia” in determining whether the questioning of
an employee constitutes an unlawful interrogation,20 the Board
has explained that "[i]n the final analysis, our task is to deter-
mine whether under all the circumstances the questioning at
issue would reasonably tend to coerce the employee at whom it
is directed so that he or she would feel restrained from exercis-
ing rights protected by Section 7 of the Act." Westwood, supra
at 940; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).21

20 Westwood Health Care Center, 330 NLRB at 939, quoting Per-
due Farms Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998). These
include the "Bourne factors," enunciated in Bourne v. NLRB, 332 F.2d
47, 48 (2d Cir. 1964), and set forth in Westwood, supra at 939:
(1) The background, i.e. is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator ap-
pear to be seeking information on which to base taking action against
individual employees?
(3) The identity of the questioner, i.e. how high was he in the compa-
ny hierarchy?
(4) Place and method of interrogation, e.g., was employee called from
work to the boss's office? Was there an atmosphere of unnatural for-
mality?
(5) Truthfulness of the reply.
21 Of course, whether or not the questioned employee was actually
intimidated is irrelevant. “It is well settled that the basic test for evalu-
ating whether there has been a violation of Section 8(a)(1) is an objec-
tive test, i.e., whether the conduct in question would reasonably have a
tendency to interfere with, restrain, or coerce employees in the exercise
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
I have no doubt that this questioning, brief as it was, was co-
ercive and unlawful. An employee is called off the shop floor
into the HR office and confronted by two top HR officials. In
the midst of unlawfully disciplining her for union activity, they
ask about whether another employee was also engaged in the
same activity, apparently, and actually, for the purpose of tak-
ing action against the other employee. This is clearly an unlaw-
ful interrogation. The Respondent’s defense is limited to the
assertion that it did not happen. I have found otherwise.22
III. SEARCHING OF CLIPBOARDS, CONFISCATION OF CARDS;
ENFORCEMENT OF SOLICITATION/DISTRIBUTION POLICY;
THE DISCIPLINING OF FOX (COMPLAINT PARAGRAPHS
5(B), (C) AND (D) AND 6(B))
Facts
Many AP employees carry a clipboard with a closed metal
container affixed to the top that is used to carry daily work
materials. Typically this clipboard box holds work materials
such as a knife, pens, and daily paperwork. This daily paper-
work, called “meat sheets” and issued by AP, indicate the
grinding and meat specifications for the day’s work. The meat
sheets are turned in at the end of the day.

of their Section 7 rights, and not a subjective test having to do with
whether the employee in question was actually intimidated.” Multi-Ad
Services, 331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363 (7th
Cir. 2001) (Board’s emphasis). Accord, Miller Electric Pump, 334
NLRB 824, 825 (2001); Joy Recovery Technology Corp., 320 NLRB
356, 356 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998).
22 The General Counsel does not allege on brief that Guzman was
interrogated in her meeting with Chernock and Ramirez. I will dismiss
the second pled allegation of interrogation, complaint paragraph 5(f).
The General Counsel also contends (GC Br. at 31–32) that an inter-
rogation violation should be found based on Guzman’s testimony that
the “plant manager,” whom she identified as “Dwayne,” asked her,
essentially, who was behind the union drive. Dwayne Stanford, who
was the operations manager (not the plant manager), testified and de-
nied asking Guzman anything like this. Employer Diana Concepcion
also testified that “Eric [Hayes] asked me if I was in agreement with the
union” and another “manager” asked her “if a person or a girl was
giving out the cards within the company and to let him know if some-
body was giving out the cards.” Stanford denied having this conversa-
tion with Concepcion. Hayes denied ever speaking to Concepcion
about the Union. None of these allegations are set forth in the com-
plaint, or were the subject of a motion to amend. Accordingly, I make
no finding regarding them. The General Counsel contends that a viola-
tion should be found as to the first of these allegations and that, alt-
hough not alleged, the issue was fully litigated. I do not agree. First of
all, the complaint was amended several times before and during the
hearing as to a variety of matters—but not this. I do not know of a
reason that the matter could not have been raised during the hearing.
Second, the allegation was not admitted to by the Respondent, or any of
its witnesses, leaving the possibility that, had it been alleged as a viola-
tion, the Respondent might have undertaken a different or more vigor-
ous defense. As noted, Stanford denied the allegation, but it is not even
entirely clear that he is the alleged perpetrator. It could have been the
then plant manager, or someone else. Given that it was unalleged and
factually denied, the allegation is too uncertain, in my view, to find that
it was fully and fairly litigated. See Dalton School, 364 NLRB No. 18,
slip op. at 2 (2016) (interrogation not fully and fairly litigated where
respondent not put on notice that the facts pertaining to the encounter
would be used to prove a separate interrogation violation).
Employee Fox testified that he and others usually keep the
clipboard in their locker between shifts. Within the year, AP
started issuing clipboards to new employees. Fox still uses the
one he bought, before AP started providing them. It is similar
to the ones purchased by AP but his older clipboard is rusted
inside and out.
AP has developed Good Manufacturing Practices (GMPs),
which are rules and standards designed to ensure food quality
and sanitation standards on the workplace floor. The current
GMP document was entered into evidence. Supervisor Bishop
testified that rule 6.5 generally governed the items employees
could have in their possession on the production floor. Rule 6.5
states:
Spitting is forbidden inside or outside of the building. No
food, drinks, use of tobacco products, medications including
cough drops, toothpicks, candy, breath- strips, gum etc. are al-
lowed in any designated production, warehouse, cooler, freez-
er, trash dock, attic, dock areas or in fork-lift/pallet jack, com-
pressor, battery, boiler or engine rooms.
In addition, the testimony of employees and managers was
largely in agreement that items such as chewing gum, eyelash
or fingernail enhancers, and lotion are not permitted on the
production floor, including in clipboards. However, based on
employee testimony, certain items like check stubs or photo-
graphs, and occasionally other personal items are sometimes
kept in the clipboards, whether or not in compliance with the
GMPs prohibitions. Similarly, a rusted clipboard could be
considered not to be in compliance with GMPs, but Fox’s rust-
ed clipboard was never raised as an issue by management.23
Indeed, the consistent employee testimony is that prior to June
8, while supervisors may have done “QA” (quality assurance)
audits to make sure the employees’ knives matched the appro-
priate grinder, and checked tagout/lockout devices, both of
which are kept in clipboards, supervisors had never before gen-
erally searched inside employee clipboards looking for papers
and other contraband.24
Chernock testified that in a supervisors/management meeting
she heard concerns that employees were passing out union au-
thorization cards on the production floor. In response, Cher-
nock, Aardema, and Plant Manager Sterwerf decided to con-
duct an audit on all grinders and machine operators, which
would involve checking clipboards for items prohibited from
being on the plant floor. Chernock was normally not involved

23 Bishop testified that he did not notice rust on Fox’s clipboard and
if he had he would have had the clipboard replaced. The implication
was that Fox’s clipboard was not rusted. I note that neither side pro-
duced the clipboard for inspection at the hearing. I found Fox’s de-
meanor highly credible and I credit his testimony as to the condition of
the clipboard he worked with every day.
24 Bishop agreed (based on leading questioning, see Tr. 668, 670)
that the GMPs were enforced by “routine” and “regular” audits and by
“essentially watching everybody on the floor.” He claimed that he tries
to do audits randomly, but also monthly looking for “[s]tuff that doesn’t
belong in the clipboard, toolboxes, cleanliness.” I cannot credit this.
Based on the more specific, uniform, and credited employee testimony,
I find that clipboards were rarely if ever searched by supervisors prior
to on or about June 8, 2015.
ADVANCEDPIERRE FOODS, INC. 19
in a decision to conduct an audit of the clipboards. According
to supervisor Bishop, at this meeting all first and second shift
supervisors were directed to conduct a “clipboard audit.”
On or about June 8, management performed a search of em-
ployee clipboards. Employee Diana Concepcion testified that
supervisor Bishop approached her and asked to check her clip-
board. After he did, he told her it was fine. He found pay stubs
and some hand lotion and told her to put the stubs in her pocket
“because somebody could steal my pay stubs.” He did not
confiscate the lotion or pay stubs.25 Bishop then searched an-
other clipboard that was unattended nearby that belonged to
employee Vianey Guzman. Guzman was not present during
this search.26
Machine Operator Kenneth Favors testified that his supervi-
sor, Bob Stacy, approached Favors and asked to check his clip-
board. Stacy was referring to a clipboard sitting on a metal
stand near where Favors was working. However, Favors does
not carry a clipboard and he told Stacy that it was not his clip-
board. He asked Stacy why he wanted to look at it. Stacy told
him, “Well, there’s people who have stuff they shouldn’t have.”
This testimony was unrebutted. Prior to this incident, Favors,
who had worked at AP for more than 12 years, had never heard
of supervisors checking clipboards.27
Fox was at work with his clipboard beside him on a table,
when his supervisor Derrick Cox and another manager, whose
name was unknown to Fox, approached him without notice and
said, “Fox, I’ve got to check your clipboard.” Cox opened the
clipboard, found a red pen (which is prohibited, only blue and
black are to be used). Cox took the pen, and returned the clip-
board to Fox. He said, “Fox, you know you can’t have this on
the floor.” Cox then left. There were union authorization cards
in the clipboard box, but Cox did not notice or find (or remark
upon) them.
About five minutes later, another supervisor, Daran Bishop,
approached Fox and told Fox that he needed to check his clip-
board. Fox told him that Cox had already checked it, and Fox
walked away and went back to work, leaving his clipboard on
the table. Soon thereafter, another machine operator (Aiden)
who works with Fox told Fox that Bishop went into Fox’s clip-
board and removed union authorization cards from the clip-
board box. Bishop left the area, heading away from production.
Later, Bishop approached Fox and told Fox to come to the HR
office with him. In his 9 years at AP, Fox had never before
been sent to HR.28

25 Bishop did not recall whether or not he searched Diana Concep-
cion, and did not recall finding any lotion. I credit Concepcion’s more
specific recollection.
26 Bishop testified generally that during this clipboard audit he did
not look in any clipboards when the owner was not present. However,
he testified that he had done so in past audits. Given the more specific
testimony on this issue, I do not credit Bishop’s denial.
27 USDA inspectors at the plant sometimes check toolboxes to make
sure tools are clean, but Favors testified with certainty that supervisors
had not previously checked toolboxes.
28 Bishop testified that Fox was present when Bishop checked his
clipboard and put his arm over it to keep it closed. Bishop did the audit
anyway. I do not see the dispute between Fox’s version of events and
Bishop’s as material. I do not resolve the disparate accounts. All agree
Fox had been subject to quality audits in the past, based on
the GMPs, where managers check the employees’ knives to
make sure they match the appropriate grinder, and check ta-
gout/lockout devices. But this was the first time that Fox had
ever seen supervisors searching inside of clipboards for viola-
tions, and searching through the papers in the clipboard.
Cox and Bishop reported to Ramirez that they had found un-
ion cards in Fox’s clipboard. They gave her the confiscated
cards. Fox was called to the HR office over the PA system.
When Fox arrived at the HR office, Ramirez and Chernock
were there. Bishop had escorted Fox to the office, and then
left. Fox was asked to close the door. Chernock and Ramirez
referenced the authorization cards and Fox was then told by
Chernock that AP had “a nonsoliciting nondistributing policy.”
Fox said he understood that, but that he had not distributed the
cards. Ramirez challenged him, “So the cards would just sit in
your box.” Fox said, “yes.” Ramirez gave Fox a “verbal warn-
ing,” telling him that “if it was to happen again . . . you could
possibly be suspended or terminated.” In this meeting, neither
Chernock nor Ramirez referenced “GMPs” that regulated what
items could be brought to the production floor by employees.
The meeting lasted approximately five minutes.29
Analysis
The General Counsel alleges that the Respondent’s clipboard
search and confiscation of union cards from the clipboards
constituted unlawful surveillance of employees’ protected and
concerted activities, in violation of Section 8(a)(1). The Gen-
eral Counsel further alleges that the disciplining of employee
Fox, who was found to have union cards in his clipboard on the
work floor, violated Section 8(a)(3) of the Act.
The evidence is clear that the Respondent’s (on or about)
June 8 “clipboard audit” was a search for union authorization
cards. Those found were confiscated. This effort to search for
the possessors of union authorization cards is easily found to be
a straightforward case of unlawful surveillance of employees’
union activity. The search would reasonably interfere with
employees’ willingness to engage in concerted and protected
activity. Hospital of the Good Samaritan, 315 NLRB 794, 810
(1994); Micro Metl Corp., 257 NLRB 274, 275–276 (1981).
The Respondent’s defense is that it was enforcing a neutral
rule that, for safety and sanitation reasons related to production,
prohibits any nonwork or “personal” items on the production
floor. For purposes of my analysis only, I will assume, arguen-
do, that such a rule could be consistent with the Act in this

that union authorization cards were found in Fox’s clipboard and taken
to Ramirez.
29 At trial, Ramirez testified that though her sworn pretrial affidavit
characterized Fox’s discipline as a violation of the solicita-
tion/distribution clause, in fact, it was a GMP violation, and that her
description of it as a solicitation violation was “a mistake.” However,
my finding, based on Fox’s credited testimony, and buttressed by affi-
davit impeachment evidence, is that in the disciplinary meeting
Ramirez told Fox he was being verbally warned for violating the solici-
tation/distribution policy and that the GMPs were not mentioned. In
addition, I consider Ramirez’s pretrial statement to constitute an admis-
sion. See, F.R.E. 801(d)(2).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
situation,30 and that there was such a rule.31
Even granting these (undue) assumptions, in this case the vi-
olation is apparent based on the credited testimony. The
search, admittedly triggered by reports that union authorization
cards were being solicited on the floor, was unprecedented and
directed toward finding and confiscating union authorization
cards. Fox, in particular, was a suspect, his clipboard was
searched twice. According to the consistent and credited em-
ployee testimony, there had never been such clipboard searches
in the past, for any other contraband, with supervisors delving
into clipboards even in the absence of the employee who main-
tained the clipboard. Second, during this search alleged “con-
traband” that was found and unrelated to union activity was
ignored or did not provoke discipline. (Fox’s red pen, and rust
on clipboard; Concepcion’s pay stubs and hand lotion.) More-
over, notwithstanding the Respondent’s efforts at trial to link
the whole matter to GMPs, the issue on June 8, as explained to
Fox, was Fox’s violation of the Respondent’s (unlawfully over-
broad) solicitation/distribution policy. GMPs, sanitation and
not having personal items on the floor—i.e., the entirety of the
Respondent’s defense here—went unmentioned in the discipli-
nary meeting.32
Thus, the clipboard search was not a neutral application of
safety and sanitation rules, but an unlawful search to uncover
who was in possession of union authorization cards.
When the union cards were found in Fox’s possession, Fox
was disciplined. No one else was disciplined for possession of
any other allegedly “unauthorized” items. As the facts show,

30 I have my doubts. While I agree that an employer’s need for a
clean and sterile work environment could overcome the presumptive
right to solicit union authorizations in work areas (during nonworking
time), it is clear that the “meat sheets” paperwork carried daily by em-
ployees onto the shop floor and stored in the clipboards carry no more
assurance of cleanliness or sterility, or any other feature of safe prac-
tice, than union authorization cards. In this regard, it is to be remem-
bered that the Act provides an affirmative right to engage in union
activity. A content-neutral ban on personal items is presumptively
invalid to the extent it covers (or is reasonably understood to cover)
union materials.
31 I note that the assumption is for purposes of argument only. In
fact, it is unwarranted. For instance, Fox testified that he has never
been told that he could not keep personal papers in his clipboard, and
he regularly keeps check stubs in his clipboard. I think his colloquy
with counsel on cross examination (Tr. 166–167) vividly demonstrated
his sincere and justifiable uncertainty about the scope and exactingness
of the rules on what could and could not be brought onto the production
floor. Moreover, his acknowledgement that “now”—after being disci-
plined—he understands that having authorization cards in his clipboard
violated the company’s rules, but “then” he did not know it, is not
exactly bolstering to the Respondent’s position. But even more to the
point, the rule that Supervisor Bishop testified governed the items em-
ployees could have in their possession on the production floor—GMP
Rule 6.5—does not, by any stretch, prohibit personal papers from the
production floor. See Rule 6.5, set out above.
32 Moreover, as noted by the General Counsel (GC Br. at 30–31),
Fox received a verbal warning, which, under the Respondent’s progres-
sive discipline system (GC Exh. 17) is an initial penalty for a violation
of the unauthorized solicitation/distribution rules. He did not receive a
written reprimand, which is the initial penalty for failure to follow
GMPs.
Fox was disciplined for the protected activity of possessing
union cards, not for violating GMPs and, not even—really—for
violating the unlawful distribution/solicitation policy. Fox’s
protest to Ramirez that he had not been distributing or solicit-
ing, but merely in possession of the cards, went unheeded. As
with Cotto and Guzman’s discipline, described above, and
which occurred the next day, the Respondent represented to
Fox that it was enforcing the solicitation policy against him.
This was an unlawful enforcement of an overbroad rule, and a
violation of Section 8(a)(1). But it was also a pretext for the
Respondent’s real motive—the discriminatory disciplining of
Fox for possessing union authorization cards. Thus, the evi-
dence shows that the clipboard search, Fox’s discipline, and the
Cotto/Guzman incident, were efforts to stamp out union activity
in the facility and create a climate in which employees risked
discipline for involvement in union activity inside the build-
ing.33
In terms of Wright Line, Fox engaged in protected and con-
certed activity and was discovered to have done so by the Re-
spondent, when it found the authorization cards in his posses-
sion. The Respondent’s animus is not in doubt. The Respond-
ent has not shown, in any way, much less carried its burden, of
demonstrating that Fox would have been disciplined in the
absence of his protected union activity. Wright Line. Fox’s
discipline, then, was a clear violation of Section 8(a)(3).34
IV. INTERNET SURVEILLANCE; THE DEMAND FOR
DOCUMENTATION OF IDENTITY; THE SUSPENSION OF
DIANA CONCEPCION (COMPLAINT PARAGRAPHS
5(G), (H), AND (I), AND 6(D))
Facts
Diana Concepcion is a line coordinator at AP. She has
worked at the facility since October 2008. The record demon-
strates that she was an early, active and open supporter of the
union campaign.35 On Sunday June 14, 2015, Concepcion,

33 Notably, for two of the three employees (Fox, Guzman, and Cot-
to) who were allegedly disciplined for violating the solicita-
tion/distribution policy, AP had no evidence that they had solicited or
distributed anything at all. It was their union activity that provoked the
discipline.
34 In addition, as with Cotto and Guzman, AP’s assertion to Fox that
he was being disciplined for violating the 2001 solicitation/distribution
policy constitutes unlawful enforcement of an overly broad solicita-
tion/distribution policy in violation of Section 8(a)(1), without regard to
motive.
35 See, e.g., Tr. 206–209 (Concepcion passed out flyers in front of
facility on June 1 while supervisors watched from the facility hallway);
Tr. 264–265 (Concepcion handed out flyers in plain view and was
observed by management including Ramirez). I note that on brief
while the Respondent vigorously defends the allegations relating to
Concepcion on a number of grounds, it does not claim that it was una-
ware that Concepcion was a supporter of the Union at the time of the
events involving her. However, during the hearing, Ramirez denied
knowing before June 16 that Concepcion was a union supporter. I do
not believe and I discredit that. In addition to the above cited evidence,
and in addition to the fact that the Respondent received reports on
union activities, including reports of union meetings from employees
and supervisors, I note, as discussed further below, that Ramirez de-
scribed Concepcion as “a union supporter” in a June 16 email to
Aardema identifying Concepcion to Aardema. Ramirez wrote:
ADVANCEDPIERRE FOODS, INC. 21
along with Sonja Guzman, spoke about the union campaign on
a show on a local Spanish-language radio station. The union
conducts the radio show monthly about the AP union cam-
paign.
Early Tuesday morning June 16 (at 2:31 am), production su-
pervisor Don Lewis emailed Ramirez providing the following
information related to the union campaign:
Hi,
A second shift QA auditor who has sometimes given me un-
ion updates said that there is a Spanish language radio station
that broadcasted a question and answer session about the un-
ion activity at our plant. The station is 97.7 La Mega. She said
that it was Son[j]a Guzman and another lady named Diana be-
ing interviewed by the DJ and maybe a union representative.
She didn't get all of the interview but thought that it may be
available on the station's website.
Lewis’ note triggered a swift reaction among management
that morning. Although it is unclear from the record how he
received it, at 8:01 am Aardema sent a note to Lewis, copied to
Ramirez, Ernie Hayes, Sterwerf, Stanford and AP’s retained
union consultant Hawkins, thanking Lewis and mentioning that
he was “sharing this with John [Hawkins] so we can discuss
this morning.”
Ramirez is scheduled to arrive at work by 8 a.m. She
plunged into follow up on Lewis’ email as soon as she arrived
at work. She went to La Mega radio’s Internet site to see if she
could listen to the union radio show. She didn’t find it, but did
click to a link that brought up the radio station’s Facebook
page. On that page, Ramirez saw a posting by the radio station,
dated June 14, at 4:50 pm, that said, “basically” in Spanish “Up
next, the hour for the workers talking about the campaign at
Pierre Foods with Local 75.” Ramirez printed a screen shot of
this page “moments after” clicking on it. The screen shot (R.
Exh. 5) indicates it is 8:16 am. The post about the Advance
Pierre campaign had one Facebook “like” under it, from Yazz-
min Trujillo. She clicked on the link for Yazzmin Trujillo,
which brought her to Trujillo’s Facebook page.
The cover photo on Trujillo’s Facebook page36 was of a
smiling child and the profile backdrop appeared to be a child’s
drawing. That same drawing appears as the latest post, dated

“[She is] Diana Concepcion. She is on 1st shift here at AP and is a
union supporter.”
This email was sent minutes after she learned that an employee
named “Diana” had appeared on a pro-union Spanish speaking radio
show (there were only two Spanish-speaking Dianas in the facility),
and minutes after finding a Facebook posting “liking” the show from a
Facebook posting with what she believed to be Concepcion’s picture.
The casual use of the word “union supporter” to identify and describe
Concepcion to Aardema belies the claim that Concepcion’s union sup-
port was brand new information for Ramirez. Concepcion’s union
support was no more new news to Ramirez than was the fact that she
worked on first shift.
36 With a reported 1.59 billion monthly active users worldwide and
over 150 million members in the U.S., I am going to assume the read-
er’s familiarity with the Facebook-based terms used in this decision.
(https://en.wikipedia.org/wiki/Facebook)
June 8, with a note, in Spanish, that translates approximately as
“”My son supposedly drew a picture of me.” Ramirez then
searched through the photos tab on Trujillo’s Facebook page.
Ramirez testified that she did this “[b]cause I was curious to see
who Yazzmin Trujillo was and I didn’t recognize the name, so I
was just curious.”
This brought up a photograph (R. Exh. 5(b)) that Ramirez
believed to be of AP employee Diana Concepcion. According
to Ramirez, her reaction “at this point” was “why is Diana
Concepcion’s picture on this page with the name Yazzmin Tru-
jillo[?]” She then proceeded to look through—scour, I think it
is fair to say—Trujillo’s Facebook page, searching “Friends,”
reading comments, and generally looking through the profile.
She even looked at the Facebook pages and photos of two of
Trujillo’s friends who shared the last name Trujillo. Ramirez
spent a significant amount of time that morning performing this
search, returning to it again the “the following day because I
was trying to just see how if there were friends on there that
shared the last name Concepcion or if there were only friends
with the name Trujillo.” Ramirez took several screenshots of
what she found. She also “pulled” Concepcion’s benefit file
and reviewed it: “I want to see if she had listed herself as mar-
ried, and maybe that would explain to me why her last name or
the name Trujillo would be the name of the friends” on this
Facebook page. Concepcion was listed as single in her benefits
file. However, her file listed as her beneficiary an individual
with the last name Trujillo.
Based on the foregoing Ramirez testified that “I felt that
there was a strong possibility that she may not be who she pre-
sented herself to be.”37
While this conclusion was based on a review that continued
into the following day, Ramirez did not wait to bring these
matters to the attention of upper management. We know from
the screenshot that by 8:16 a.m. Ramirez was on Trujillo’s
Facebook page. In other words, minutes after arriving at work,
she received Lewis’ email, went to the radio station’s internet
page, and entered Trujillo’s Facebook page.
Two minutes later, at 8:18 am, Ramirez wrote to Aardema,
asking: “Are we meeting this morning? I have some news to
share.” At 11:21 a.m., Aardema responded telling Ramirez,
“we don’t have a call this morning . . . could you let me know
the information you wanted to share?” She responded to
Aardema at 11:36:
This morning I went to La Mega's website to see if they had
any archives, so I could hear what the interview was about. I
didn't find any archives on their website, so I went to their fa-
cebook page and found a message from 4:50pm on Sunday

37 According to the Respondent’s brief (R. Br. at 34–35), the sum
basis for Ramirez’s belief was that it
was obvious to Ramirez [ ] that Concepcion posted pictures of herself
on Facebook under the name Yazzmin Trujillo, that Concepcion re-
ferred to other Trujillos on Facebook as her “papi” (“dad”), “herman-
ito” ("brother") and "Tia" ("aunt"), and that Concepcion's benefit file
indicated that her beneficiary is a Trujillo, who also happens to live
with her. (Tr. 795:11–15; 796:5–8; 797:16–21; 798:20–25; 799:10–
25). These circumstances created a reasonable suspicion in Ramirez's
mind that Concepcion was very likely Yazzmin Trujillo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
that they were about to talk about the union campaign at
Pierre Foods. On that post their was 1 "like[,]"[ ] so I clicked
on the name (Yazzmin Trujillo) and the picture shows who I
know as Diana Concepcion. She is on 1st shift here at AP and
is a union supporter.[38]
I am concerned that she may have provided false documents
when she began her employment with us. Thanks.
A few minutes later, at 11:42 a.m., Aardema responded, stat-
ing:
Thanks for letting me know and I understand the concern. Do
we have any history with this type of situation? While she
may be a supporter of the union campaign, we need to be sure
that we're approaching this regardless of her views in that re-
gard and in the same manner as we would otherwise. Thanks
and let me know.
Ramirez responded at 11:56 a.m.:
We had the same type of situation come up a couple of years
ago. In those cases we called the employee in to HR, ex-
pressed our concern, then gave the employee a few days to
bring us additional documentation to show us that they are the
person they were hired as. I recall two cases and I believe we
ended up terming both because they could not provide the
documentation. Thanks.
Ramirez’ reference to “the same type of situation” arising in
recent years was to two employees, in late 2012 and early 2013,
as to whom a Facebook page with a name different than the
photo of the employees was found. The circumstances sur-
rounding how Ramirez came to find this information on the two
employees is not part of the record. Ramirez demanded addi-
tional documentation of their identity, documentation different
than the employees had provided when hired. When they did
not provide it, they were terminated for “falsification.” How-
ever, one of the employees subsequently provided additional
documentation and was rehired, and continues to work for AP.
Based on the Facebook investigation, Ramirez, in consulta-
tion with Aardema, decided to require additional evidence of
identification from Concepcion.
The next day, on June 17, Ramirez conducted a meeting with
Diana Concepcion. This meeting was also attended by then
Plant Manager Ernie Hayes. At this meeting, Ramirez asked
Concepcion if she had gone to the radio show and Concepcion

38 Ramirez suggested in her testimony that this reference to Concep-
cion as a union supporter was based solely on the fact that her Face-
book sleuthing had led her to believe that the person who “liked” the
union radio program was Diana Concepcion and that, therefore, this
must be the Diana identified by Lewis as the AP employee on the radio
show. I do not believe that. As noted, above, I discredit the suggestion
that this was the first Ramirez learned or came to believe that Concep-
cion was a union supporter. Indeed, given Ramirez’s professed in-
depth knowledge of the AP workforce, given that there were only two
Spanish-speaking Dianas in that workforce, given the record evidence
of Concepcion’s open union support including her past leafleting in
view of management, and specifically, in front of Ramirez, I conclude
that when Ramirez read Lewis’ email she knew then it was more likely
than not that the Diana speaking for the Union on the Spanish-language
radio show was Diana Concepcion.
told them yes. Ramirez told Concepcion that she had been
looking on the Internet to see if she could find the radio station
broadcast, and “I located a Facebook page and walked her
through the entire events of how I found this Facebook page for
Yazzmin Trujillo.” Ramirez told Concepcion there were con-
cerns about her identity. Concepcion told Ramirez that she did
not know what Ramirez was talking about and that she did not
have a Facebook page. Ramirez told Concepcion that they
were going to investigate and would let Concepcion know what
was going to happen.
After the meeting, Ramirez called Concepcion back about
five minutes later and told Concepcion that “we were going to
need to request documents from her to prove her identity.”
Ramirez and Hayes then provided Concepcion with a memo,
dated June 19, that Ramirez received pre-written from Aarde-
ma. The memo was directed to Diana Concepcion from
Ramirez, with the subject line “Request – Additional Verifica-
tion of Identity.” The memo stated:
AdvancePierre Foods is committed to having a lawful work-
force, and federal law prohibits us from employing individu-
als that we know are unauthorized. AP also has a policy un-
der which it may terminate the employment of employees
who provide false information or documentation to the Com-
pany—whether the falsification is discovered at the time it is
made or later.
When a situation comes to our attention resulting in a reason-
able concern suggesting an individual may not be who he/she
claimed to be for employment purposes, it is AP's practice to
request additional evidence to prove that the documentation
provided at the time the I-9 was completed was valid. In line
with this policy, and how prior similar situations have been
handled, we asked you during our meeting on June 17th to
provide us with additional evidence that the I-9 documents
provided at the time of your employment were indeed valid
and support that you are Diana Concepcion. This evidence
cannot be the same type of evidence you previously provided
for your I-9 (State ID card /Driver's License or Social Security
Card). Instead, it should be other official documentation that
supports that you are Diana Concepcion, such as an unexpired
passport, birth certificate, military ID, etc. (see attached ex-
ample list of acceptable documents). Please provide this addi-
tional information to me by June 29, 2015. We will review
that information and let you know if there are still any ques-
tions.
Thanks for your help in providing this information.
A second page provided to Concepcion at the meeting con-
tained a list of acceptable documents to prove identity. (This
page was created by the Federal government for employer and
employees’ use in completing Form I-9 identification and em-
ployment authorization requirements). Ramirez gave Concep-
cion eight business days to provide the information, a matter
that had been decided upon by Aardema who kept in close con-
tact with Ramirez on this situation. The meeting ended.
A couple of hours later Concepcion returned to Ramirez’s
office accompanied by co-workers Vianey Guzman and Car-
men Cotto. Ramirez brought Ernie Hayes in as a witness.
ADVANCEDPIERRE FOODS, INC. 23
With mostly Ramirez, Cotto, and Concepcion speaking, they
discussed the Facebook issue. Cotto and Guzman said that
many people have Facebook pages with names different than
their own, and Guzman used herself as an example saying she
used her single name for employment but her married name on
Facebook. The employees told Ramirez it was illegal to re-“E-
Verify” an employee. Ramirez said she was not re-“E-
Verifying” Concepcion, but rather “confirming that the person
who was sitting in front of me was Diana Concepcion.”39
Concepcion provided the following letter to Chernock and
Ramirez, dated June 26, 2015:
My employer, AdvancePierre Foods, has instructed me to
provide additional documents, other than the ones I provided
when I was; hired, to show that my original I-9 documents
were valid. I believe that this request is illegal, discriminatory,
and retaliatory.
Under the rules for E- Verify, companies may not verify or re-
verify current employees. The Company has no legitimate
reason and has provided no proof for why it feels it needs ad-
ditional documentation from me. In addition, companies are
not allowed to specify which documents an employee may
use for verification. By telling me that I cannot provide cer-
tain documents, Pierre is acting unlawfully. Companies may
also not target groups of employees based on such character-
istics as national origin or union activity. I believe that the re-
quest by Pierre is discriminatory and nothing more than an at-
tempt to bully and intimidate me and my co-workers so that
we will not exercise our right to form a union.
In order to avoid being disciplined or terminated for insubor-
dination, however, I am providing a birth certificate, under
protest. I trust this will end the inquiry and no further action
will be taken against me.
Attached to this, and also provided to Ramirez, was a Puerto
Rican birth certificate for Diana Concepcion. However, the
birth certificate indicated that it had been issued December 17,
2003. Ramirez told Concepcion that she could not accept a
Puerto Rican birth certificate issued prior to July 1, 2010.
Ramirez offered to give Concepcion more time to obtain a
valid birth certificate, telling her that “if she chose to pursue
acquiring a new birth certificate from Puerto Rico that the
company would help pay for expedited shipping, and that if she
needed time off work in order to obtain it, that we would give
her that time, and that it would be paid, or that she could return
to work, either which she chose.” Concepcion told Ramirez
she would obtain the birth certificate but that she was relying
on the Union’s help, and that she would return to work the next
day. The next day, June 30, Ramirez met with Concepcion and
provided a letter to Concepcion (in Spanish and English), from

39 E-Verify is a Federal government internet-based program that
compares the Form I-9 information submitted by new employees with
data in U.S. government records. I note that Ramirez denied that she or
AP was using the E-Verify system to check Concepcion’s documenta-
tion or identity. Ramirez testified that she agreed that E-Verify was not
to be used with regard to incumbent or current employees.
Chernock, and dated June 30, 2015, stating
On June 29, 2015, you provided a copy of a birth certificate
from Puerto Rico in response to our request to provide addi-
tional confirmation of your identity. Unfortunately, on July
10, 2010, Puerto Rico declared that all birth certificates issued
prior to that date would be invalid since they had been used in
the past to illegally obtain U.S. passports, Social Security
benefits, and other federal services. The Certificate you pro-
vided is dated December 17, 2003, and is
therefore invalid.
In our conversation on June 29th with Mandy Ramirez, you
indicated that you do not have another acceptable form of
identification. You also indicated your intention to pursue a
valid birth certificate from Puerto. Rico. I want to provide you
with a website that can be used for that purpose, which will
take between 8-12 days to receive an updated certificate. That
site is:
https://serviciosenlinea.gobierno.pr/Salud/Servicios.aspx?goto
=nacimiento. If you decide to use this website, please use the
Express Service shipping which will speed up the process.
The Company will gladly reimburse you the cost of that ser-
vice if you use this specific site. If you choose to pursue a
certificate through another source, please know that such cer-
tificate must be valid and received through a reliable source.
I do want to clarify a few points of concern that were raised in
your letter of Jun 26, 2015. Please be assured that we are not
verifying or re-verifying your identity through E- Verify. We
also informed you when we first met on this topic regarding
the reasons why there was a reasonable concern regarding
your identity. And, contrary to what you may have been told,
there is a very specific list of acceptable documents (attached
again for your reference) that establish identity or employ-
ment authorization on the federal government's I-9 form as
required by law.
More information can be found on these requirements online
on this site:
http:/ /www.uscis.gov./i-9-central/acceptable-documents
As mentioned when we spoke, you will be paid for your work
time on June 29th and there will be no discipline imposed for
that day. We also provided you the option to return to work
while you're pursuing your birth certificate, or to be on paid
leave to provide you additional time to do so. You elected to
return to work on June 30, 2015 and work during this period.
In order to provide at least 12 business days for you to receive
a valid birth certificate from Puerto Rico, please provide that
documentation to us no later than Friday, July 17, 2015.
Again, you may continue to work during this time.
Please let me know if you have any questions.
As referenced above, AP supervisors and management
passed along to upper management information it learned about
the union campaign. By email dated the afternoon of June 30,
Ernie Hayes sent a note to Aardema, copying Chernock,
Ramirez, and Sterwerf, indicating that
I heard from a supervisor that the situation with Diana Con-
cepcion may have sparked the union cord again. He heard
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
from one of his sources that the union talk was dying down
until this situation with Diana came about. In his sources
words (who is not a union supporter) “Why don’t they just
leave these people alone and quit F-ing with them. Now this
union stuff is starting again.”
Approximately 20 employees signed a petition calling on AP
to cease requesting re-verification of Concepcion and accusing
AP of frightening her and intimidating employees from creating
a union. The petition made a number of demands regarding
ceasing the re-verification of Concepcion and other workplace
demands. The petition stated that “We are prepared to take
collective action if our demands are not met by July 16, 2015.”
In addition, a rally was held in the parking lot on July 16 by
employees, at which time Concepcion delivered a letter to
Ramirez that contended that AP’s request for documentation
was unlawful and unwarranted. Notwithstanding this, the letter
stated
In order to avoid being disciplined or terminated, however, I
am attempting to comply with the Company’s request and ob-
tain the documentation it has requested but have not been able
to do so yet. I am requesting at least an additional 90 days to
obtain the information. Please let me know.
AP did not give Concepcion additional time. On July 17, the
deadline set by AP, Concepcion called off work, leaving a
voicemail that she was on strike for the day. (As discussed
below, a number of employees called off as part of a one-day
strike that day.)
Ramirez called Concepcion and after a few calls, reached her
that day. Ramirez asked Concepcion “if she was . . . able to
give us the document. She said she did not have it.” Ramirez
told Concepcion that “we are going to move towards suspen-
sion. Ramirez provided a July 17 letter to Concepcion that set
forth the previous requests and deadlines for the additional
documentation, the rejection of the Puerto Rican birth certifi-
cate, and the July 17 deadline. The letter then stated,
We have consistently communicated to you that your Decem-
ber 17, 2003 Puerto Rican birth certificate is not a valid doc-
ument for purposes of confirming your identity, and that you
are obligated to provide us with some form of valid documen-
tation to remain employed with the Company. We provided
you the time and resources to take care of this issue by today.
As of today, you have not provided us any documentation to
confirm your identity, or even any information to suggest that
you have attempted to begin the process of obtaining a new
birth certificate. Accordingly, you have not fulfilled your ob-
ligation to provide the requested proof of your identity. For
this reason, you are being suspended indefinitely without pay
while the Company reviews this matter further. Your badge
has been deactivated, and you are not authorized to be on
Company property effective immediately.
We will make a final determination on the status of your em-
ployment at some point in the near future. If you do obtain
and provide proper documentation to validate your identity
before a final decision on your employment status is made,
the Company will appropriately consider such documentation
if you supply it to us.
As of the time of the hearing in this matter, Concepcion re-
mained suspended.
Analysis
a. Surveillance
The General Counsel alleges that Ramirez’s Facebook
searches in conjunction with the union radio show constituted
unlawful surveillance in violation of Section 8(a)(1) of the Act.
Unlawful surveillance occurs when an employer’s agent
takes intentional action to observe or learn of employee union
activity. Astro Shapes, Inc., 317 NLRB 1132, 1133 (1995)
(unlawful surveillance for supervisor to park in tavern parking
lot where union meeting was scheduled because he was curious
how many employees would show up); Dadco Fashions, 243
NLRB 1193, 1198-1199 (1979) (unlawful surveillance for su-
pervisor purposely to drive by union’s roadside park highway
meeting “because she was curious”), enfd. 632 F.2d 493 (5th
Cir. 1980). See in contrast, Milum Textile Services, 357 NLRB
2047, 2072 (2011) (no unlawful surveillance where supervisor
“in the course of her normal routine” regularly ate lunch parked
on street next to the facility where she observed employees
engaging in prounion activities) and Valmont Industries, 328
NLRB 309, 318 (1999) (no violation where supervisor’s pres-
ence at motel while union meeting was being conducted there
was coincidental and unrelated to union meeting).
In this case, prompted by a supervisor’s report that Sonja
Guzman “and another lady named Diana” had appeared on a
radio show devoted to “union activity at our plant,” Ramirez
seemingly dropped everything upon arriving at work the morn-
ing of June 16, to investigate this matter. She searched (unsuc-
cessfully) for the archived union radio show and then went
further and investigated who the person was who “liked” (i.e.,
supported) the union radio show. When Ramirez did this, she
was searching for information on union supporters and activi-
ties. In this regard she intensively searched the Facebook page,
photos, and friends of the union supporter identified as Yazz-
min Trujillo, and determined that, in her view, Trujillo was “1st
shift” “union supporter” Diana Concepcion.40
Although carried out with a more modern methods, this is no
different than the “curious” supervisor who, upon hearing that
there would be union activity at a roadside park or a local tav-
ern, takes a ride over there to see what he or she could see.
Dadco Fashions, 243 NLRB at 1198-1199; Astro Shapes, Inc.,
317 NLRB at 1133.
The Respondent argues that Ramirez merely consumed pub-
licly available media, but that is beside the point. Just as it is
not necessary for a supervisor to sneak into a private union
meeting in order to unlawfully surveil employees, it was not
necessary for Ramirez to enter unauthorized or break through
password-protected websites in order to be engaged in unlawful
surveillance. Rather, as with supervisors who unlawfully sur-

40 Ramirez testified that she investigated Trujillo’s Facebook page
because she “was curious to see who Yazzmin Trujillo was.” But she
was curious precisely because this individual had expressed support (a
“like”) for a union-themed radio show about the AP plant and union
drive. She wanted to know more about the union supporters.
ADVANCEDPIERRE FOODS, INC. 25
veil by intentionally seeking out protected and concerted activi-
ty in the physical world to view, Ramirez violated the Act by
seeking out information on the internet about the employees’
union activity on the radio and then by investigating who liked
it.
The Respondent also argues that Ramirez’ “curiosity” is
immune from sanction because she did not recognize the name
Yazzmin Trujillo as an employee. This is a meritless argument.
Indeed, the contention (R. Br. at 33) that “Ramirez’s intent was
to determine who Trujillo was and why a non-employee would
be interacted in AP”—and not to determine if Trujillo support-
ed the Union—strikes me as sophistry. Ramirez knew Trujillo
supported the Union and its efforts at AP—that is precisely
why she investigated Trujillo. She was looking for information
about Trujillo and her connection to the union and other union
supporters. In any event, Ramirez quickly formed the belief
that she was viewing an employee’s Facebook page, one she
did not stumble upon but, rather, arrived at during an investiga-
tion of a person expressing support for the union radio show
that was about the union drive at AP. This did not deter her
search. She pressed on. I note that if a supervisor heads to a
union meeting to investigate who is there, it is hardly lawful
surveillance until the moment she spies an employee she
knows. And the subsequent surveillance is not immune from
condemnation once the supervisor spies someone she believes
to be an employee. Ramirez’s entire investigation—and partic-
ularly—her admitted effort to glean information about Trujillo
and her connection to the AP workforce, constituted unlawful
surveillance.41
Finally I note that any doubt about the reasonable likelihood
of the surveillance to coerce employees is removed by the Re-
spondent’s disclosure to Concepcion of the surveillance in
which Ramirez engaged. While “it has long been held that
surveillance may be unlawful regardless of whether the em-
ployees knew of it” (National Steel and Shipbuilding Co., 324
NLRB 499, 504 fn. 20 (1997) (citing, NLRB v. Grower-Shipper
Vegetable Ass’n, 122 F.2d 368, 376 (9th Cir. 1941) and Bethle-
hem Steel Co., 120 F.2d 641, 647 (D.C. Cir. 1941)); Starbrite
Furniture Corp., 226 NLRB 507, 510 (1976)), in this case
Concepcion was told by the Respondent that it was the surveil-
lance of the union radio show and the person who “liked” it that
resulted in the further adverse action against her. The
knowledge that the Employer engaged in this surveillance
would, at a minimum, be reasonably likely to interfere with

41 The cases cited by the Respondent, which involve an employer’s
viewing of union activity openly conducted on its own property and
observed incidental to normal operations or “legitimate proprietary
prerogative[s],” are flatly inapposite to the circumstances presented
here. See, e.g., Chemtronics, Inc., 236 NLRB 178, 178 (1978) (no
surveillance violation where employer (lawfully) interrupted meeting
conducted on his parking lot to tell union officials to leave premises);
Hoschton Garment Co., 279 NLRB 565, 566–567 (1986) (no surveil-
lance violation where employer attempted to eject trespassing union
representatives from its property); Harry M. Stevens Services, 277
NLRB 276 (1985) (no unlawful surveillance where the employer’s
“standard manner of supervising its employees” working concessions at
Houston Astrodome involved “mov[ing] throughout facility” and
incidental to this a supervisor witnessed a card solicitation).
employee willingness to participate in union activities and ex-
press support for the union.
b. The demand for documentation of identity and the
suspension of Diana Concepcion
Having found that Ramirez’s investigation into the La Mega
radio show and its Facebook supporter constituted unlawful
surveillance, I now turn to the different issue of whether the
Respondent’s demands of Concepcion for further identification,
and her suspension when she failed to provide it, constitute
unlawful action.
The General Counsel argues (GC Br. at 36) that the demand
for documentation and the suspension were unlawfully moti-
vated retaliation for Concepcion’s union activity. As discussed
above, the Supreme Court-approved analysis in 8(a)(1) and (3)
cases turning on employer motivation was established in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management Corp., 462 U.S. 393, 395, (1983)
(approving Wright Line analysis).
While I have applied Wright Line earlier in this decision, a
more extended treatment of its rationale and operation are use-
ful in analyzing these alleged violations.
The Wright Line test, while applicable to pretext cases in
which the employer has no legitimate motive for the action
taken against an employee, was chiefly adopted as a mode of
analysis in the “dual motive situation where the legitimate in-
terests of the parties most plainly conflict.” Id. at 1083:
In such cases, the discipline decision involves two factors.
The first is a legitimate business reason. The second reason,
however, is not a legitimate business reason but is instead the
employer’s reaction to its employees’ engaging in union or
other protected activities. This latter motive, of course, runs
afoul of Section 8(a)(3) of the Act. [Id.].
In Wright Line, the Board adopted a mode of analysis for ex-
amining causality in dual motive cases under the Act based on
the analysis used by the Supreme Court in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274
(1977). In Mt. Healthy—a non-NLRA case—the Supreme
Court considered a public school district’s refusal to renew a
teacher’s contract. There were two reasons: one, a legitimate
reason, involving the teacher’s use of obscenity in the school
cafeteria, but also, a second, illegitimate reason, involving con-
stitutionally-protected conduct when the teacher conveyed
school information to a local radio station. The lower court
reasoned that since protected activity played a substantial part
in the school board’s decision, its refusal to renew the contract
was unlawful. The Supreme Court reversed, ruling that “the
school board must be given an opportunity to establish that its
decision not to renew would have been the same if the protect-
ed activity had not occurred.” Wright Line, supra at 1086. The
Supreme Court in Mt. Healthy, 429 U.S. at 285–286, reasoned
that:
A rule of causation which focuses solely on whether protected
conduct played a part, "substantial" or otherwise, in a decision
not to rehire, could place an employee in a better position as a
result of the exercise of constitutionally protected conduct
than he would have occupied had he done nothing. The diffi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
culty with the rule enunciated by the District Court is that it
would require reinstatement in cases where a dramatic and
perhaps abrasive incident is inevitably on the minds of those
responsible for the decision to rehire, and does indeed play a
part in that decision—even if the same decision would have
been reached had the incident not occurred. The constitutional
principle at stake is sufficiently vindicated if such an employ-
ee is placed in no worse a position than if he had not engaged
in the conduct.
With this background, the Board in Wright Line determined
that in dual motive cases under the Act, the General Counsel
carries his initial burden by persuading by a preponderance of
the evidence that employee protected conduct was a motivating
factor (in whole or in part) for the employer’s adverse employ-
ment action. Wright Line, supra at 1089. Under the Wright
Line framework, as subsequently developed by the Board, the
elements required in order for the General Counsel to satisfy its
burden to show that an employee’s protected activity was a
motivating factor in an employer’s adverse action, “are union
or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer.” Adams
& Associates, Inc., 363 NLRB No. 193, slip op. at 6 (2016);
Libertyville Toyota, 360 NLRB No. 141, slip op. at 4 (2014);
enfd. 801 F.3d 767 (7th Cir. 2015).
Such showing proves a violation of the Act subject to the fol-
lowing affirmative defense: the employer, even if it fails to
meet or neutralize the General Counsel's showing, can avoid
the finding that it violated the Act by “demonstrat[ing] that the
same action would have taken place in the absence of the pro-
tected conduct.” Wright Line, supra at 1089. As developed by
the Board, for the employer to meet its Wright Line burden, it is
not sufficient for the employer simply to produce a legitimate
basis for the adverse employment action or to show that the
legitimate reason factored into its decision. T. Steele Construc-
tion, Inc., 348 NLRB 1173, 1184 (2006). Rather, it “must per-
suade that the action would have taken place absent protected
conduct by a preponderance of the evidence.” Weldun Int’l,
321 NLRB 733 (1996) (internal quotations omitted), enfd. in
relevant part 165 F.3d 28 (6th Cir. 1998). See NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983) (approving
Wright Line and rejecting employer's claim that its burden in
making out an affirmative defense is met by demonstration of a
legitimate basis for the adverse employment action).
If the employer fails to prove that the same action would
have taken place in the absence of protected activity, then the
General Counsel’s initial showing that unlawful motive was a
part of the reason for the adverse action proves the violation. In
such cases, the Board will not weigh the relative quantity or
force of the unlawful motive compared to the lawful motive:
the violation is established if the employer fails to prove it
would have taken the action in the absence of protected activi-
ty.42

42 As the Board explained in Wright Line:
in those instances where, after all the evidence has been submitted, the
employer has been unable to carry its burden, we will not seek to
quantitatively analyze the effect of the unlawful cause once it has been
Applying Wright Line to the issues at hand, AP’s demand for
documentation from and suspension of Concepcion, the Gen-
eral Counsel’s prima facie case is easily met. Concepcion was
an early, active, and open supporter of the union campaign, to
the extent of appearing on the radio show that prompted
Ramirez’s surveillance. As I have found, the Respondent was
aware that Concepcion was a union supporter. And in terms of
Wright Line analysis, one must include in that the Respondent’s
suspicion—whether correct or not—that Diana Concepcion
(and not Yazzmin Trujillo—had “liked” the La Mega Facebook
posting about the union radio broadcast.43
Finally, the element of union animus on the part of the em-
ployer is established not only by the unlawful surveillance, but
by the maintenance and enforcement of the unlawful solicita-
tion/ distribution policy, the interrogation of Cotto, the disci-
plining of her and Guzman, as well as Fox, and the unlawful
clipboard search.
I note that in evaluating the element of union animus, the
Board holds that it is unnecessary for the General Counsel to
make a “showing of a particularized motivating animus towards
the employee’s own protected activity or to further demonstrate
some additional, undefined ‘nexus’ between the employee’s
protected activity and the adverse action.” Libertyville Toyota,
360 NLRB No. 141, slip op. at 4, fn. 10; Adams & Associates,
Inc., 363 NLRB No. 193, slip op. at 6 (“we emphasize that such
a showing is not required”). However, in this case, it is worth
pointing out that each indicia of the Respondent’s demonstrated
animus is part of an overall response to information it received
(or solicited) about the union drive. And specifically with re-
gard to the investigation of Concepcion, this antiunion vigi-
lance accounts for the ardor with which Ramirez plunged into
the investigation of the union radio broadcast and then into the
investigation of Yazzmin Trujillo’s Facebook. By 8:18 a.m.,
just a few minutes after arriving at work, she wrote Aardema, “I
have news to share.” There is an enthusiasm that is hard to
miss in her report to Aardema explaining how she got to Trujil-
lo’s Facebook page, and that “the picture shows who I know as
Diana Concepcion,” who “is on 1st shift here at AP and is a
union supporter.”
Thus, under Wright Line, the General Counsel has demon-
strated that antiunion animus was a motivating factor in Con-
cepcion’s suspension and the demand for documentation, and
he has proven a violation of the Act, subject to the Respond-
ent’s defense. The Respondent can avoid a finding that it vio-
lated the Act by (and only by) demonstrating by a preponder-
ance of the evidence that the same action would have taken

found. It is enough that the employees' protected activities are causal-
ly related to the employer action which is the basis of the complaint.
Whether that "cause" was the straw that broke the camel's back or a
bullet between the eyes, if it were enough to determine events, it is
enough to come within the proscription of the Act.
Wright Line, supra at 1089 fn. 14.
43 It is well settled that adverse action motivated by a mistaken be-
lief that an employee engaged in union and/or protected concerted
activity is violative of Section 8(a)(1) and/or (3) of the Act. Salisbury
Hotel, 283 NLRB 685, 686 (1987); Metropolitan Orthopedic Associ-
ates, 237 NLRB 427, 429 (1978).
ADVANCEDPIERRE FOODS, INC. 27
place even in the absence of the protected conduct. Boothwyn
Fire Co. No. 1, 363 NLRB No. 191, slip op. at 7 (2016);
Willamette Industries, 341 NLRB 560, 563 (2004); Wright
Line, supra.
The Respondent contends just that. The Respondent main-
tains that when it found the Facebook page, it took action to
require identification and then to suspend Concepcion when she
did not provide it, and that it would have taken these actions
even in the absence of her union activity. But undeniably,
Concepcion’s “misconduct” warranting suspension was the
failure to provide the requested documentation, a requirement
that itself was the result of Ramirez’ unlawful surveillance.
The problem with the Respondent’s defense is that in the cir-
cumstances presented here, Wright Line undercuts the defense
before it begins. Thus, the unavoidable difficulty with the Re-
spondent’s argument is that in the absence of its unlawful sur-
veillance, by its own account it would not have taken any ac-
tions against Concepcion. Wright Line is very clear that once,
as here, the General Counsel has proven that animus was a
motivating factor in the adverse action, to avoid liability, the
employer must “demonstrate that the same action would have
taken place in the absence of the protected conduct.” Wright
Line, supra at 1089. In this case the Respondent’s unlawful
surveillance precludes such a showing. For in the absence of
Concepcion and her coworkers’ protected activity—had she not
spoke out for the union on the radio show, and had she not
(rightfully or wrongfully been suspected by AP of having)
demonstrated support for the union broadcast by “liking” it on
Facebook, AP would not—based on its own explanation—have
taken any action against Concepcion. It would not have been
demanding documentation, and it would not have suspended
her for a failure to comply with that demand. As the Board
explained in Supershuttle of Orange County, Inc., 339 NLRB 1,
2 (2003), about a discharge based on an unlawfully undertaken
investigation of the employee:
As the judge found, the General Counsel established that anti-
union animus was a motivating factor in Petrichella’s dis-
charge. The burden then, shifted to the Respondent to prove
that it would have discharged Petrichella even in the absence
of his union activities. Given the Respondent’s unlawful mo-
tivation for investigating Petrichella, the Respondent has cre-
ated its own barrier to satisfying its burden of proof. [Em-
phasis added.]
Supershuttle of Orange County is instructive. In that case,
the employer contended that it discharged an employee for
misconduct (lying) occurring during an unlawfully motivated
disciplinary investigation. The Board made clear that the un-
lawfully motivated impetus for the investigation (in which the
alleged lying occurred) fatally undercut the Respondent’s de-
fense. 339 NLRB at 3. Here, Ramirez’ failure to supply the
demanded documentation provides the stated basis for her sus-
pension. Yet, as in Supershuttle, this failure to comply with the
management directives “did not exist independently of the un-
lawfully motivated investigation.” As in Supershuttle, 339
NLRB at 3, in the instant case,
there is a clear and direct connection between the employer’s
unlawful conduct and the reason for the discipline. . . . The
common principle is that employers should not be permitted
to take advantage of their unlawful actions, even if employees
may have engaged in conduct that—in other circumstances—
might justify discipline. These cases cannot easily be recon-
ciled with the notion that the existence of a potential reason
for discharge will be sufficient to justify the actual discharge,
regardless of the employer’s own unlawful conduct and its
causal connection to the discharge.

In considering this case, it is important to recognize that
there was no demonstrated preexisting wrongdoing by Concep-
cion that prompted the demand for documentation or the sus-
pension. Other than her protected activity, there was only an
asserted suspicion of her identity, based on a Facebook page.
She was not suspended for maintaining a Facebook page with
another’s name. She was suspended for failing to provide doc-
umentation requested as part of the investigation into her identi-
ty. Thus, this case bears no relationship to the line of cases,
distinguished by Supershuttle, where an employer unlawfully
denies an employee the right to union representation during an
investigatory interview but the Board still permits the employee
to be disciplined for the preexisting misconduct that prompted
the interview, “because there is an insufficient connection be-
tween the procedural unfair labor practice committed and the
substantive reason for the discipline.” Supershuttle, supra at 3,
citing to Taracorp, Inc., 273 NLRB 221 (1984). To the contra-
ry, this case is like the line of Board cases “holding that em-
ployee misconduct discovered during an investigation under-
taken because of an employee’s protected activity does not
render a discharge lawful.” Kidde, Inc., 294 NLRB 840, 840
fn. 3 (1989) (and cases cited therein). Here, while there was no
misconduct per se by Concepcion, the point is that she was
suspended—not for maintaining a Facebook page, not for
providing false documentation, and not for any other miscon-
duct on her part that preexisted the investigation into her status.
Rather, she was suspended for not complying with directives to
produce documentation during the investigation—that is the
“misconduct” for which she was suspended, and both the de-
mand for documentation and the suspension “did not exist in-
dependently of the unlawfully motivated investigation.” Su-
pershuttle, supra. Thus, as in Supershuttle, “the [suspension]
was not based on [preexisting] misconduct uncovered during
the investigation, but rather on misconduct triggered by and
elicited during the investigation.” Id. (bracketing added, em-
phasis in original].
I would add that the reliance on AP’s unlawful actions—in
this case surveillance of protected activity—to essentially bar
AP from proving that its adverse actions against Concepcion
would have been taken in the absence of protected activity is
not a technicality, but rather goes to the heart of Wright Line’s
balancing test. As the Supreme Court explained in Mt. Healthy,
the Court’s test avoids a situation that
could place an employee in a better position as a result of the
exercise of [ ] protected conduct than he would have occu-
pied had he done nothing. . . . The . . . principle at stake is
sufficiently vindicated if such an employee is placed in no
worse a position than if he had not engaged in the conduct.
Mt. Healthy, 429 U.S. at 285–286 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Here, pursuant to the Employer’s rationale for adverse ac-
tion, due to AP’s unlawful surveillance of protected activity,
Concepcion has been placed in a worse position precisely be-
cause and only because of her and her coworkers’ protected
conduct (actual and suspected). To rearrange the Mt. Healthy
articulation of the issue, but to the same point: there is no
avoiding the conclusion that acceptance of the Employer’s
defense would lead directly to Concepcion being in “worse a
position than if [s]he had not engaged in the [protected] con-
duct.” Due to AP’s unlawful surveillance, Concepcion is in
“worse a position” “as a result of the exercise of protected con-
duct than [s]he would have occupied had [s]he done nothing.”
Finally, it is worth pointing out that the policy implications
for accepting the Employer’s defense would be staggering and
profound. For instance, with the same rationale, the Respond-
ent could target all known union supporters for drug tests and
then lawfully discharge any and all that showed results calling
for discharge under an otherwise legitimate policy. Such a
scheme would not pass muster under the Act. See McClain of
Georgia, Inc., 322 NLRB 367, 377 (1996) (discipline imposed
as a result of positive drug results found after unlawful discrim-
inatorily motivated change in drug policy is unlawful); enfd.
138 F.3d 1418 (11th Cir. 1998); see also Kidde, Inc., 294
NLRB at 840 fn. 3, and cases cited therein.44
Thus, even assuming AP had some valid motives for requir-
ing documentation from Concepcion, and suspending her when
she failed to produce it, the Respondent cannot prove it would
have acted on those valid motives in the absence of Concepcion
and her coworkers’ protected activity (and, in the case of the
“like,” the Employer’s belief of Concepcion’s protected activi-
ty). As in Supershuttle of Orange County, “Given the Re-
spondent’s unlawful motivation for investigating [the employ-
ees], the Respondent has created its own barrier to satisfying its
burden of proof.” 339 NLRB at 2. In this situation, the Gen-
eral Counsel’s demonstrated prima facie proof of unlawful
motive for the documentation and suspension proves the viola-
tion without regard to any weighing of good and bad motive.
Wright Line, supra at 1089, fn. 14.45

44 I note that Anheuser-Busch, Inc., 351 NLRB 644 (2007), review
denied, 303 Fed. Appx. 899 (D.C. Cir. 2008), is not to the contrary. In
that case, a Board majority found that employees disciplined for “un-
contested misconduct . . . . warranting discipline,” proven through use
of a camera unilaterally installed in violation of Section 8(a)(5), could
not be made whole (reinstated or provided backpay). The Board found
that as a remedial matter, the employees’ discipline was “for just cause”
under Section 10(c) of the Act. Unlike the instant case, Anheuser-
Busch merely presented a remedial question for an 8(a)(5) violation
affecting employees who had engaged in proven misconduct warranting
discipline. The only issue was the appropriate remedy for the underly-
ing 8(a)(5) violation. Here, very unlike Anheuser-Busch, the issue at
hand is not remedial. Rather the contention and the finding is that the
discipline (and demand for documentation) independently constituted
discriminatory animus-based violations of the Act. Moreover, even in
terms of remedy, there simply is no proven misconduct (apart from a
failure to produce documentation) by Concepcion—the Respondent’s
suspicion hardly amounts to “uncontested misconduct warranting disci-
pline.”
45 The matter ends there, but for the sake of completeness I would
add that the suggestion in the Respondent’s brief (R. Br. at 35) that
V. ASSESSMENT OF ATTENDANCE POINT AGAINST JESSENIA
MALDONADO (COMPLAINT PARAGRAPH 5 IN
CASE 09–CA–162392)
Facts
AP maintains an attendance policy pursuant to which one
point is assessed for each absence as long as the employee calls
in the absence up to 30 minutes into their scheduled work shift.
Being late to work or leaving early will result in assessment of
½ a point.
When an employee accumulates six points they receive a
verbal warning. At eight points they receive a written warning.
At ten points they receive a final warning. Beyond ten points is
grounds for possible termination. Points accumulate on a roll-
ing calendar year basis. In other words, an assessed point “falls
off” one year after its assessment.
An employee reports that they will be absent by calling an
800 number designated for this purpose. The employee calls in
and leaves a message with their name and supervisor, and states
that they will not be in. The employee can ask at that time that
the absence be attributed to PTO/vacation. This is the exclu-
sive method for calling in absences that are not preapproved.
These calls are made to a voice-recording system. There is not

Ramirez’s Facebook surveillance triggered “a legal obligation to con-
firm Concepcion’s identity” is unsupported. Much of the claim of the
“reasonableness”—by which the Respondent means a nondiscriminato-
ry valid motive—for the Respondent’s actions rests on a suggestion that
by failing to investigate the matter, the Respondent risked liability
under the Immigration Reform and Control Act of 1986 ("IRCA"). But
this has not been demonstrated. The Respondent sums up the “evi-
dence” against Concepcion (R. Br. at 34–35) as follows: (1) there was
one or more pictures of (someone assumed to be) Concepcion on Tru-
jillo’s Facebook page, (2) Trujillo refers to others on her Facebook
page who have the name Trujillo as relatives (e.g. brother, aunt, dad),
and (3) Concepcion’s AP benefits file lists a Trujillo as her beneficiary,
sharing her home address. IRCA makes it unlawful to continue to
employ an alien “knowing the alien is (or has become) an unauthorized
alien with respect to such employment.” 8 U.S.C. § 1324a(a)(2). See 8
CFR § 274a.1(l) (“The term knowing includes not only actual
knowledge but also knowledge which may fairly be inferred through
notice of certain facts and circumstances which would lead a person,
through the exercise of reasonable care, to know about a certain condi-
tion”). However, the Respondent’s brief does not and cannot cite to
any case remotely suggesting that a Facebook page or beneficiary’s last
name provides an employer with knowledge, actual or fairly inferred,
that the employee is unauthorized for employment. This standard re-
quires “positive information” that the employee is undocumented. See,
Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554-555 (9th Cir. 1991)
(constructive knowledge requires “positive information” and is “spar-
ingly applied”). The point, of course, is not that it could not be the case
that Concepcion is unauthorized. The point is that Ramirez’s and AP’s
enthusiastic plunge into the issue was, at best, wholly discretionary, and
not required by any authority. Ramirez testified that in two instances in
2012, Facebook discrepancies led her to undertake similar requests for
documentation and execute adverse employment actions. However, the
record contains no evidence of the circumstances in which the Face-
book issue came to Ramirez’s attention in those previous matters, the
manner in which the search was carried out, or the import of what was
found. It is, of course, Ramirez’s motivation for this incident that is
squarely at issue here, and whether it would have occurred in the ab-
sence of union activity. It would not have.
ADVANCEDPIERRE FOODS, INC. 29
a live person who answers. AP has employees with the title
“manufacturing coordinator” who are assigned to listen to the
messages for each shift. (Although the evidence shows that in
some cases a supervisor might listen to messages). There is
one manufacturing coordinator for each shift. That employee
calls into the 800 number and uses a passcode to listen to the
voicemails left for that shift. The manufacturing coordinators
write down the time of the calls, the name of the employee
calling off or calling in late, their shift, and if they want to be
paid PTO or vacation for the absence. The messages are delet-
ed immediately once they are heard.
This written record is called the “call-in sheet.” At the end
of the third shift, the call-in sheet is provided to the “timekeep-
er” who keeps the attendance records for AP, and assigns oc-
currence points, vacation and PTO.
According to Ramirez, AP averages about 10-15 call-ins a
day, but on a bad weather day that number can reach upwards
of 50.
Employee Ni Phan is the manufacturing coordinator who lis-
tens to the answering machine for the second shift. Other em-
ployees perform this job for the first and third shift. Barbie T.
Myer is the timekeeper.
Some time the week of July 13, 2015, Ramirez found “a
stack” of “call-off/strike script[s],” in the women’s locker room
which had the following typed in English and Spanish:
I am not reporting to work today to protest the Company’s un-
fair labor practices. I will unconditionally return to work on
my next scheduled shift.
Ramirez learned that this strike was being planned for Friday
July 17. Anticipating this, and with AP having “done some
research,” and “learn[ing] that we shouldn’t levy an occurrence
point for folks calling in with this script,” Ramirez asked the
manufacturing coordinators “to put a star or an asterisk next to
each name of any person who used this script when they called
in on the 17th.”
For the day of July 17th, the call-in sheet lists 27 employees
who “won’t be in” (WBI). Nine have an asterisk next to their
name indicating that they told the manufacturing coordinator
they were part of the strike. These employees with the asterisk
by their name were not assessed an attendance point by the
timekeeper. The remaining WBI employees were given an at-
tendance point. The nine who were marked as calling in for the
strike and who did not receive an attendance point included
known union supporters such as Concepcion, Cotto, Sonja
Guzman, and Vianey Guzman.
Second shift employee Jessenia Maldonado testified that she
called in and left a message that she would be involved in the
strike, using the language of the script. However, while the
call-in sheet indicates that Maldonado called off work at 3:36
p.m., there is no asterisk by her name. Maldonado was assessed
a point. Manufacturing Coordinator Ni Phan’s initials indicate
that she was the manufacturing coordinator who recorded the
Maldonado absence
Maldonado, who has worked at AP since 2010, is currently
employed by AP as a “cashier.” Maldonado was active in the
union campaign. For instance, she was involved in distributing
union flyers in the AP parking lot to co-workers and her photo-
graph was included in photos on some union flyers. Maldona-
do testified that she learned of the strike on July 16, and re-
ceived a copy of the script from a union organizer. She could
not remember the time she called, but it was after 1 p.m. Mal-
donado was scheduled to work at 4 p.m.46 Maldonado testified
that when she called she left her message by reading her script
in Spanish. Maldonado testified that she called three times,
which she stated, was typical for her.
As I ruled at trial (Tr. 1107–1108), while the call-in sheet,
generally, is admissible as direct and non-hearsay evidence
pursuant to F.R.E. 803(6) (record of a regularly conducted ac-
tivity), the asterisks, devised as a one-time tool by AP, are not
part of “regular practice of the activity” (F.R.E. 803(6)(C))
associated with maintaining the call-in sheets. We cannot at-
tribute to the asterisks the reliability on which the 803(6) hear-
say exception is premised. This was a one-time notation, which
the maintenance coordinators were to utilize on this one partic-
ular day. See, Steven Goode & Olin Guy Wellborn III, Court-
room Handbook on Federal Evidence, Chapter 5, Evidence
Rules with Authors’ Commentary, Article VIII, Authors’
Comments (4) (2016) (“The second element [of Rule 803(6)],
routineness, goes to the heart of the theory of trustworthiness of
business records. Reliability does not attach to a statement just
because a person engaged in a business activity writes it down;
it is essential to any claim of reliability that the statement be of
a type that persons engaged in the activity record routinely”).
This is particularly true with regard to Ni Phan, the coordina-
tor who took and recorded information about Maldonado’s
message, as she does not speak Spanish, the language in which
Maldonado’s message was left. Ramirez testified that the pro-
cedure in such cases was for the coordinator to get a Spanish
speaker on the shift, either management or an employee, to
translate the message. However, Ramirez did not know and the
record does not speak to who assisted Phan. Ni Phan did not
testify, for reasons not explained in the record.
Thus, the state of the record is that Maldonado’s testimony is
disputed only by hearsay evidence in the form of the lack of an
asterisk, omitted by an employee using a one-time, new mark-
ing procedure, who did not speak the language at issue, and
who did not testify about what she heard or what procedure she
used to mark the asterisks or even to learn what the Spanish
message said. I note that Ni Phan did not mark any asterisks
next to the four call-offs she recorded. This could mean noth-
ing, of course. But it is also consistent with someone who did
not understand or know that she was supposed to use asterisks.
In the absence of Ni Phan’s testimony, I credit Maldonado’s
undisputed testimony.47
Maldonado testified that the following week she went to
Ramirez’s office to ask how many points she had accumulated.

46 Ramirez indicated that Maldonado would have been scheduled to
begin at 4:30 p.m. I do not resolve that immaterial dispute.
47 Although, I do not credit her claim that she called in three times.
It did not have the ring of truth, and it seems unlikely for her to do that,
and unlikely that it would not be referenced in some way on the call-in
sheet. In any event, while it strikes me as an overzealous effort to
burnish the record by Maldonado, and while it is a factor weighing
against her credibility, on balance I believe her undisputed testimony
that she called in and left the strike message using the script.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
When Ramirez told her seven, Maldonado said, “why seven? I
only have six.” Maldonado asked when her last point was re-
ceived. Ramirez said July 17th. Maldonado asked again, “[t]he
last point was given to me on July 17th?” Ramirez said yes.
Maldonado did not mention the strike or protest, but said,
“Okay. Thank you very much.” Then she left.48
Analysis
The General Counsel alleges that the Respondent violated
the Act by assessing Maldonado an attendance point for partic-
ipation in the one-day strike on July 17.
The General Counsel argues (GC Br. at 46) and the Re-
spondent (R. Br. at 38–40) does not dispute that the one-day
“call-off” strike engaged in by some of the employees on July
17 was protected activity. Indeed, the Respondent anticipated
the strike, and instructed its manufacturing coordinators to note
those employees who called in to say they were striking and
then instructed the timekeeper not to assess attendance points
against such employees. According to the call-in sheets, nine
of 27 employees who called saying they wouldn’t be in that day
had an asterisk next to their name, indicating that they had an-
nounced they were part of the strike. They were not assessed
an attendance point by the Respondent.
As I have found, Maldonado also called in and announced to
the employer that her absence from work was because she was
participating in the strike. Given this, and although I am in-
clined to accept that the Respondent assessed Maldonado with
an assessment point for no reason other than that an asterisk
was not placed by her name on the call-in sheet, the violation of
Section 8(a)(1) of the Act is complete.
Maldonado was engaged in protected and concerted activity
when she called in, read the script, and joined in the strike. In
this context, as the Board recognized in Ideal Dyeing & Finish-
ing Co., 300 NLRB 303, 303 (1990), enfd. without op. 956
F.2d 1167 (9th Cir. 1992), an employer’s mistaken (albeit good
faith) belief that an employee engaged in misconduct is not a
defense to a finding that an employee was disciplined (in that
case discharged) for engaging in protected activity. Notably, in
Ideal Dyeing, the Board rejected the employer’s argument that
the discipline was lawful where there was no showing that the
employer was aware that the employee was engaged in protect-
ed activity (Id.), citing the Supreme Court’s observation that
“[a] protected activity acquires a precarious status if innocent
employees can be discharged for engaging in it, even though
the employer acts in good faith.” NLRB v. Burnup & Sims, 379

48 Ramirez denied that this happened. She did not recall any con-
versation with Maldonado shortly after July 17, about getting a point.
The dispute is not particularly material. There is no dispute that Mal-
donado was assessed a point. If I have to choose, I would credit Mal-
donado. I think she testified credibly, and the short amicable conversa-
tion would have been far more significant to her than to Ramirez.
Maldonado did not argue with Ramirez or mention the strike. She testi-
fied that she “didn’t want to argue” and figured it was “their word
against ours.” I find that to be believable conduct for an employee in
her situation, given the circumstances. But it also might account for
why Ramirez does not remember the encounter. From her end it was a
brief, noncontentious, uneventful, middle-of-the workday question
from an employee.
U.S. 21, 23 (1964); see also, Keco Industries, 306 NLRB 15, 17
(1992) (“Where an employee is disciplined for having engaged
in misconduct in the course of union activity, the employer’s
honest belief that the activity was unprotected is not a defense
if, in fact, the misconduct did not occur”).
In this case, Maldonado was disciplined (i.e., assessed an at-
tendance point) on the false belief by the Respondent that she
had called off for a non-protected and punishable reason for
which a point could be assessed. But the Respondent’s belief
was inaccurate. And the fact that protected activity was occur-
ring this day, and was being manifest through call-ins asserting
it, was, indeed, known to the Respondent. Thus, Maldonado
was engaged in the type of activity that the Respondent knew,
on that day, was being utilized by some employees for protect-
ed and concerted activity. Under these circumstances, it must
bear the cost of its mistake. For without regard to the Respond-
ent’s motive, to find otherwise would cause employees to rea-
sonably fear that continued participation in union and protected
and concerted activities would put them at risk of mistakenly
being punished for this participation. Ideal Dyeing, supra. I
find that the Respondent violated Section 8(a)(1), as alleged.49
VI. THE WAGE INCREASE AND INFORMING EMPLOYEES THAT
WAGES ARE PERSONAL AND CONFIDENTIAL AND SHOULD NOT BE
SHARED (COMPLAINT PARAGRAPHS 5(J) AND (L))
Facts
Susan Brunker is AP’s direct of compensation, benefits, and
HR. She has held this position since she started working for
AP in June 2014. Her office is in AP’s Blue Ash, Ohio office,
which is approximately ten minutes away from AP’s Cincinnati
facility. Brunker has responsibility for the compensation and
benefit programs and plans and HR information systems, for all
of the AP locations, which include approximately 4000 em-
ployees.
Brunker testified that when she was hired in June 2014, there
were several issues that needed to be addressed at AP. One of
them was compensation. Wages were out of line with the mar-
ket, as indicated by high turnover, particularly in the “protein”
plants, and among those, particularly at the Enid, Oklahoma
location. (The protein plants, which refers to the product mix,
include a plant in Portland, four locations in Enid, Oklahoma,
plus a distribution center, and the Cincinnati location.) Brunk-
er’s predecessor had told her that compensation had not been
reviewed in many years for the protein plants.
To begin the wage restructuring process, Brunker worked
with plant leadership and HR directors to become familiar with
operations, the jobs, and market data. A plan was conceived to
do a market study and when that was done, to compare the
market to current pay grades. From there, Brunker planned to
look at restructuring the pay program—AP had acquired many
of the plants and they were all operating under their own histor-
ical pay practices. Brunker wanted to consolidate pay pro-

49 Given the 8(a)(1) finding, it is unnecessary to decide whether, as
alleged in the complaint, the discipline also violates Section 8(a)(3) of
the Act, as it would not materially affect the remedy. Ideal Dyeing, 300
NLRB 303, 303 fn. 5; Kingsbury, Inc., 355 NLRB 1195, 1195 (2010).
I note, however, that on brief the General Counsel does not pursue an
8(a)(3) theory of violation.
ADVANCEDPIERRE FOODS, INC. 31
grams across the entire company. Brunker was broadly dis-
cussing these plans and goals in teleconferences with corporate
and other plant leadership in the summer and fall of 2014.
However, other priorities meant that these wage plans were
“backburnered.”50
According to Brunker, the wage issue was returned to in “I
would say February of 2015.” Brunker’s February 4, 2015
email to Chernock in Cincinnati, and to her counterpart for the
Enid, Oklahoma plants, explained that with other matters near-
ing completion,
I would like to fast track the evaluation of wages for the
plants. I will guide the process but will count on you for the
‘plant’ perspective. Separately I will send you a meeting in-
vite. In the meantime, below are my thoughts about the ap-
proach. If you have a moment, I would appreciate your ideas
about how to approach.
The email went on to propose a timeline for work on the pro-
ject that called for a final proposal to be submitted to Aardema
and ultimately to the CEO of AP by March 2. However, that
timeline did not prove realistic. Brunker testified that “we
came to appreciate that the problem was more difficult than we
had originally anticipated.” The complicated job title system
that had developed over the years made it difficult to fit titles
with jobs and peg them to the relevant market data. Moreover,
as a result of the 401(k) audit, Brunker continued to find it nec-
essary to focus attention on centralizing benefits and solving
life insurance overinsurance problems. As of May 17, Brunker
was writing Aardema, Chernock, and Blanchard, and sending
them an “analysis for the hourly compensation” that was “still a
work in progress.” Pursuant to this plan, the plant HR officials
were to slot their plants’ jobs into the proposed pay grades
based on market data, and ensure that jobs matched and com-
pare between plants how the jobs matched up. After that a cost
impact analysis would be developed.
In an email two days later, May 19, Aardema referenced
speaking with Mark Porter, identified by Brunker as “a high-
ranking official in the company” to whom many of the plant
managers report. As conveyed by Aardema, rather than having
every plant slot their jobs into proposed pay grades, a “straw
model” of pay grades and jobs would be developed with a
smaller group that would then be a base model to be adapted
for each plant. Aardema wrote that “[i]deally we can have a
draft outline of all the above by the first week in June . . . and
then be in a position to share it with the broader group for dis-
cussion.” Brunker continued “working through the final analy-
sis . . . from May, June, and July,” making sure there was an
“apples to apples” comparison between jobs at different plants

50 As Brunker explained, “there were quite a long list of things that
needed to be addressed” when she joined AP. Staffing for her own
department needed attention, and there were problems with data input
and configuration generally for compensation. Brunker needed to hire
a compensation and benefits analysis, and until that happened she was
doing the work herself. Benefits work took precedence because bene-
fits had to be arranged for open enrollment for 4000 employees in the
October-January timeframe. There was a Department of Labor audit of
the 401(k), as well as ongoing regular audits. The result was that the
wage project got “backburnered.”
so that “an appropriate market adjustment based on the market
study” could be developed and finally the matter could be
brought to all of the individual plants for meetings with plant
leadership.
By mid-summer, Brunker testified that she was fending off
“question[s] about why it was taking so long from the plant
leadership because they were having difficulties running their
operations, . . . with not having their wages in place.” Those in
leadership expressing concerns to Brunker included Aardema.
During this same time period, employees also had heard
about the coming wage increase through the “rumor mill.”
Brunker explained that “[w]e had increased some of the starting
wages for jobs in February as a stop gap until we could kind of
finish the whole comprehensive project, and so the employees
that had been with us that were above starting wages . . . had
been told we were working on this; and so our employees, are
asking, ‘Well, what about us?’ You know, ‘where is our pro-
ject that you keep telling us about.’”
In response to Aardema’s concerns, on July 8, Brunker sent a
long email to Aardema outlining the complexities involved
with the restructuring, including “an un-manageable assortment
of confusing and overlapping pay grades,” the many years since
the performance of the last analysis, and the continued inde-
pendent management of pay systems for the companies ac-
quired by AP in recent years. In her email, Brunker proposed
that by September 1 “[a]ll jobs [would be] assigned to a pay
grade based on market competiveness and internal equity.” On
July 10, Aardema reported this up the management chain, rec-
ognizing that “[w]hile not related to the union situation,” an
upcoming “communication on the new salary structure next
week should provide a positive boost for those in the Cincinnati
plant.”
Brunker committed to this publicly in a July 15, 2015 memo
directed to all employees in “Enid, Portland, and Cincinnati.”
In this memo, Brunker announced plans for a change in the
wage structure that, effective August 30, would result in wage
increases for many employees (and decreases for none).
Brunker’s memo stated:
I want to take the opportunity to let you know about an exten-
sive project we've been working on since late 2014 to evaluate
the wage rates and pay programs for hourly associates in
Enid, Portland, and Cincinnati. Since October of last year, I
have been working with plant leadership to review the wage
rates and pay practices for more than 2,000 associates and 450
job titles working in the protein plants and distribution center.
This project was initiated as part of AP's strategy to align pay
practices across all locations and ensure that our wages and
benefits are competitive in our markets. AP is now ready to
fulfill its commitment and will make a significant investment
in hourly pay increases that will affect many of our hourly as-
sociates in these locations.
In general, all of our positions are placed in wage ranges, or
"grades ", that have a minimum and maximum hourly rate.
Currently, these ranges and related pay processes are different
in nearly every location, We have created a new APP wage
structure that will apply to all protein locations and the DC.
Every job has been reviewed and assigned to a grade within
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
this structure. The wage range for most associates will be
changing as a result of this study.
What this means for you will depend on where your wage rate
falls in your new grade today. If your current rate is below the
minimum of your new grade; you will receive an increase so
that your rate falls within the new range. Rates for many oth-
er associates will also be increased based on internal and ex-
ternal equity. Please note: If your rate is already above the
maximum of the range, your wage rate will NOT be de-
creased. No associate will see a decrease in this current rate.
Wage rate increases will be communicated through your local
HR Manager on an individual basis. For those affected, in-
creases will be effective on Monday [sic], August 30th and
paid on paychecks dated September 11th. More information
on this transition will be provided soon. We look forward to
your support as we work through this transition.
A question and answer format sheet came with this, provid-
ing essentially similar information, although some of it adds to
the foregoing. For the sake of completeness I reproduce the
text of the question and answer sheet here:
Questions & Answers
New Hourly Pay Structure
The following questions and answers are being provided re-
garding t1PF's direction to change our wage structure for
hourly associates in Enid, Portland, Cincinnati and the DC.
Why is AdvancePierre changing the hourly wage struc-
ture?
The structure is being changed to have a common approach to
wages and pay processes across all locations in Enid, Port-
land, Cincinnati and the Distribution Center.
Will the new structure result in a wage increase for pro-
tein plant and DC hourly associates?
Many associates will receive an increase based on where they
fall in their wage range, or "grade ". Here's an explanation:
 If an associate is being paid below the minimum rate of
their new range; he/she would receive an. increase to the
new minimum
 The rates for many other associates whose rate falls
within the new range will be increased based on internal
and external equity.
 If an associate is being paid at the maximum rate of
their current range, and the maximum rate is in-
creased in the new structure; the associate would be
eligible for an increase on their next review date.
What other changes are under review with this new ap-
proach?
We will be working to have a consistent approach to shift dif-
ferentials, weekend pay, the timing of when increases are
paid, and other related considerations. These issues will be
addressed separately and communicated at a later date,
Is it possible that my current wage rate could be less as a
result of this new process?
No. There will be no decreases in wage rates as a result of this
process.
When will this process be completed? How will the details
be communicated?
Wage ranges and any associated increases will be effective on
Monday, August 31st and paid on paychecks September 4th.
Details will be communicated through individual letters and
meetings at each location.
At the time this July 15 memo was distributed, the wage plan
was not complete. Brunker testified that “at that point in time”
“we were starting to do the cost analysis so we had some pre-
liminary numbers that we were working with and they were
finalizing the numbers.” Brunker estimated “it was probably
80% done at that time.”
On August 27, 2015, the following letter was sent to each
employee. The text reproduced below is consistent with the
template letter admitted into evidence. When sent to each em-
ployee, the individual employee’s name, supervisor’s name,
current and new pay rate and percentage increase were inserted
for each employee. The letter states:
August 27, 2015
Associate Name
Supervisor Name
Location
TO:
FROM: Sue Brunker
Director, Compensation & Benefits
SUBJECT: New Hourly Wage Structure
In follow up to my letter to you in July, I want to share with
you the results of the project started in late 2014 to evaluate
the wage rates and pay programs for hourly associates in
Enid, Portland, and Cincinnati. Together with plant and DC
leadership, we have worked to align pay practices across all
locations and ensure that our wage structure is competitive.
We are pleased to announce that APE is making a significant
investment in hourly pay increases for many of our associates,
and that we've developed a consistent pay program across all
locations.
With this new approach, wages for all associates will be re-
viewed as part of our merit process in February each year. We
have also aligned pay grades across all APE locations This
way, people performing similar functions are assigned to the
same pay grade regardless of their location. In the situation
where an associate's pay reaches the maximum rate of their
grade, the annual merit review would be administered as a
lump sum bonus in lieu of a merit increase.
As part of this new structure, certain associates are receiving a
pay adjustment at this time. You are included in this group.
Others who are recent hires, those at the maximum of their
pay grade, or those who received recent pay adjustments will
be eligible for a merit review in February 2016.
As a reminder, information about your pay is considered per-
sonal and confidential and should not be shared with other
ADVANCEDPIERRE FOODS, INC. 33
associates. [Emphasis added.]
Here's what this means for you:
Your current base pay rate: <$ >
New base pay rate: <$ >
% increase:
Effective date of new rate: August 30, 2015
Pay date of new rate: September 11, 2015
Please contact your HR Representative if you have any ques-
tions.
Almost all employees at the Cincinnati plant—
approximately 588 of 596 received a wage increase under the
pay increase announced August 27. Although there are no
specifics in the record, Brunker testified that more money was
paid in wage increases at the Enid, Oklahoma facilities than in
Cincinnati as part of the wage plan. Because they were already
paid above market, there were few wage increases made at the
Portland plant.
Analysis
a. The wage increase
The General Counsel alleges that Brunker’s August 30 an-
nouncement of the implementation of the wage increase violat-
ed Section 8(a)(3) of the Act. It further alleges that Brunker’s
July 15 letter announcing an upcoming wage increase violated
Section 8(a)(1) of the Act.
The Supreme Court has held that the Act, "prohibits not only
intrusive threats and promises but also conduct immediately
favorable to employees which is undertaken with the express
purpose of infringing upon their freedom of choice for or
against unionization." NLRB v. Exchange Parts, 375 U.S. 405,
409 (1964). Where such conduct is asserted to have violated
Section 8(a)(3), the Board uses its Wright Line dual motive
analysis to assess the evidence. Clock Electric, 338 NLRB 806
(2003).
Whether considered as an 8(a)(1) or 8(a)(3) violation, there
is an assessment of the employer’s motive. In NLRB v. Ex-
change Parts, the Supreme Court held that "the conferral of
employee benefits while a representation election is pending,
for the purpose of inducing employees to vote against the un-
ion," interferes with the employees' protected right to organize.
"Similarly, an employer cannot time the announcement of the
benefit in order to discourage union support, and the Board may
separately scrutinize the timing of the benefit announcement to
determine its lawfulness." Mercy Hospital Mercy Southwest,
338 NLRB 545 (2002). “The lawfulness of an employer’s con-
ferral of benefits during a union organizing campaign depends
upon its motive.” Vista Del Sol Healthcare, 363 NLRB No.
135, slip op. at 1 fn. 2 (2016). “The Board infers improper
motive and interference with employees' Sec. 7 rights when an
employer grants benefits during an organizing campaign with-
out showing a legitimate business reason.” Id.; ManorCare
Health Service-Easton, 356 NLRB 202, 222 (2010), enfd. 661
F.3d 1139 (D.C. Cir. 2011). Notably, the rule set out in Ex-
change Parts is also applicable to promises or conferral of ben-
efits during an organizational campaign but before a representa-
tion petition has been filed. Hampton Inn NY–JFK Airport, 348
NLRB 16, 17 (2006).
In this case, AP clearly knew of the union organizing cam-
paign when it formally announced, and then later implemented
its wage increase. Given this, in terms of the 8(a)(3) implemen-
tation allegation, pursuant to Wright Line, there was union ac-
tivity, employer knowledge, and, of course, the animus found in
other parts of this decision. Thus, the burden is on the Re-
spondent to show that it would have implemented the wage
increase even in the absence of the union activity. In terms of
the 8(a)(1) announcement allegation, the Board’s analysis plac-
es the burden on the Respondent to show a legitimate business
reason for promising the wage increases that overcomes the
inference of improper motive and interference with Section 7
rights. Vista Del Sol Healthcare, supra.
In both cases, I believe that AP has made that showing.
Brunker’s testimony, corroborated by at least some documenta-
tion, demonstrates that the creation of a new pay and/or job
structure at the protein plants was initiated soon after Brunker
was hired in June 2014. However, this effort was “back-
burnered” for other work concerns. Brunker’s testimony, cor-
roborated by her February 4, 2015 email to Chernock and her
counterpart in the Enid, Oklahoma facility, demonstrates that as
of that date—months before any hint of a union campaign ex-
isted—Brunker internally announced plans “to fast track the
evaluation of wages for the plants.” Thus, the goal of reevalu-
ating wages at the “protein plants” (not just in Cincinnati) was
reactivated. At that point her goal was to submit a final pro-
posal by March 2, again well before there was any hint of a
union drive.
This timeline was not met, but that does not undercut the ev-
idence that management desired, sooner rather than later, and
before they knew of, and even before there was a union drive,
to realign compensation, not only at Cincinnati but at the other
AP protein plants. The record shows a steady effort to work on
the matter through the spring and summer of 2015. This was a
multiplant plan that was envisioned, designed, and implement-
ed. The scope of the wage reevaluation plan bolsters its busi-
ness legitimacy and cuts against the inference that the wage
increase was for other than legitimate business reasons.51
Having said that, the record is also clear that by July, Brunk-
er was receiving some pressure as to why it was taking so long
to design and implement the wage increase. In part this pres-
sure was from employees who had heard rumors of a coming
wage increase and had seen some of the starting wages rise in
February, as a stopgap measure that occurred, again, obviously,

51 The General Counsel contends that while most Cincinnati em-
ployees received the wage increase, “only a fraction of employees
throughout Respondent’s several facilities received a raise at the end of
August.” There is no record support for the latter proposition, at least if
by “fraction” the General Counsel is suggesting “few.” Brunker’s
unchallenged testimony was that the wage increases were implemented
across all the “protein” locations on August 30: Enid, Oklahoma, Port-
land, Oregon, and Cincinnati. Brunker allowed that there were not
many wage increases paid at the Portland facility, because “[t]hey were
actually already paid pretty well above market,” but testified that “[w]e
actually gave more money to Enid, Oklahoma” than was paid in Cin-
cinnati. I found Brunker to be a credible witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
before the union drive was initiated. But there was also pres-
sure from “plant leadership,” including Aardema, who recog-
nized, as he wrote in a portion of a July 10 email reporting on
the union, that “[w]hile not related to the union situation, the
communication on the new salary structure next week should
provide a positive boost for those in the Cincinnati plant.”
While it seems likely—perhaps obvious—that the union was
a reason that Aardema and other top management wanted the
wage reevaluation completed and implemented earlier rather
than later, the evidence points to legitimate business reasons as
the motive for the timing and implementation. Brunker’s
lengthy July 8 email response to Aardema’s questions about the
pay raise process demonstrates both the complexity and scope
of the endeavor. I read it as a rejoinder to any concerns ex-
pressed by Aardema as to the progress of the wage restructur-
ing.
In any event, by July 8, Brunker was proposing to complete
and implement the plan by September 1. This was consistent
with her testimony, and the response to Aardema does not indi-
cate a suspicious effort to speed up the project—a project that
the Respondent has shown was begun, and then efforts redou-
bled, before the union drive began. In my view, the General
Counsel’s case would be much stronger had the Respondent,
for instance, upon learning of the union drive, shelved the mul-
tiplant wage plan and moved immediately to implement a wage
plan at Cincinnati only. But by all evidence that was not the
case. Even after the union drive began, the Respondent contin-
ued working on the plan and nearly four months after the union
drive became known to it, implemented the new wage plan
across multiple plants. Under these circumstances, I find that
the Respondent has demonstrated a legitimate business reason
for the August 31 implementation of the wage increase, and
thus, it does not violate the Act.52
Apart from the implementation of the pay increase, the Gen-
eral Counsel challenges as an unlawful violation of Section
8(a)(1), the July 15 announcement from Brunker to employees
at the Cincinnati, Enid, and Portland plants, that there would be
a new AP wage structure, including pay rates for many em-
ployees, at the end of August. The General Counsel calls the
timing of this announcement “arbitrary,” and points out that the
details of the wage plan had not been finalized as of this date.
That is true as far as it goes. There was work still to be done,
and this announcement could have been made earlier or later.
But given that the July 15 memo to employees accurately set
forth the process to be followed in the end-of-August pay
changes, I do not see how this changes the situation. As with
the pay increase, this July 15 announcement was sent to em-
ployees at all the protein plants, not just Cincinnati, and it re-
counted the development of a process leading to the wage re-
structuring that had been in development since long before the

52 I note that the General Counsel alleges that the wage implementa-
tion violates Section 8(a)(3) of the Act. However, its argument (GC
Br. at 40–43) is devoted to an 8(a)(1) theory of unlawful interference.
In any event, I reject both theories. As to an 8(a)(3) theory, alleged but
unargued by the General Counsel except in a conclusory assertion (GC
Br. at 43), for the reasons set out in the text I find that the evidence
supports the conclusion, and I find that the pay raise would have been
implemented even in the absence of union activity by the employees.
Union was on the scene. It seems to me to be legitimate for the
Respondent to prepare employees by informing them of a pay
change that it was planning to implement in 45 days.
Here, it is relevant that there seems to be no cabining princi-
ple to the General Counsel’s argument. Board precedent sup-
ports the General Counsel’s view that a conferral of a benefit
can violate the Act even where, as here, there is a union cam-
paign but no representation petition filed. But in that case, it
seems that the General Counsel takes the position that no time
is the right time to announce a wage increase, long studied and
planned, and no time is the right time to implement it. While
the Board must be alert to a conferral of benefits timed to dis-
courage union support, a union’s organizing interest and cam-
paign is not padlock on an employer’s ability to update and
revamp its operations, including its wage structure—changes it
would have made in the absence of union activity. These are
not necessarily easy interests to balance. But in this case, I
believe the Respondent has demonstrated that its wage restruc-
turing, including its announcement, was part of a long antici-
pated plan unrelated to its employees’ union activity. I will
dismiss these allegations of the complaint (complaint para-
graphs 5(j) and 6(f)).53
b. Wage confidentiality
As discussed, Brunker sent a letter, dated August 27, an-
nouncing implementation of the new pay structure and explain-
ing to each employee their new pay rate. After preliminary and
general information about the new pay structure, and just be-
fore the letter turned to the effect of the restructuring on the
individual’s pay, the letter stated:
As a reminder, information about your pay is considered per-
sonal and confidential and should not be shared with other as-
sociates.
The General Counsel alleges that this statement—made to
each employee in the letter they received telling them their new
wage rate—violates the Act.
As the Respondent concedes (R. Br. at 42), “this statement is
not consistent with current Board law.” Indeed, that has long
been the case. See Triana Industries, 245 NLRB 1258, 1258
(1979) (unlawful to tell employees "[n]ot to go around asking
the other employees how much they were making, because
some of them were making more than others."); see, Parexel
Int’l, LLC, 356 NLRB 516, 518 (2011) (“our precedents pro-
vide that restrictions on wage discussions are violations of Sec-
tion 8(a)(1)”); Coosa Valley Convalescent Center, 224 NLRB
1288, 1289 (1976).
Further, it does not matter whether the directive is embodied

53 I recognize and have considered that evidence of union animus in
other unfair labor practices supports a finding that the motive for the
wage increase was to interfere with the employees’ Section 7 rights.
Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 1 fn. 2 (2016).
However, that animus does not disprove a legitimate business reason
for the wage increase here. Nor does it undercut the evidence that the
increase would have been promulgated in the absence of union activity.
I find that even considering the employer’s other antiunion animus, its
protein-plant-wide wage restructuring, long in the works, does not
violate the Act.
ADVANCEDPIERRE FOODS, INC. 35
in a "rule the breach of which would imply sanctions." Triana,
supra (overruling ALJ who found directive not to discuss other
employees' pay lawful because it did not rise to the level of a
"rule"). See also, W.R. Grace Co., 240 NLRB 813, 816 (1979)
("as a supervisor's 'request' or expression of 'preference' that an
employee comply with a policy of confidentiality nevertheless
implies that employees run the risk of supervisory displeasure
and possible adverse consequences for noncompliance to a
degree sufficient to constitute interference, restraint, and coer-
cion under the Act").
Accordingly, I find that this statement to employees violates
the Act as alleged.
VII. SOLICITATION OF GRIEVANCES (COMPLAINT
PARAGRAPH 5(K))
Facts
For years, AP maintained a suggestion box in the hallway. It
contained suggestions unresponded to from as many as eight
years ago.
On or about July 15, 2015, AP implemented “a new commu-
nication tool called C.A.T.s. (Communicating Answers Track-
ing System) as a way for you to express questions, concerns,
thoughts, and ideas and to ensure that your requests are ad-
dressed in a timely manner.”
A memo outlining the program was posted by the time clock
in the production hallway. The memo stated in full:
Last month during Petra [Sterwerf]'s business review meet-
ings, we discussed a new communication tool called C.A.T.S.
(Communicating Answers Tracking System) as a way for you
to express questions, concerns, thoughts, and ideas and to en-
sure that your requests are addressed in a timely manner.
Effective today, we are implementing CATS and forms can
be found in the Production Office and in Human Resources.
How does it work for you:
 Complete a CATS form
 Place it in the locked box in the hallway that current-
ly says Job Bids
 An HR representative will pull the CATS forms dai-
ly.
 HR will deliver to the appropriate person to answer
your question/concern /idea
 The appropriate person or your supervisor will follow
up with you within a designated amount of time.
We truly value your contribution to AdvancePierre Foods and
look forward to building stronger communication!
On July 16, 2015, Plant Manager Sterwerf sent a note to other
managers saying,
The supervisors are starting to push CATS to our team mem-
bers . . . please make sure we are checking the box daily and
getting the right people to respond to the questions.
Definitely want to start strong!
Also on July 16, Stanford sent an email to supervisors with at-
tached CATS:
Attached [is] the following information to cover with your as-
sociates around a new communication tool called CATS that
is being rolled out. . . . Show the associates the CATS form
and walk them through how it is to be used.
Ramirez checks the CATS/job bids box daily. As Plant
Manager Sterwerf explained, based on the subject of the in-
quiry or complaint Ramirez will “get it to the appropriate man-
ager or subject matter expert, and then formulate a response to
give back to the team member, so that we can close the loop on
their concerns.” Sonja Guzman testified that her supervisor
first showed her the form and told her “that sheet was there
where we could circle something on it, which we wanted to
change” and “in 48 hours there would be a response.”
Just a few days after the CATS announcement, on July 20,
Ronnie Fox submitted the first CATS form, with a suggestion
and comment about changing or eliminating the accumulation
of attendance points. Sonja Guzman encouraged him to submit
it, because she knew employees “were really worried about the
points, that they were going to lose their jobs.”
Upon receiving Fox’s CATS form, Sterwerf sent a note to
Ramirez, Chernock, Aardema and Ernie Hayes: “It’s important
that we log this and get a response back to Ronnie [Fox] in 48
hours or less to build credibility with this new program.”
Ramirez asked Aardema and Chernock, with a copy to Sterwerf
and Hayes, “Can you please let me know if we have considered
making any changes to the point system? I know we were get-
ting feedback from other locations, but had not heard how that
went.” The last reference was to changes in attendance points
policy that had been made at other plants. Ramirez contacted
Fox and told Fox that “they’re working on it” and they were
trying to get in contact with other AP plants and have a “uni-
fied” system as to points and occurrences. To date, no changes
have been made at AP’s Cincinnati plant in response to Fox’s
CATS form.
A couple of weeks later, approximately August 4, a packet of
20–30 CATS forms stapled together were provided to Sterwerf
by Ramirez. She had received them from employees Carmen
Cotto and Charles Rogers. Most asked for a starting wage of
$15 an hour, and had a union logo or legend added across the
top. The one of these in evidence stated in the comments: “A
Union For a Real Voice on the job!” Sterwerf and Ramirez met
and “decided that, basically, we would not respond to these
because they weren’t our forms,” due to their being “alter[ed]”
with the union logo being added, and also “because as a plant
manager, I don’t have the ability to change the wages, the start-
ing minimum wage anyway.”
There have been additional CATS forms used by employees.
Two CATS forms dated August 7, were received from the
same employee, in which he complained (R. Exh. 21) about
actions of a QC employee, whose name the CATS signer wrote
as “Vioney,” allegedly “looking the other way” about GMP
violations committed by people “she is friends with or close
to.” These CATS complaints were referred to the QA manager
for response. Sterwerf characterized this CATS complaint as a
“Union GMP violation.”54 Some employees have used CATS

54 The CATS form, submitted by employee Travis Waldorf, referred
to “Vioney.” Sterwerf testified that she assumed this referred to Vianey
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
forms to submit concerns about an occurrence point they re-
ceived, and as a result of submitting the form were able to use a
vacation day to avoid getting the occurrence.
Testimony was offered about the origins of the idea for the
CATS system at AP. Plant Manager Sterwerf, who was hired
at AP in September 2014, had previously worked for Hillshire
Farms (previously Sara Lee), a unionized facility in Claryville,
Kentucky. She had used the CATS system there. She testified
that, dissatisfied with the communication at AP with employ-
ees, sometime “after Christmas, early Spring” she decided “in
her [own] mind“ that CATS would be beneficial to the AP
plant. She talked to Stanford about bringing some “lean con-
cepts and tools” that had been used at Claryville, and “CATS
was one of those.” Stanford testified he first used CATS about
ten years ago when working for Sara Lee (then Hillshire). He
testified that in approximately March 2014, he told Ramirez
about CATS and told her “it was a great tool for employee
involvement, employee engagement, and very good, that we
should do something with it, you know, implement it.”
Ramirez testified that she talked to Stanford on March 12, and
he mentioned “lean” and “continuous improvement” tools from
Hillshire, including “a suggestion box” to which replies were
made in 48 hours without using the specific term CATS.
Ramirez did not testify that there was a plan to implement
CATS in March.
In a “business review meeting” with employees at the end of
May, around Memorial day, called to review performance and
safety issues, Sterwerf talked about the CATS system. She
described how it was used at her former facility, and examples
of how it was used in conjunction with layoffs, among other
things, at Hillshire. Sterwerf told the employees to “stay
tuned.”
On June 2, 2015, she sent an email to AP supervisors Fer-
nando Chappell, Dwayne Stanford (operations manager) and
Jeff Frazen (warehouse manager), all of whom had come from
Hillshire too, asking, “Do any of you have a blank CATS form
from Claryville or could you get me one? I would like to tailor
it for our use here.”
By email dated June 3, Sterwerf forwarded some examples
of CATS forms used at Hillshire, presumably obtained from
Chappell, Stanford, or Frazen, to Aardema and Chernock. Her
email explained how the CATS system worked. She noted that
at Hillshire, “[t]he problem was that many times we were not
following up on issues that were brought up in passing to man-
agers and supervisors on the floor,” so Hillshire implemented
this system that she noted was developed by Toyota. She
wrote:
The form notifies us of the concern, HR logs it into a database
and we had 48 hours to get a response back to the team mem-
ber. I then summarized the information and updated the team
at my business review meetings. I would discuss our fill rate
and then I would talk about key ideas that came from the pro-
cess.
It was powerful stuff . . . we did not intend for it to drop

Guzman. Vianey Guzman, who testified in the hearing, is a union
supporter and a QC inspector.
grievances but it did because the[ ] team saw they got a
quicker response directly from a manager. [Ellipses in origi-
nal].
After that, Sterwerf met with AP’s “leadership team” and
showed the forms to managers. Sterwerf testified that Ramirez
“tailored the form a little bit,” but, in fact, the form used is
identical to one of the Hillshire forms that Sterwerf forwarded
to Aardema and Chernock on June 3.
Analysis
The General Counsel alleges that the implementation of the
CATS grievance system constitutes an unlawful solicitation of
grievances and implied promise to remedy the grievances, in
violation of Section 8(a)(1).
“Absent a previous practice of doing so . . . the solicitation of
grievances during an organizational campaign accompanied by
a promise, expressed or implied, to remedy such grievances
violates the Act.” (internal quotations omitted). Maple Grove
Health Care Center, 330 NLRB 775, 775 (2000) (citing, Capi-
tol EMI Music, 311 NLRB 997 (1993), enfd. mem. 23 F.3d 399
(4th Cir. 1994)). "[I]t is not the solicitation of grievances itself
that is coercive and violative of Section 8(a)(1), but the promise
to correct grievances . . . that is unlawful." Uarco, Inc., 216
NLRB 1, 2 (1974); Maple Grove Health Care Center, supra (“it
is the promise, expressed or implied, to remedy the grievances
that constitutes the essence of the violation”). "The solicitation
of grievances alone is not unlawful, but it raises an inference
that the employer is promising to remedy the grievances."
Amptech, Inc., 342 NLRB 1131, 1137 (2004), enfd. 165 Fed.
Appx. 435 (6th Cir. 2006); Blue Grass Industries, 287 NLRB
274, 274 fn. 4 (1987); Uarco, Inc., 216 NLRB at 2. “This in-
ference is particularly compelling when, during a union organi-
zational campaign, an employer that has not previously had a
practice of soliciting employee grievances institutes such a
practice.” Amptech, Inc., supra; Maple Grove Health Care
Center, 330 NLRB at 775 (“the solicitation of grievances in the
midst of a union campaign inherently constitutes an implied
promise to remedy the grievances”).
“[T]he fact an employer's representative does not make a
commitment to specifically take corrective action does not
abrogate the anticipation of improved conditions expectable for
the employees involved.” Maple Grove Health Care Center,
330 NLRB at 775. “In connection with the solicitation of
grievances, a statement that the employer is ‘looking into’ mak-
ing changes desired by employees indicates that action is being
contemplated and constitutes an implied promise of improve-
ments.” Desert Springs Hospital Medical Center, 363 NLRB
No. 185, slip op. at 11 (2016); see also, Purple Communica-
tions, 361 NLRB No. 43, slip op. at 4 (2014) (statements that
employer “looking into” “recalibrating” productivity standards
are objectionable in representation election context).
Here, the Respondent introduced a new, formalized, and
much touted solicitation-of-grievance program—the CATS
system—in the midst of the union campaign. It was first men-
tioned to employees in a “business review” meeting near the
end of May, at which time Sterwerf and the Respondent were
very aware of and attuned to the union campaign. The CATS
system was implemented July 15.
ADVANCEDPIERRE FOODS, INC. 37
CATS was openly explained to employees in the introducto-
ry memo as a way to “express questions, concerns, thoughts,
and ideas and to ensure that your requests are addressed in a
timely manner.” Previously there had been no procedure to
solicit grievances—the hallway suggestion box had contained
questions unanswered for eight years. The implementation of
the CATS system constituted the institution of an entirely new
program of solicitation of grievances, in the midst of an organ-
izing campaign. Thus, there is a “particularly” “compelling
inference” that the employer is promising to remedy grievanc-
es. Amptech, supra.
Here, there was no rebuttal whatsoever of this “compelling
inference” that the Respondent was promising to remedy the
grievances. Indeed, the response to the very first CATS com-
plaint—submitted by Fox on July 20, and requesting a change
in the attendance point system—was that “they’re working on
it.” The implementation of CATS was a plain violation of the
Act, under the controlling precedent.
The Respondent’s defense is without force. It argues (R. Br.
at 43) that “[t]here is no implicit (or explicit) guarantee that
topics or suggestions raised through CATS would be imple-
mented or remedied.” (emphasis added). However, the lack of
guaranteed redress is not the standard which the Board applies.
Rather, the violation is demonstrated by commencing a new
practice of soliciting employee grievances in the middle of a
union campaign—as a matter of law, this raises the inference of
an unlawful promise to remedy the grievances. Amptech, su-
pra; Maple Grove Health Care Center, 330 NLRB at 775 (“the
fact an employer's representative does not make a commitment
to specifically take corrective action does not abrogate the an-
ticipation of improved conditions expectable for the employees
involved”).
The Respondent also contends that the CATS system, like
the wage increase, was in the works even before the union drive
began. But neither the facts nor the precedent provide much of
a defense here. Unlike the multiplant wage restructuring that
had been worked on, on and off, for a year, Sterwerf vaguely
dated the idea of having CATS at AP to the claim that “in her
[own] mind” she had decided, between Christmas 2014 and
Spring 2015, that the CATS system she used in her previous
employment would be beneficial to the AP plant. Sterwerf
talked with Stanford in the spring about bringing some “lean
concepts and tools” used in their previous employment to AP,
including CATS. And Stanford told Ramirez in the spring that
CATS “was a great tool for employee involvement, employee
engagement, and very good, that we should do something with
it, you know, implement it.” Whatever the credibility of this
testimony, Ramirez did not testify that there was a plan to im-
plement CATS in March. There was in fact, no documented
plan or tangible steps taken to use CATS at AP until after the
union drive was well under way. Indeed, as of June 2, Sterwerf
was emailing her supervisors who had worked with her at the
previous job and asking them if “any of you have a blank
CATS from Claryville or could you get me one.” As of June 3,
Sterwerf was explaining in an email to her HR management,
Aardema and Chernock, how the CATS system worked and
explaining to them that “[i]t was powerful stuff . . . we did not
intend for it to drop grievances but it did because the[ ] team
saw they got a quicker response directly from a manager.” One
can look at this record and confidently conclude that the CATS
program and the push for it was implemented as an antidote to
the union drive.55
But more to the point, the Board precedent regarding solici-
tation of grievances is different than that involving the conferral
of a discrete benefit, like a wage increase. As discussed above,
with a unilateral conferral of a benefit, the Board looks for
evidence of intent that the benefit was introduced to induce
employees to oppose the union. Establishing that the benefit
was planned to be implemented before the union appeared can
support the contention that the benefit’s intent had nothing to
do with discouraging unionization and would have been im-
plemented in the absence of union activity. However, the solic-
itation of grievances with the inference of a promise to remedy
those grievances, is unlawful not for its intent but for the “com-
pelling inference that [the employer] is implicitly promising to
correct those inequities he discovers as a result of his inquiries
and likewise urging on his employees that the combined pro-
gram of inquiry and correction will make union representation
unnecessary.” Reliance Electric Co., 191 NLRB 44, 46 (1971),
enfd. 457 F.2d 503 (6th Cir. 1972). So while an employer’s
(pre-union drive) past practice of soliciting grievance meetings
may undercut the inference that the employer’s solicitation of
grievances during a union drive carries an implicit promise to
remedy the problems and make union representation unneces-
sary, here there was no past practice at all. The CATS system
was introduced during the union campaign for the first time.
The Respondent’s effort to pre-date the planning for having a
CATS system is beside the point.56
CONCLUSIONS OF LAW
1. The Respondent, AdvancePierre Foods, Inc. is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent violated Section 8(a)(1) of the Act, from
on or about May 13, 2015, to on or about June 10, 2015, by
maintaining and enforcing an unlawful and overly broad solici-
tation/distribution policy.
3. The Respondent violated Section 8(a)(3) and (1) of the

55 I discredit Sterwerf’s self-serving conclusory statements to the
contrary. (Tr. 727–728, 738).
56 Finally, for reasons that elude me, the Respondent points (R. Br.
at 43–44) to its refusal to even consider CATS grievances with proun-
ion sympathies as evidence that the CATS program did not interfere
with Section 7 rights. To the contrary, one would be hard pressed to
find a more vivid illustration of the antiunion import of the CATs pro-
gram. Contrary to the effort the Respondent put into timely answering
most CATS complaints, CATS complaints with union markings went
unanswered by the Respondent on the grounds that they were “altered”
by the union and thus “weren’t our forms.” Moreover, when the forms
contained a union legend, the Respondent suddenly found itself power-
less to act on the matter. When a “union” CATS complaint asked for
an increase in starting wages, Sterwerf testified that the Employer did
not respond “because as a plant manager, I don’t have the ability to
change the wages, the starting minimum wage anyway.” Obviously,
there was going to be no hurried assurance to employees that “they’re
working on it” when a union-affiliated CATS request came in. This
was a decidedly nonunion grievance procedure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
Act, on or about June 9, 2015, by issuing a verbal disciplinary
warning to Carmen Cotto, Sonja Guzman, and Ronnie Fox, in
retaliation for their union activities.
4. The Respondent violated Section 8(a)(1) of the Act, on or
about June 9, 2015, by interrogating an employee about the
union activity of a coworker.
5. The Respondent violated Section 8(a)(1) of the Act, on or
about June 8, 2015, by engaging in surveillance of employees’
union activity by searching their clipboards for union authoriza-
tion cards.
6. The Respondent violated Section 8(a)(1) of the Act, on or
about June 16, 2015, by engaging in surveillance of employees’
union activity by searching for evidence of their union activity
online and searching suspected union sympathizers’ Facebook
pages.
7. The Respondent violated Section 8(a)(1) of the Act, on or
about June 17, 2015, by demanding that employee Diana Con-
cepcion document her identity, in retaliation for her union ac-
tivity.
8. The Respondent violated Section 8(a)(3) and (1) of the
Act, on or about July 17, 2015, by suspending Diana Concep-
cion indefinitely for her failure to comply with an unlawfully
motivated demand that she document her identity.
9. The Respondent violated Section 8(a)(1) of the Act, on or
about July 17, 2015, by assessing employee Jessenia Maldona-
do an attendance point for her participation in protected and
concerted activity.
10. The Respondent violated Section 8(a)(1) of the Act, on
or about August 27, 2015, by instructing employees that their
pay is considered personal and confidential and is not to be
shared with other employees.
11. The Respondent violated Section 8(a)(1) of the Act, on
or about July 20, 2015, and thereafter, by soliciting grievances
and impliedly promising employees increased benefits and
improved terms and condition of employment in order to dis-
courage employees from supporting a union.
12. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
Remedy
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent, having verbally warned employees Ronnie
Fox and Sonja Guzman, must rescind the warning.57 The Re-
spondent having unlawfully assessed employee Jessenia Mal-
donado with an attendance point, must rescind the attendance
point.
The Respondent, having unlawfully suspended Diana Con-
cepcion, must offer her full reinstatement to her former job, or
if that job no longer exists, to an equivalent position, without
prejudice to her seniority or any other rights or privileges pre-

57 The record demonstrates that the warning to Cotto was rescinded;
I do not consider Guzman’s warning, which AP maintained it did not
give, to have been clearly rescinded.
viously enjoyed. The Respondent shall make Concepcion
whole for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful suspension of her. The
make whole remedy shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interested at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). In accordance with Don Chavas,
LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), the
Respondent shall compensate Concepcion for the adverse tax
consequences, if any, of receiving lump sum backpay awards,
and, in accordance with AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016), the Respondent shall, within 21 days of
the date the amount of backpay is fixed either by agreement or
Board order, file with the Regional Director for Region 9 a
report allocating backpay to the appropriate calendar year for
each employee. The Regional Director will then assume re-
sponsibility for transmission of the report to the Social Security
Administration at the appropriate time and in the appropriate
manner.58
The Respondent shall also be required to remove from its
files any references to the unlawful suspension of Concepcion,
and the unlawful warnings to Cotto, Guzman, and Fox, and the
unlawfully assessed attendance point against Maldonado, and
to notify each of them in writing that this has been done and
that the suspension, warning, or attendance point will not be
used against them in any way.
The Respondent shall be required to rescind its implementa-
tion of the unlawfully implemented CATS grievance program.
The Respondent shall post an appropriate informational no-

58 The General Counsel contends that Concepcion should be reim-
bursed for all search-for-work and work-related expenses regardless of
whether she receives interim earnings in excess of those expenses dur-
ing any given yearly quarter or during the overall backpay period. As
the General Counsel recognizes, under extant Board law those expenses
are considered an offset to interim earnings. Such a change in Board
precedent is a matter for Board consideration. The Board has yet to
resolve the matter. National Association of Professional Women, 364
NLRB No. 19, slip op. at 3 fn. 1 (2016). I must apply extant Board
precedent, and on that grounds I reject the General Counsel’s proposed
remedy. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) ("We empha-
size that it is a judge's duty to apply established Board precedent which
the Supreme Court has not reversed. It is for the Board, not the judge,
to determine whether that precedent should be varied" (citation omit-
ted). Accord, Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4
(1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
The General Counsel additionally seeks a make whole remedy for
Concepcion that includes reasonable consequential damages incurred as
a result of the Respondents' unfair labor practices. In particular, and
citing Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137, 152
(2002), the General Counsel contends that consequential damages are
necessary to prevent the possibility of remedial failure, should the
Respondent successfully argue in a compliance hearing that Concep-
cion is not entitled to a remedy that includes backpay and reinstate-
ment. I find this argument entirely speculative. It can be raised in a
compliance hearing in response to arguments of the Respondent. In
any event, as with the search-for-work expenses, the request for conse-
quential damages as part of the remedy does not reflect extant law, and
as such, is for the Board to consider. Goodman Logistics, LLC, 363
NLRB No. 177, slip op. at 2–3, fn. 2 (2016).
ADVANCEDPIERRE FOODS, INC. 39
tice, as described in the attached appendix. This notice shall be
posted at the Respondent's facility wherever the notices to em-
ployees are regularly posted for 60 days without anything cov-
ering it up or defacing its contents. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event
that during the pendency of these proceedings the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since May 13, 2015. When the notice is issued to the Respond-
ent, it shall sign it or otherwise notify Region 9 of the Board
what action it will take with respect to this decision. As the
Respondent has a large number of employees whose primary
language is not English, the Respondent shall be required to
post the notice in both English and Spanish, and any such other
languages as the Regional Director determines necessary to
fully communicate with employees.
The General Counsel also seeks (GC Br. at 49) a panoply
of “additional remedies beyond the Board’s standard reme-
dies.” He seeks an order requiring a reading of the notice,
the publication of the notice in publications of general local
interest, employer-paid training by Board agents for em-
ployees, supervisors, and managers about their rights under
the Act, and an order that the employer periodically supply
the union with employee contact and other information for a
period of two years.
An argument for each of these remedies can be made in
the abstract. However, one is left with the strong feeling
that in the context of the Board’s current remedial practices,
the General Counsel’s remedial demands are unwarranted
based on the violations found.
While I have found that the Respondent engaged in a
number of unfair labor practices, and they are by definition
serious, the General Counsel’s characterization of them
exceeds their substance. This is not a case where the severi-
ty and scope of the employer’s unfair labor practices
demonstrates that traditional remedies are insufficient to
redress the effects of the Respondent’s unfair labor practic-
es.59
Here, the plant-wide violations directly affecting every
employee involve the implementation of the CATS griev-
ance mechanism, the temporary (three to four week)
maintenance of an unlawful solicitation/distribution policy,

59 The General Counsel argues that publication of the notice is war-
ranted because at rallies, in the media and on the radio, the union and
employees pressed their case. However, the General Counsel cites no
case in which the necessity for nontraditional remedies turns on the
vigor with which the employees, unions, or their allies, publicize their
struggle to the general public. Remedies should be based on the objec-
tive and reasonably likely—not the asserted actual or subjective—
effects of the unfair labor practices being remedied.
and the one-time written admonition to employees that pay
rates are confidential and not to be shared. These are, for
sure, serious violations of the Act, but none can be charac-
terized as outrageous, likely to arouse fear, likely to persist
after the application of traditional remedies, or otherwise
likely to cripple employees’ efforts to engage in organiza-
tional activity under the Act.
In addition, there were a number of unfair labor practices
directed to individual employees. In an employee comple-
ment of 596 employees, three employees received a verbal
warning (one was quickly rescinded), one employee was
unlawfully asked about another employees’ union activity,
an employee received an attendance point for striking, there
was an unlawfully motivated “clipboard audit” that affected
an unknown number of employees on one day, and, most
seriously, one employee has been suspended and subjected
to unlawful scrutiny of her identify.
In all, there are a significant number of unfair labor prac-
tices. However, the unit is large. With the exception of the
suspension, these unfair labor practices do not constitute
“hallmark” violations. Other than the one suspension, these
unfair labor practices do not constitute direct threats to the
pay, benefits, or jobs of employees. There were no threats
of plant shutdowns, or about the futility of unionization. No
argument is made that the Respondent has a history of or
proclivity to repeat these unfair labor practices. I do not
find that the Respondent’s conduct rises—or more aptly,
sinks—to the level of egregious employer conduct that justi-
fies the imposition of additional remedies. While the Re-
spondent has engaged in unlawful conduct, these are not
unfair labor practices that one would expect could not be
remedied through traditional remedies. I conclude that un-
der these circumstances, the General Counsel has failed to
make its case that traditional remedies are insufficient to
remedy the effects of the unfair labor practices. See, Perry
Brothers Trucking, 364 NLRB No. 10, slip op. at 3 fn. 6
(2016) (denying General Counsel request that notice be read
in case finding unlawful layoff and discharge, two instances
of instructing employees not to discuss terms and conditions
of employment, and unlawfully indicating that it was futile
to engage in protected and concerted activity); Checkers and
Fast Food Workers Committee, 363 NLRB No. 173, slip op.
at 2 fn. 2 (2016) (denying General Counsel request that no-
tice be read in case involving two unlawful discharges,
threats of unspecified reprisals, and unlawful decreasing of
employees’ hours). See, by contrast, OS Transport LLC, 358
NLRB 117 (2012), relied upon by the General Counsel for the
proposition that additional remedies may be appropriate when
the impact and awareness of the unfair labor practices is unit-
wide. However, that case involved many more severe and
hallmark violations of the Act, conducted among a unit of 14
drivers. Here by contrast, the potential unit is nearly 600, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
the violations relatively limited in scope and severity.60
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent's facilities wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Re-
spondent has gone out of business or closed a facility involved
in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent at any
time since May 13, 2015. When the notice is issued to the Re-
spondent, it shall sign it or otherwise notify Region 9 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended61

60 In support of its remedial argument, the General Counsel also
emphasizes the claim that the “diverse make-up of Respondent’s work-
force renders traditional remedies insufficient” (GC Br. at 49) and that
traditional remedies will not counter “the degree of chill on employee
union activity engendered by the unlawful utilization of immigration
related threats during an initial organizing campaign.” (GC Br. at 55).
In this case there is just one employee (out of nearly 600) for whom the
employer engaged in an unfair labor practice that bears in any way
upon immigration status. There is no evidence that the Respondent has
generally targeted immigrants in the workforce, or used threats or lan-
guage to stoke immigration-related fears in the workforce. I recog-
nize—indeed, I agree—that even one unlawful suspension related to
immigration issues could inhibit “even authorized employees [from]
exercising their Section 7 rights if it means they might be questioned
about their actual or perceived immigration status” (Farm Fresh Co.,
Target One, LLC, 361 NLRB No. 83, slip op. at 1 fn.1 (2014) (noted by
Member Schiffer). However, the recognition of this enduring problem
does not amount to a showing of the inadequacy of traditional Board
remedies and even less the advantage of the remedies advanced by the
General Counsel. Rather, cases citing the vulnerability of an immigrant
workforce as supporting special remedies treat with egregious employer
misconduct. See, e.g., Concrete Form Wall, Inc., 346 NLRB 831, 839
(2006), cited by the General Counsel, where the Board, in adopting a
Gissel bargaining order and required the reading of the notice—but not
its publication—relied in part on the fact that “[t]he Respondent’s work
force is comprised almost entirely of Spanish-speaking employees with
questionable ability to work in the United States legally.” Concrete
Form Walls was a case studded with hallmark violations absent here,
including the discharge of nearly 1/4 of the Hispanic unit employees
and nearly 1/6 of the unit employees because they voted in a represen-
tation election. The Board recognized “a marked difference between
the type of interference with the Section 7 right caused by a preelection
discharge and that caused by a discharge resulting directly from an
employee's exercise of that right. The former interferes with the em-
ployee's right to make a free electoral choice, while the latter represents
a full frontal assault on the right to vote at all.” The actions of the
employer in Concrete Form Wall are of a different order of magnitude
than what we confront here.
61 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ORDER
The Respondent AdvancePierre Foods, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining and/or enforcing an unlawful and overly
broad solicitation/distribution policy.
(b) Discriminatorily disciplining employees in retaliation for
their union activities.
(c) Interrogating any employee about the union activity of a
coworker.
(d) Engaging in surveillance of employee union activity by
searching clipboards for union materials.
(e) Engaging in surveillance of employee union activity by
searching for employee union activity online and searching
suspected union sympathizers’ Facebook pages.
(f) Discriminatorily demanding documentation of employee
identity in retaliation for union activity, and discriminatorily
suspending any employee for failing to satisfy the unlawful
demand.
(g) Disciplining any employee for an absence caused by par-
ticipation in a lawful strike.
(h) Instructing employees that their pay rate is considered
personal and confidential and is not to be shared with other
employees.
(i) Soliciting grievances from employees and impliedly
promising to remedy them in order to discourage employees
from supporting union organizational activity.
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Diana
Concepcion full reinstatement to her job, or if that job no long-
er exists, to a substantially equivalent position, without preju-
dice to her seniority or any other rights or privileges previously
enjoyed.
(b) Make Diana Concepcion whole for any loss of earnings
and other benefits suffered as a result of her unlawful suspen-
sion, in the manner set forth in the remedy section of this deci-
sion.
(c) Compensate Diana Concepcion for the adverse tax con-
sequences, if any, of receiving a lump sum backpay award, and
file with the Regional Director for Region 9, within 21 days of
the date the amount of backpay is fixed either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension given to Di-
ana Concepcion, and within 3 days thereafter, notify her in
writing that this has been done and that the suspension will not
be used against her in any way.
(e) Rescind the unlawful disciplinary warnings issued to
Sonja Guzman and Ronnie Fox.

ed by the Board and all objections to them shall be deemed waived for
all purposes.
ADVANCEDPIERRE FOODS, INC. 41
(f) Rescind the attendance point unlawfully issued to Jesse-
nia Maldonado for her participation in protected and concerted
activities.
(g) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful disciplinary warnings
given to employees Carmen Cotto, Sonja Guzman, and Ronnie
Fox, and the unlawfully assessed attendance point against
Jessenia Maldonado, and within 3 days thereafter, notify these
employees in writing that this has been done and that the warn-
ings or attendance point will not be used against them in any
way.
(h) Rescind the implementation and maintenance of the
CATS grievance program.
(i) Within 14 days after service by the Region, post at its fa-
cilities in Cincinnati, Ohio, copies of the attached notice
marked "Appendix." 62 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent's authorized representative, shall be translated into
Spanish, and any other languages that the Regional Director
determines is appropriate, and the Spanish, other language, and
English notices shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices in each
language deemed appropriate shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice in each appropri-
ate language, to all current employees and former employees
employed by the Respondent at any time since May 13, 2015.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 9 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 27, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

62 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain and/or enforce an overly broad solici-
tation/distribution policy that restricts you from the exercise of
the rights set forth above.
WE WILL NOT discriminatorily issue disciplinary warnings to
you in retaliation for your union activities.
WE WILL NOT interrogate you about the union activity of your
coworkers.
WE WILL NOT engage in surveillance of your union activity
by searching employee clipboards for union materials.
WE WILL NOT engage in surveillance of your union activity
by searching for evidence of union activity online and search-
ing suspected union sympathizers’ Facebook pages.
WE WILL NOT discriminatorily demand documentation of
your identity in retaliation for union activity and WE WILL NOT
suspend you for failing to satisfy the unlawful demand for iden-
tification.
WE WILL NOT discipline you for an absence caused by partic-
ipation in a lawful strike.
WE WILL NOT instruct you that your pay rate is considered
personal and confidential and should not be shared with your
coworkers.
WE WILL NOT solicit grievances from you and impliedly
promise to remedy them in order to discourage you from organ-
izing a union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL offer Diana Concepcion full reinstatement to her
job, or if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
WE WILL make Diana Concepcion whole, with interest, for
any loss of earnings or other benefits suffered as a result of her
unlawful suspension.
WE WILL remove from our files any reference to the unlawful
suspension given to Diana Concepcion, and WE WILL within 3
days thereafter notify Diana Concepcion that this has been done
and that her unlawful suspension will not be used against her in
any way.
WE WILL rescind the unlawful disciplinary warnings issued to
Sonja Guzman and Ronnie Fox.
WE WILL rescind the attendance point unlawfully issued to
Jessenia Maldonado for her participation in protected and con-
certed activities.
WE WILL rescind the implementation and maintenance of the
CATS grievance program.
WE WILL remove from our files any reference to the unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
warnings given to Carmen Cotto, Sonja Guzman, and Ronnie
Fox, and to the unlawful attendance point given to Jessenia
Maldonado, and WE WILL within 3 days thereafter notify Car-
men Cotto, Sonja Guzman, Ronnie Fox, and Jessenia Maldona-
do, in writing that this has been done and that their warnings
and/or attendance point will not be used against them in any
way.
ADVANCEPIERRE FOODS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-153966 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.