Apex Linen Service Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 6, 2018

28-CA-192349 (N.L.R.B. Jun. 6, 2018)

JD(SF)–15–18
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
APEX LINEN SERVICE INC.
and Cases: 28–CA–192349
28–CA–192774
28–CA–193126
28–CA–193231
28–CA–196285
28–CA–196459
28–CA–197069
28–CA–197182
28–CA–197190
28–CA–198033
28–CA–202027
28–CA–202209
28–CA–203269
28–CA–193128
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 501, AFL–CIO
and
ADAM ARELLANO, an Individual
Nathan A. Higley, Esq., for the General Counsel.
John M. Naylor, Esq. and Andrew J. Sharples, Esq.
(Naylor & Braster), for the Respondent.
Adam N. Stern, Esq. (The Myers Law Group)
for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. The dispute in this case stems from
the events that followed an organizing drive by International Union of Operating Engineers
Local 501, AFL–CIO (Union or Local 501) among the engineering department employees of
Apex Linen Service, Inc. (Respondent or Employer), which culminated with the Union
prevailing in an election. At issue is whether Respondent unlawfully interrogated and threatened
its employees; whether Respondent terminated 3 of its employees because of their support for the
Union and failed to bargain with the Union regarding such actions; whether Respondent made
JD(SF)–15–18
2
unilateral changes without bargaining with the Union; whether Respondent failed to bargain in
good faith during negotiations by not submitting counter proposals and not investing authority in
its negotiator to agree to proposals; and whether Respondent failed to provide the Union with
information it requested.
5
I. PROCEDURAL BACKGROUND
Based on charges filed by the Union and by Adam Arellano, an individual (and alleged
discriminatee) in the above-captioned cases, the Regional Director for Region 28 of the Board
issued a consolidated complaint on August 31, 2017, alleging that Respondent had violated 10
Sections 8(a)(1), (3), and (5) of the Act by engaging in the above-described conduct. On
October 10, 2017, the first day of hearing, the General Counsel moved to amend the consolidated
complaint, a motion which I granted. For the sake of clarity, I directed the General Counsel to
issue an amended complaint tracking the changes made, which the General Counsel did on
December 17, 2017, after the hearing had closed. I presided over this case in Las Vegas, Nevada 15
on October 10, and December 4 through 6, 2017.1
II. JURISDICTION AND LABOR ORGANIZATION STATUS
The complaint alleges, and Respondent admits, that at all material times it has been a 20
Nevada corporation with an office and place of business in Las Vegas, where it has been
engaged in the operation of a commercial laundry facility. The complaint further alleges, and
Respondent admits, that during the 12-month period ending on February 2, 2017, in conducting
the business operations described above, Respondent derived gross revenues in excess of
$500,000, and during the same time period purchased and received goods valued in excess of 25
$5,000 directly from points outside the State of Nevada. Accordingly, Respondent admits, and
I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
The complaint further pleads that the Union is a labor organization within the meaning of 30
Section 2(5) of the Act, which Respondent denied in its answer. I conclude that the Union’s
status as a labor organization within the meaning of the Act is not truly in contention or in doubt,
for a number of reasons. First, I take judicial notice of the fact that the Union has been
representing employees in the Las Vegas area and other areas for many years and has been
previously found by the Board and the courts to be a labor organization within the meaning of 35
the Act. See, Operating Engineers, Local 501 (Golden Nugget Las Vegas), 366 NLRB No. 62
(2018); Hilton Hotel Corp., 287 NLRB 359 (1987); Operating Engineers, Local 501(Anheuser
Busch, Inc.), 199 NLRB 551 (1972), remanded and reversed on other grounds, 217 NLRB 207
(1975). Second, the over-all record in this case, as well as the record in the underlying
representation proceedings in Case 28–RC–191728, clearly establishes that the Union is a labor 40
organization within the meaning of the Act. In that regard I note that Respondent never
challenged the certification of the Union as the representative of a unit of its employees in case
28–RC–191728 (GCX-4), a certification that would not be legally possible if the Union was not

1 The hearing in this matter opened on October 10, 2017, and was scheduled to continue during the remainder of
that week, but unfortunately I became ill at the end of the first day and the hearing had to be continued until
December 4.
JD(SF)–15–18
3
a bona fide labor organization. Indeed, Respondent recognized and bargained with the Union as
such following its certification by the Board, as will be discussed below with regard to the
alleged unfair labor practices in the instant case. In these circumstances, I find that the Union is
a labor organization within the meaning of Section 2(5) of the Act.
5
III. FACTS
A. Background2
As briefly described above, Respondent operates a commercial/industrial laundry facility 10
in Las Vegas, servicing hotels, restaurants and casinos in the area since 2011. At the time of the
hearing, it employed proximately 250 employees, including about a dozen employees in its
engineering department who are represented by the Union and who are the subject of many of
the allegations of the complaint. The function of the engineering department employees is to
repair and maintain equipment throughout the plant.15
Glen “Marty” Martin (M Martin) is Respondent’s chief operating officer and part owner
of the company, owning a certain percentage of its stock, and manages Respondent’s day-to-day
operations.3 He reports to Joseph Dramise (Dramise), Respondent’s chief executive officer and
principal stockholder. Kevin Scott (Scott) is director of engineering I and Keith Marsh (Marsh) 20
is director of engineering II, both of whom report to M Martin, perform slightly different
functions in the engineering department but have an equal rank. Reporting to them is Eugene
“Gene” Sharron (Sharron), the chief engineer, whom the engineers report to. Finally, Cristina
Linares, who reports to M Martin, is the dry cleaning manager, and as implied by her title she
works in the dry cleaning department, a department separate and apart from the engineering 25
department. All of these individuals, except for Scott, who did not testify, admitted they had
authority to discipline employees, or to effectively recommend such discipline, and or/to assign
or otherwise direct their work, grant them time off, and having other similar indicia of Section
2(11) supervisory authority. Accordingly, the record unquestionably supports the conclusion
that these individuals are statutory supervisors, and their status as such is not truly contested by 30
Respondent, and indicated above.4
In the summer and fall of 2016, the Union began organizing the employees of
Respondent’s engineering department, holding meetings at various locations and eventually
collecting signed authorization cards from them. Sometime in January 2017, the Union filed a 35

2 The facts summarized in this section are not in dispute, either because they were admitted in the answer or
unquestionably admitted by managerial representatives of Respondent during their testimony, or by other employees
whose testimony was never contradicted or rebutted. Accordingly, I chose not to cite any transcript pages in this
section. As further discussed below, while Respondent in its answer denied the supervisory status of all of its
principals and managers, this denial appears to be pro forma, as their status as supervisors is not seriously in
question. Indeed, Respondent does not even raise the issue of the supervisory status of those alleged to be statutory
supervisors in paragraph 4 of the complaint.
3 I use “M Martin,” who frequently is referred to throughout the record as “Marty,” to distinguish him from Charles
(“Ed”) Martin (E Martin), the Union’s principal representative in this matter and also a witness in the case, who is
referred to throughout the record as “Ed.”
4 As for Scott, he is not directly involved in any of the conduct alleged in the complaint, but nevertheless the record
indicates his rank is the same as Marsh’s, which would also make him a statutory supervisor.
JD(SF)–15–18
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representation petition in case 28–RC–191728, seeking to represent a certain unit of employees
in Respondent’s engineering department. Shortly after the filing of the petition, and about a day
or two before Respondent received a copy of the petition in the mail from the Board, Union
Representative Charles “Ed” Martin (E Martin) paid the Respondent a visit. He met with M
Martin, and informed him that the Union was organizing his engineering department employees.5
The representation petition culminated in a stipulated election agreement executed by
Respondent and the Union on January 31, 2017, and approved by the Regional Director on the
same date.5 Pursuant to that agreement, an election was conducted on February 6 in which the
Union received a majority of the ballots cast, and on February 15 the Regional Director certified 10
the Union as the collective bargaining representative of a unit of Respondent’s employees.6
It is Respondent’s alleged conduct in the wake of these events, except for the pre-existing
Employee Handbook provisions described below, that is the subject of the allegations of the
complaint before me.15
B. The Factual Allegations of the Complaint
1. The Employee Handbook7
20
It is alleged, and Respondent admits, that its Employee Handbook contains the following
rule which Respondent maintains:
While an Employee’s free time is generally not subject to any restrictions by the
Company, with the exceptions of the limited restrictions above, the Company urges all 25
employees to refrain from posting information regarding the Company that could
embarrass or upset co-workers or that could detrimentally affect the Company’s business.
Employees must use their best judgment. Employees with any questions should review
the guidelines above and/or consult with their manager. When in doubt, don’t post.
Failure to follow these guidelines may result in discipline, up to and including 30
termination.8
There is no allegation, or evidence, that Respondent has disciplined or otherwise taken
any action against any employee for violating the above-cited rule.

5 All dates hereafter shall be in calendar year 2017 unless otherwise indicated.
6 The unit for which the Union was certified as representative was as follows: All full-time, regular part-time and
extra board Engineers and Utility Engineers employed by the Employer at its facility located in Las Vegas, Nevada;
excluding, all other employees, office clerical employees, guards and supervisors as defined in the Act. (GCX 4).
As noted above, Respondent never challenged the validity of the bargaining unit or the certification before the
Board.
7 Initially, Paragraph 5(a) of the complaint alleged several sections of the Employee Handbook as unlawful. Post-
hearing, in the wake of the Board’s ruling in Boeing Co., 365 NLRB No. 154 (2017), the General Counsel withdrew
most of the allegations with regard to the Employee Handbook, except for the specific language cited below, which
is covered under Paragraph 5(a)(iii) of the complaint.
8 This language is contained in Section 5-4 of the Employee Handbook, under the heading of “Use of Social
Media.” The guidelines referenced in the above-quoted language are contained just above the quoted portion, in the
same section. That earlier section, as well as other sections in the Employee Handbook were initially alleged in the
complaint as being unlawful, but were withdrawn by the General Counsel post-hearing, as noted above.
JD(SF)–15–18
5
2. The alleged conduct by Sharron about January 249
As described above, shortly after the Union filed the representation petition, and a day or
two before Respondent received a copy of the petition in the mail, Union Representative E 5
Martin paid Respondent a visit. He met briefly with M Martin and informed him that the Union
was organizing his engineering department employees. M Martin admitted that after E Martin
left, he asked Sharron, the chief engineer, if he knew anything about the engineers organizing a
union, and Sharron said he did not. A day or so later Sharron told M Martin that he had asked
the engineers, and that he was upset because he had not known about it (Tr. 39–42).10
Joseph Servin (Servin), who at the time was employed by Respondent as an engineer,
testified that about January 24 Sharron approached him and asked if he knew anything about a
union trying to organize the employees. Servin, who had in fact been part of the organizing
effort, denied knowing anything. Sharron then told Sevin the Union is “just interested in taking 15
my money, and I’d only get $25 on my check, and that’s all they’d be interested in, just taking
my money.” Sharron also asked Servin how he would vote. Servin again pled innocence, saying
he did not know anything. (Tr. 528–530).
Sharron testified that after he learned from M Martin about the Union’s organizing 20
activities, he asked the engineers, “one by one,” if they were trying to bring a union in. He did
this mostly in person, but also by phone. According to Sharron, they all said no. Sharron
specifically remembered asking Servin and fellow engineer Adam Arellano, both whom denied
knowing anything. Sharron then reported his findings to M Martin. He did not address Servin’s
testimony regarding what he said about unions only wanting money, so I credit Servin. (Tr. 364–25
367).
In light of the testimony described above, I conclude there is no need to make credibility
findings regarding the alleged conduct, because Sharron not only admitted asking Servin about
his union activity, but admitted asking other employees as well—and did not deny the rest of 30
Servin’s testimony.
3. The alleged conduct by Sharron about January 2510
Adam Arellano (Arellano), at the time employed by Respondent as an engineer, testified 35
that about January 25 he was in the parts room when Sharron asked him, in Keith Marsh’s and
Kevin Scott’s presence, if “you guys want the Union.”11 Arellano replied that he did, because he
had come from a union company, and Sharron then told him that he was going to call everyone
and ask them if they wanted a union. (Tr. 490). As with the alleged January 24 incident
discussed above, I conclude there is no need for credibility findings, since Sharron admitted 40
asking Arellano as well as others about the union. The only additional detail provided by
Arellano about this encounter was regarding Marsh’s and Scott’s presence when this occurred,

9 As alleged in paragraph 5(b) of the complaint.
10 As alleged in paragraph 5(c) of the complaint.
11 As described in the background section, Marsh and Scott are both directors of the engineering department.
JD(SF)–15–18
6
something that was not denied by them or Sharron. Accordingly, I credit Arellano’s testimony in
that regard.
4. The alleged conduct by Dramise and Sharron about February 112
5
Arellano testified that about February 1, he and Servin were summoned by Sharron to
come to the conference room to meet with Joe Dramise (Dramise), Respondent’s chief executive
officer (and principal stockholder). Also present at this meeting was Sharron. According to
Arellano, Dramise told him and Servin that if the votes were in favor of the Union (in the
upcoming scheduled election), Respondent would not honor the schedules, benefits and 10
vacations that they had in place. Arellano simply responded “OK.” Servin also testified that he
and Arellano were summoned to this meeting in the conference room, which took place about
February 1. At the meeting, Dramise told them that if the Union came in, Respondent would not
honor their “contracts,” which Servin understood to mean the terms and conditions of their
employment, such as days off, hours, and rates of pay. Servin explained that when he was hired, 15
he was promised he would work weekdays and have weekends off, and that Respondent would
pay for his health benefits. According to Servin, neither he nor Arellano responded to Dramise,
because they were afraid to do so, and they were told to return to work. (Tr. 493–495; 530–533).
In his testimony, Dramise admitted that he had a meeting with Arellano and Servin on 20
February 1, although he did not recall if the meeting was held at his request. He testified that the
purpose of the meeting was to let Arellano and Servin know that Respondent was aware of the
union vote and that their “contract” would have to be “re-negotiated” with the Union—although
he admitted there was no contract in place with the employees. Sharron testified that he was
instructed by Dramise to call the engineers to a meeting at the conference room, and that 25
Arellano and Servin were the only ones on shift at the time. During the meeting, Dramise told
them if they got in a union, there would be a new contract with the union and that the employees’
contract would be “null and void,” which he understood to mean that as far as personal time off
(PTO), pay and other conditions would be up to the union. According to Sharron, neither
Arellano nor Servin said anything. (Tr. 339–341; 369–370).30
As with the previously described allegations, I conclude that there is little need for a
credibility resolution with regard to what occurred at this meeting on February 1, since there is
little difference in the version of events by the witnesses, who agree on the essential facts:
Arellano and Servin were summoned to a meeting in the conference room, and were told by 35
Dramise that if the Union came in, their conditions of employment would no longer be in
effect.13
Additionally, Servin testified that sometime in early February, Sharron spoke to him on
the shop floor. Sharron told Servin that he had figured out who the union supporters were, and 40
named Arellano, Charles Walker (Walker) and Rico (last name unknown). Sharron said that he
figured Arellano was a strong union supporter, Walker was always worried about losing his job,
and Rico had been injured recently. Sharron added that since the Union needed 30 percent

12 As alleged in paragraphs 5(d) and 5(e) of the complaint
13 To the extent that a credibility resolution is needed, however, I credit the version by Arellano and Servin, whose
testimony is not only corroborated by each other, but by Sharron as well.
JD(SF)–15–18
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support to file a petition, and hence he came up with those 3 individuals. (Tr. 534–535). Sharron
did not deny making these statements, and hence I credit Servin’s testimony.
5. The alleged conduct by Dramise on or about April 414
5
The complaint alleges that about April 4 Dramise “threatened… employees with
discharge if they engaged in protected concerted activity.” According to the evidence presented,
as well as the General Counsel’s brief, however, it appears that this alleged threat was directed at
a single particular employee, Servin, and may have been implied rather than explicit. Thus,
Servin testified that on or about April 4 he was concerned, as had occurred on other occasions, 10
that the sheets employees had to work with were coming out (of the washing or drying machines,
presumably) too hot, with a potential for scalding anyone who handled them. As he had done in
previous occasions, Servin placed a thermometer between the sheets, which showed a
temperature between 120 and 130 degrees, and took a photo with his cell phone of the
thermometer. He then texted the photo(s) to Marsh to express his concern about the issue.15 (Tr.15
540–542).
M Martin testified that while sitting in his office, he saw Servin in a security monitor
placing something in the sheets and taking a photograph. He went down to the plant and
together with Marsh, approached Servin and asked him what he was doing. Servin showed him 20
the thermometer and explained the situation, which Marsh did not consider to be a problem,
informing Servin that no further adjustments needed to be made. Within an hour or so, Servin
was summoned to the conference room, where he met with M Martin, Dramise, and Marsh. At
the onset of the meeting, M Martin told Servin he was being terminated for taking photos inside
the plant, which M Martin presumed were being sent outside the plant. M Martin had prepared a 25
termination notice, which he placed on the table in front of Servin, but never actually handed to
him.16 Servin explained that he had taken photos showing the temperature of the towels and that
he had texted them to Marsh, which Marsh confirmed. M Martin and Dramise then stepped
outside to discuss the situation, and they concluded that Servin had done nothing wrong under
the circumstances. They came back to the conference room and informed Servin that the 30
discharge had been rescinded, and directed him to return to work. (Tr. 98–104; 304–316; 343–
349; 540–544)
Neither M Martin, Dramise, nor Marsh could clearly articulate the reason why
Respondent had intended to discharge Servin on April 4, a discharge that was rescinded before it 35

14 This conduct is alleged in paragraph 5(i)(2) of the complaint. Paragraph 5(i)(1) of the complaint was withdrawn
by the General Counsel. It should also be noted that the factual allegations in paragraph(s) 5(f), 5(g), and 5(h) of the
complaint, which immediately precede this allegation, will be discussed in the following section, because they are
intimately tied to the allegations regarding the February 13 discharge of Arellano alleged in paragraph 6(a) of the
complaint.
15 Servin testified he had done this in the past, most recently at the end of March. At the time, Marsh had informed
him that he saw no problem with the temperature of the sheets, which he considered normal, and did not in any way
object to Servin taking photos in this manner. Indeed, chief engineer Sharron testified that this was a useful and
common practice among the engineers. (Tr. 304–306; 372–373; 541)
16 Servin took a photo of the termination notice a few minutes later when M Martin and Dramise stepped out of the
room to discuss the events, as discussed below. This document, introduced as GCX 11, shows a form signed by M
Martin advising Servin that he was terminated for violation of “company policy.” As discussed below, the discharge
was rescinded a few minutes later, and the termination notice was never handed to Servin.
JD(SF)–15–18
8
was implemented. Although M Martin testified that he told Servin he was violating company
policy for either using the cell phone or taking photographs with it inside company property, no
such rule appears to exist in the Employee Handbook (GCX 2). Moreover, Respondent knew
that Servin, as well as other engineers, had been taking photos inside the plant and sending these
to the chief engineer or engineering director(s) for quite some time, which M Martin admitted 5
had never been an issue (Tr. 98).17 Indeed, the record suggests that engineers and other
employees continue to use cell phones inside the plant to this date. In his testimony, however, M
Martin gave a hint of the real reason for this episode, testifying that it was “trust issue,” although
he never explained the reason for the sudden mistrust of Servin.
10
As discussed below, this event may ultimately have served as a type of “dress rehearsal”
for Servin’s eventual discharge. It is clear however, that contrary to what is alleged (in
paragraph 6(c) of the complaint, Servin was not discharged on April 4.
6. The termination of Arellano, Walker and Servin15
(a) Arellano18
Arellano was the second most senior engineer, hired by Respondent in the summer of
2011 shortly after it began operations.19 He was considered to be a “good worker” and “talented 20
troubleshooter,” as admitted by M Martin, and in August 2013 received the “Employee of the
Month Award.”20 As also admitted by M Martin, Arellano had no history of problems or
discipline at work. (Tr. 43–48; 488–490)
Arellano, who had previously worked at a unionized facility, contacted the Union in 25
July 2016 to express interest in having Respondent’s engineers organized. He arranged several
meetings between union representatives and his fellow engineering department employees over
the next several months. He also solicited authorization cards, which were signed and submitted
to the Union sometime in early January 2017. As described earlier, the Union filed a petition
with the Board shortly thereafter, and Union Representative E Martin paid Respondent a visit a 30
day or two later, to advise that the Union was organizing the engineers. As also discussed
earlier, shortly thereafter Sharron asked Arellano and the others whether they knew anything
about the Union, and on February 1, Dramise warned Arellano and Servin about the
consequences of the Union coming in (Tr. 496–501).
35
On the day of the Board election, Monday February 6, Arellano wore a union button to
express his support for the Union. As described above, the Union prevailed in the election that
day. On Friday February 10, Union Representative E Martin phoned Arellano, who was on his
day off, to come to the Union hall because they needed to speak. When Arellano arrived at the
union office, E Martin informed him that Respondent intended to discharge him for 40

17 Yet, curiously, Marsh testified that this activity by Servin was no longer seen as “appropriate,” because of
concern that this photos might be going “off site.” (Tr. 316)
18 As alleged in paragraph 6(a) of the complaint
19 The first one hired was Servin, as discussed below (Tr. 488)
20 The award (GCX 5) was discontinued shortly thereafter. Arellano’s employee evaluation in September 2013
(GCX 6(a) &(b)) also reflects his good standing at the time. For reasons that are not clear, Respondent apparently
ceased to perform yearly evaluations after this time.
JD(SF)–15–18
9
“misconduct,” related to an allegedly fraudulent worker’s compensation claim. Arellano had a
good idea what this was about, and wrote a statement about what had occurred at E Martin’s
request. There is no dispute that Respondent discharged Arellano on Monday, February 13, the
next day he came to work, as described below (Tr. 501–502). What follows is the account of the
event(s) that led to his discharge.5
According to Arellano, on the day in question he was working in the dry cleaning
department when Veronica Hernandez (Hernandez), an employee in that department, called him
to come over.21 Hernandez asked Arellano to open a bottle (or jug) of a chemical (stain cleaner)
used for dry cleaning purposes, which she apparently was having trouble opening. Arellano used 10
one of his tools to open the bottle, which he then handed to Hernandez. He noticed that one of
Hernandez’s eyes was very bloodshot, and asked what had happened to her eye. Hernandez said
that she did not know, that something had probably gotten into her eye and it was bothering her.
Arellano told her that if it occurred here (meaning at work), she should report it immediately to
the supervisor so they would have a record of it, even if she did not go to the doctor, that she 15
could go to the doctor later if it got infected. Hernandez responded that she did not know if it
had happened at work, and as the conversation ended Arellano told her that she should be using
her safety glasses (or goggles) because she was working with chemicals22 (Tr. 503–504).
Hernandez’s version of her conversation with Arellano is somewhat different than 20
Arellano’s, although it was not as detailed. Hernandez testified that on the day in question, about
2–3 hours after she arrived at work, she noticed her left eye was bloodshot, which was not the
case when she had arrived at work. Sometime later, she saw Arellano and asked him to open a
bottle of stain remover for her, which he did. Arellano noticed her bloodshot eye and asked what
had happened to her eye. Hernandez told him that she did not know. Arellano then told her to 25
inform her supervisor to send her to the doctor, and to say that it had occurred at work.
Hernandez told him she could not do that, because it “didn’t quite happen at work, exactly.”23
Hernandez admitted that once she explained to Arellano that the injury had not occurred at work,
he did not again suggest to her that she should say that it had, and that the conversation ended
then (Tr. 592–596; 602).30
Hernandez testified that later that morning, she reported her conversation with Arellano
to her supervisor, Cristina Linares (Linares), after Linares arrived at work. Linares later asked
her to write a statement about her conversation with Arellano. Hernandez wrote a statement in

21 Arellano did not testify on what date this occurred, but later testimony and documentary evidence indicates this
incident occurred on or about February 7, the day after the election (GCX 34).
22 Arellano explained that safety glasses, which Hernandez was not wearing, are often used by employees in the
plant because of potential exposure to chemicals, lint, metal shavings and other debris that is present in the
environment. He additionally testified that the company’s policy is that employees should report any injuries, even
if it’s only a scratch, so that they have documentation—which is consistent with Respondent’s employee handbook.
(Tr. 504–505)
23 Hernandez explained that she was concerned that if she went to the doctor, he would notice that there wasn’t any
“liquid” in her eye, apparently referring to a chemical substance, and that she would look like a “liar.” She also
explained that when they work with chemicals, they are supposed to use protective glasses and gloves, and that she
had not been using these because before this she had only been sorting clothing. Hernandez did not testify,
however, that she had explained this to Arellano (Tr. 595). Both Arellano and Hernandez testified that their
conversation was in Spanish. Indeed, Hernandez testified in Spanish through an interpreter.
JD(SF)–15–18
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Spanish, dated February 7, which she provided to Linares. The statement, in evidence as GCX
34(a), was translated by the Spanish interpreter (at my request) as follows:
“…this morning, I said hi to Adam, and he asked me about my eye. I answered, I did not
know what was happening. And he said to announce this to my bosses, to be sent to a 5
doctor, company doctor, because something had happened there with a chemical. But I
responded that nothing had happened here.” (Tr. 599–600)
I find there is little need to make a credibility finding with regard to the conversation
between Arellano and Hernandez, because while some of the details vary between the two 10
versions, they are consistent in their essence, also corroborated by the contemporaneous
statement provided by Hernandez at the time, to wit: Hernandez called Arellano over and asked
him to open a bottle of chemical (stain remover) for her; Arellano noticed Hernandez’s eye was
bloodshot and asked her what had happened, and Hernandez said she did not know; Arellano told
Hernandez to report the situation (or injury) to her supervisor(s), to get medical attention; 15
Hernandez then told Arellano that the injury had not occurred at work (or that she wasn’t certain
that it had); the conversation then ended.24
Linares, the dry cleaning department supervisor and Hernandez’s immediate supervisor,
testified that shortly after she arrived at work, Hernandez approached her and reported her 20
conversation with Arellano. Hernandez told her that Arellano had noticed her bloodshot eye and
had asked her what happened, and that she had told him she did not know because she had not
woken up with her eye like that. According to Linares, who also noticed Hernandez’s bloodshot
eye, Hernandez then said that Arellano had told her to say that her eye injury had happened at
work.25 Linares testified she concluded that Arellano had done “something wrong,” because he 25
should not be telling her employees to report something that had not happened at work, since
Hernandez was not sure it had happened at work.26 Linares emailed M Martin to report what
Arellano had done, and M Martin asked her to come to his office, where she explained to him
what Hernandez had said. M Martin asked Linares to get a written statement from Hernandez,
and she brought Hernandez to her office to ask her to give her statement. Hernandez provided a 30
short statement, in Spanish, in her own handwriting (Tr. 464–471; 475–476; GCX 34(a)).
M Martin testified that he made the decision to discharge Arellano solely based on what
Linares had informed him Hernandez had said to her, and Linares’ translation of Hernandez’s
written statement. He did not interview or speak with either Arellano or Hernandez, but did 35

24 To the extent that a credibility determination is necessary, however, I conclude that Arellano’s version was far
more detailed and plausible, and therefore more reliable. Additionally, I find that it is very odd, to say the least, that
Hernandez felt compelled to go out of her way to report this rather innocuous conversation to Linares, which raises
questions about her motivation. Arellano testified that Hernandez confessed to him that Linares had approached her
to ask her what she and Arellano had been speaking about, which would provide a feasible explanation that would
explain Hernandez’s conduct. Both Hernandez and Linares denied that Linares had first approached Hernandez,
however, but I find it unnecessary to resolve this conflict, as it ultimately will not alter my conclusions, as discussed
below.
25 This is not the way the conversation actually occurred between Hernandez and Arellano, according to their
testimony—and Hernandez’s statement.
26 Linares admitted that she had seen Arellano, as well as other engineers, wearing union buttons before this incident
happened (Tr. 484–485).
JD(SF)–15–18
11
review a security camera video, which had no audio of what was said, that confirmed that
Arellano and Hernandez had had an interaction on the day in question. He prepared and signed
Arellano’s termination form on February 9. On the termination form, M Martin checked 2 boxes
indicating the reason for Arellano’s discharge was “Violation of Company Policy,” and
“Insubordination.” Additionally, in the box providing for notes or details, M Martin wrote 5
“violation of hand book 5.1 workplace misconduct—see attached,” and immediately below that
wrote “Insubordination, dishonesty, willful or careless destruction of company assets” (GCX 7;
8; Tr. 49–53; 55–62; 68–71; ).27 Additionally, on Friday February 10, M Martin sent Union
Representative E Martin an email informing him, inter alia, that Respondent was terminating
Arellano for “misconduct.” In the email, he makes reference to an apparent meeting (with E 10
Martin) that took place the day before, writing as follows: “…[A]s discussed in our meeting
yesterday, we have a misconduct issue with Adam Arellano. We hold staff to a high moral and
ethical standard. We also have been the victim of untrue organizing techniques from other
unions such as repeated false OSHA claims, false workers compensation claims, false sexual
harassment claims, unjustified NLRB claims, and in this case we caught someone doing it and 15
are taking appropriate action.” (GCX 9(b)).28
Arellano testified that on Monday, February 13, a few hours after he had started his shift,
he was summoned to M Martin’s office, where he arrived along with Keith Marsh. M Martin
asked Arellano if he knew why he was there, and Arellano said yes, and then M Martin said that 20
he figured the Union had already told him. Arellano said he wanted to invoke his Weingarten
rights, and M Martin replied that his Weingarten rights did not apply because the decision to
terminate him had already been made, stating “you are being terminated.” M Martin then
handed Arellano a termination letter and termination form. He then handed Arellano a piece of
paper and pen and told him he could write a statement if he wanted, but Arellano declined, 25
stating that he did not want to write or sign anything without a union representative present. The
meeting ended at this point, and Arellano was escorted out (Tr. 507–510; GCX 8).29 M Martin’s
testimony about this meeting in essence corroborates Arellano’s account, stressing the fact that

27 M Martin testified that “insubordination” refers to Arellano’s alleged attempt to get Hernandez to make a false
“workers compensation” claim (Tr. 57), as also explained in a memo he wrote documenting the reasons for
Arellano’s discharge (GCX 14). He did not explain how the term “insubordination,” which means intentional
disobedience of a direct order, would fit Arellano’s conduct in this instance. In his memo, M Martin also explains
that the reference to the “destruction of company assets” was related to apparent sabotage of electrical systems in the
plant, for which he blamed Arellano. He admitted, however, that there was in fact no sabotage, but simply normal
mechanical failures that Arellano was not responsible for (Tr. 72; 77). It is notable that despite this admission, the
references to sabotage were never deleted from the termination notice.
28 M Martin testified that he had a face-to-face meeting with E Martin on February 9 to discuss several matters,
including his decision to terminate Arellano (Tr. 78–79). In his testimony, E Martin denied that he (or the Union)
was ever notified about Arellano’s termination prior to his discharge, and indeed he testified that he only found out
about it from Arellano on Monday, February 13 (Tr. 405). This testimony is contradicted not only by M Martin’s
testimony and the February 10 email referenced above, but also by Arellano, who testified that he was informed by
E Martin of his impending termination when they met at the union hall on February 10 (Tr. 502). Accordingly, I do
not credit E Martin’s testimony that the Union was never notified about Arellano’s discharge prior to its taking
place—and find his testimony about his conversations with M Martin during this period wanting.
29 Arellano admitted that when told that he could write a statement, he understood that he had already been
terminated (Tr. 508–509)
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12
he told Arellano that he had already been terminated when Arellano invoked his Weingarten
rights, and pointing out that he asked Arellano no questions during the meeting (Tr. 81–83)30
(b) Walker31
5
Charles Walker worked as an engineer for Respondent during the graveyard shift, and
had the lowest seniority among the engineers, having been the last one hired.32 Walker served as
the sole election observer on February 6, having volunteered at the behest of the Union.33 There
is no dispute that Respondent laid him off on February 15. Walker testified that on that day he
was called into a meeting with M Martin in the conference room, along with chief engineer 10
Sharron. According to Walker, M Martin told him he was being laid off, adding that he had
wanted to do that for a while. This came as a surprise to Walker, who had not heard anything
regarding possible lay-offs. Walker also testified that M Martin also mentioned he did not want
the Union to come in, but it had nothing to do with his lay-off . M Martin gave Walker a
termination form indicating that he was being laid off because his position had been eliminated 15
(Tr. 86–92; 264; 271; 570–580; GCX 15)).
Additional background information is necessary to understand the context of Walker’s
lay-off. On Wednesday February 7, the day after the election, M Martin sent an email to E
Martin stating as follows: “We want to make a schedule change and layoff. We need your 20
bargaining input before Friday. When would you like to meet?” E Martin responded via email
the following day, February 8, stating that before they could meet to bargain about the proposed
changes/lay-offs, the Union was requesting certain information, and listed 13 items it was
requesting. There were several other follow-up emails between them in the next 24 hours, with
M Martin in essence informing E Martin that Respondent needed to make the changes/lay- offs 25
and that Respondent would not be able to provide all the information requested on such short
notice, and M Martin responding that due diligence required the Union to have information
before they reached an agreement. The parties had a meeting on Friday February 9 to discuss
these matters (GCX-23 (a)-(d)).
30
Additionally, M Martin testified that the last lay off Respondent had implemented has
taken place a year earlier, in January 2016, but provided no details as to such lay-off, such as the
identity, classification or seniority of those laid off. He explained that typically 3 factors were
considered in determining whether lay-offs or reduction of hours in the engineering department
took place: productivity in pounds (of laundry); capital projects (typically meaning expansion or 35

30 Marsh, who was present at this meeting, testified he did not recall Arellano invoking his Weingarten rights or M
Martin telling Arellano to write a statement (Tr. 301–302). Needless to say, as will be discussed later, Marsh’s
recollection of many events was poor, and often contradictory, and I give his testimony little weight.
31 As alleged in paragraph 6(b) of the complaint
32 Very little background information is contained in the record regarding Walker because, curiously, he was not
asked to provide any during his testimony. Accordingly, much of the information about Walker came from others.
33 Initially, Walker did not seem to know for which side he had been an observer during the election, but eventually
testified that he had volunteered to be an observer because they asked for volunteers during a meeting at the union
hall (Tr. 577–578).
JD(SF)–15–18
13
installation of new equipment); and seasonal volume.34 Following the busy summer season,
Respondent typically experiences a reduction in demand (i.e., pounds of laundry handled), and in
the fall of 2016, such reduced volume called for either lay-offs or in a reduction of hours of work
of engineers. In the fall of 2016, Respondent, after consulting with its engineering department
employees—who expressed a preference for having their hours reduced—Respondent opted for 5
reduced hours. Nonetheless, M Martin further testified-- in very general terms-- that by
December 2016, “no one” was happy with such an arrangement and that there were gripes, and
therefore Respondent decided to lay off Walker rather than reduce hours. When pressed to
specifically name which engineers had complained about the reduced hours, however, M Martin
could only name one—Joe Tuttle (Tr. 90–91; 209–212).3510
(c) Servin
Servin was Respondent’s most senior engineer, having been the first one hired when
Respondent commenced operations in mid-2011. He testified that he became an active and 15
visible supporter of the Union by wearing a union button on the day of the election, displaying
union stickers on his tool box, and wearing a pocket protector with the union logo. Chief
engineer Sharron admitted knowing that Servin was a union supporter, and as discussed further
below in connection with a separate issue, the Union requested Respondent to grant Servin time
off without pay so he could be part of the Union’s bargaining committee during collective 20
bargaining negotiations, a request that was denied (Tr. 95–96; 189–190; 432; 527; 536–537).
Until about mid-February, Servin worked 4 days per week in the day shift during
weekdays, and would be off work 3 days a week including weekends. Following Arellano’s
discharge and Walker’s lay-off, things became a lot busier and hectic, and his schedule was 25
changed so that he would have to work Saturdays. During the weeks that followed, and until he
was discharged, he missed work on only two Saturdays due to his or family members’ health
problems (Tr. 371–372; 548).
It is undisputed that Respondent discharged Servin on May 2. According to M Martin, he 30
made the ultimate decision to discharge Servin, although the termination form given to Servin
was filled out and signed by Marsh.36 In that regard, M Martin testified that although he “did not
like” what Marsh had written in the termination form as far as the reason(s) for Servin’s
termination, he did not modify or change the form. He explained that Marsh had not fully
explained the reasons, which included multiple “no shows/no calls,” meaning that Servin failed 35

34 As will be discussed further below, however, M Martin later testified that Respondent’s in-house engineers do
not get involved in capital projects, since these projects are handled by engineers employed by an outside contractor
(AJ Industries) (Tr. 183).
35 M Martin had advised the Union by email on February 10 that it planned to lay-off two additional employees,
engineer Jaime Valdominos and utility engineer Leonardo Porter, in addition to Walker (GCX 24(b). These two
individuals, however, were not laid off. M Martin had also advised the Union that Respondent would be shutting
down the “graveyard” shift where Walker had been assigned, but that never came to be either, and explanation was
proffered in the record as to why these action were not taken.
36 The Termination Form generated by Respondent and given to Servin has boxes checked that indicate “Violation
of Company Policy;” “Poor Attendance/Absenteeism;” “Performance Below Standards;” and “Other,” with
“Solicitation/ Distribution” written in. Additionally, a box indicating that Servin was given “written or verbal
warnings” is also checked. In the space for Notes/Details, Marsh wrote: “Short Notice call off of scheduled work
day. Use of personal communication device in violation of company policies.” (GCX-18)
JD(SF)–15–18
14
to show up to work and did not call. He added that he had been receiving complaints from other
engineers about Servin, specifically from Joe Tuttle and Jesus (Chewy) Martinez, although he
did not specify the nature of their complaints, and admitted these were not documented
anywhere.37 M Martin also testified that Servin’s attitude had changed around February, and that
he was “cavalier” and did not wish to work on Saturdays. He added that he was not sure what 5
the reference in the termination form regarding the “use of personal communication device” was
about, and explained that the reference to “Solicitation” had to do with Servin having been
observed handing out union buttons.38 The main problem with Servin, he testified, was his
attendance, that he “stopped coming to work,” and did not call in sick when absent—or that the
reasons given for his absence were “false.”39 For example, he said he was going to the doctor 10
when in fact he did not go. All of this, M Martin testified, had been building for some time, and
the combination of things, including his attitude and “insubordination” (which was not listed on
the termination form, or explained), was “the last straw.” (Tr. 105–112; 119; 121–125; 127N129;
139–141)
15
Director of Engineering Marsh also testified about the reasons for Servin’s discharge,
which he documented in the termination form he filled out and signed.40 Contrary to M Martin,
he testified that CEO Joe Dramise made the decision to discharge Servin, which Dramise
transmitted to M Martin, who in turn transmitted the decision to him. Marsh filled out the
termination form based on “everything that could be brought together” about Servin, based on 20
conversations with M Martin, Sharron, and the HR department, which he summarized in the
form. According to Marsh, there were two reasons for Servin’s discharge, namely “short notice
call-off of scheduled work days,” and “use of personal communication device in violation of
company policy.” Asked to explain the first reason, he testified that Servin would call “within a
few hours of his starting time” to report that he would not be coming to work “which doesn’t 25
help us covering his shift.” He explained that while employees don’t get fired for doing this,
they get “talked to.”41 Marsh admitted that he had never spoken to Servin about this, but
believed Sharron had. The second reason for Servin’s termination, Marsh testified, had to do
with his use of the cell phone. Marsh testified that after the April 4 incident, in which Servin
was almost discharged after taking photos of the temperature of the sheets and texting the photos 30

37 These alleged statements by Tuttle and Martinez are technically hearsay, and although no objections were raised,
I give such evidence little weight. In that regard, I note that neither of them testified, even though they were both
employed by Respondent at the time. Moreover, no rationale was provided as to why Respondent would accord
more weight to the opinion of these two individuals than those of the many other engineers who apparently did not
complain.
38 M Martin testified that sometime after the election, on a date unknown, he observed Servin on the security
cameras monitors passing out union buttons, and he notified Marsh about it. He admitted, however, that Servin was
never warned or disciplined for this conduct. Moreover, M Martin admitted than on many occasions employees
have solicited others and sold them things like candy bars for fund raisers.
39 Curiously, however, M Martin admitted he was not sure what the policy was regarding how much advance notice
an employee must provide when calling in sick (Tr. 127). I would note that in Section 5.2 of Respondent’s
Employee Handbook (GCX 2), it states that employees should notify their supervisors as soon as possible, but no
later than the start of the workday. As an example of a “false” excuse by Servin for one of his absences, M Martin
cited the example of his daughter going into labor, which will be discussed below.
40 Notably, Marsh testified that he and chief engineer Gene Sharron were equal in their authority, and that he had
the authority to discipline, grant time off, assign work, make schedule changes and the like (Tr.290–291; 296–298)
41 Marsh testified that it was improper to call within a few hours before the start of a shift—even though this
practice appears to be consistent with, and allowed under, Section 5.2 of the employee handbook.
JD(SF)–15–18
15
to Marsh, he was told never to use his cell phone again during working time—for any reason.
Marsh testified Servin never texted him again after this occasion, and that he never personally
saw Serving using his cell phone again but that he saw Servin using his cell phone-apparently
texting—in a security camera video that was brought to his attention. Marsh added Servin was
also seen in a video handing out union buttons or other union paraphernalia, although it is not 5
clear if it was on the same video.42 This is why, Marsh explained, he provided the reasons he did
in the termination form. (Tr. 292–302; 304–315; 322; 325–334)
Chief engineer Gene Sharron, who was Servin’s immediate supervisor, testified that
Servin had a long-time practice of using his cell phone, during work, to text him photos of 10
broken equipment and other work-related problems, a practice that Sharron deemed useful.43
This practice continues to the present (presumably by other employees, since Servin was
terminated), and he has never been instructed by his superiors to have employees discontinue this
practice.
15
Sharron testified that he was involved in Servin’s termination. In that regard, by way of
background, he said that after February, Servin became “reclusive” and “clammed up,” and that
he had trouble completing his jobs.44 He said he had trouble with Servin’s attendance, in
particular with two incidents where he did not think Servin had complied with the company’s
“call-off” policy regarding providing notice before missing work.45 Sharron explained 20
Respondent’s policy regarding such “call-offs,” testifying that employees are expected to call in
sick a reasonable time before the start of the shift, in order to provide him the opportunity to find
a replacement. He defined “reasonable” as 12 hours prior to the start of a shift, but admitted that
he usually accepts calls up to 1 hour before the start. With regard to the two incidents where
Servin allegedly violated Respondent’s policy, the first one involved Servin’s daughter giving 25
birth. On that occasion, according to Sharron, Servin texted him on a Friday to inform him that
his daughter was going into labor, and he would therefore not be there the next day.46 Sometime
on Saturday, he and Servin spoke on the phone, and Servin informed him that it had been a false
alarm, that his daughter had not given birth after all. Servin had provided notice over 11 hours
before the beginning of his 8 a.m. shift, so Sharron admitted that initially he did not think the 30

42 Notably, Marsh admitted that other employees that may have been observed in the security videos using their cell
phones were not talked to or disciplined (Tr. 322), and also admitted that other employees that may have been
observed distributing items other than Union materials would not be disciplined, because such conduct would not be
“held in the same weight” (Tr. 333).
43 Sharron testified that as chief engineer he had the authority to discipline, schedule employees, including the
granting of over-time, and to assign them work. (Tr. 361–363)
44 I believe it is worth noting the events that were occurring at the time, in order to provide some context regarding
Servin’s alleged change in attitude. In early February, the engineers voted in favor of being represented by the
Union. Within 1 week of that event, two of the Union’s supporters, Arellano and Walker, had been terminated,
which as Sharron admitted caused a shortage in manpower that forced him to juggle engineers’ schedules—and
presumably increased their workloads, as testified by Servin. Servin’s schedule went from 4 days a week with
weekends off, to 5 days a week with work on Saturdays. Servin testified that had been promised, as the most senior
engineer, that he would not have to work on weekends. (Tr. 373–374; 377; 532)
45 Sharron repeated an allegation, also testified to by M Martin and Marsh, that during the period from February to
early May, Servin missed work about half of the dozen or so Saturdays he was scheduled to work. Servin testified
that he only missed two of those Saturdays, as will be discussed below. No payroll evidence was introduced in the
record to support the allegation that Servin missed work on half a dozen Saturdays, as claimed. (Tr. 376–377; 548)
46 The text shows it was sent on Friday April 21 at 9:22 p.m. and states: “My daughter just went into labor on my
way to hospital to grab my grandson it’s gonna be a long night I won’t be making it in the morning” (GCX 10)
JD(SF)–15–18
16
notice had been improper. Apparently on the following Monday, after Sharron thought about it
some more, he came to the conclusion that Servin’s absence was part of what he believed to be a
pattern of Saturday absences, and therefore came to the conclusion that Servin’s notice had been
improper. He testified he had assumed that Servin had spent Friday night at the hospital, but as it
turned out, Servin stayed at home to watch his grandson, while his wife went to the hospital to 5
attend to their daughter.47 Sharron therefore came to believe that Servin should have come to
work on Saturday, and therefore the absence was not an excusable one.48 According to Sharron,
he spoke for almost an hour with Servin on Monday about this incident, and summarized the
hour long discussion by testifying that Servin simply did not want to work Saturdays, because he
never had to.10
The next incident that involved an “improper” call-off, according to Sharron, occurred
the following week. On Thursday, April 27 at 5:43 a.m., Servin sent Sharron a text with the
following message: “My ear is killing me didn’t sleep last night headed to my doctors this
morning at 8:30am don’t know when they will be able to see me will be in asap.”49 At 8:54 a.m., 15
Servin sent a follow-up text with the following message: “I’m not gonna make it today or will
bring a note from my doctors.” At 2:46 p.m., Servin again sent Sharron another text as follows:
“Doctor putting me off till Tuesday will bring my note when I come in.” The next day, on
Friday April 28 at 8:39 a.m., Sharron sent Servin the following text message: ‘Where are you
your supposed to be here.” At 9:18 a.m., Servin texted the following response; “Doctor has me 20
off till Tuesday morning.” Three minutes later, at 9:21 a.m., Sharron responded: “That’s not
how I read it.” A few minutes later Servin replied: “Sorry for the miss understanding blame it on
all the meds I’m on lol.” Sharron testified that he had interpreted the message sent Friday that
“the doctor is putting me off until Tuesday…” to mean that the doctor would not be able to see
Servin until Tuesday, and accordingly he was expected to be at work the next day, on Friday 25
(4/28), hence his text messages to Servin on Friday morning. Yet, he admitted that when Servin
came in on Tuesday, May 2, bearing a doctor’s note dated April 27 stating that he had been ill
and had been excused from work until May 2, the note corrected his “misunderstanding” of the
incident. Nonetheless, Sharron testified that he still believed the “call-off” by Servin was
improper because it was reported to him by two employees (Tuttle and Martinez), that Servin 30
had attended a union meeting on the afternoon of Friday, April 28. Sharron testified that
Servin’s alleged attendance at the union meeting made this call-off (and, presumably, the
doctor’s excuse) improper. As indicated above, Respondent discharged Servin that same day,
Tuesday May 2 (Tr. 373–390; GCX 10; 36(a)-(c)).
35
Credibility Resolutions
First, some general principles that I have used in assessing witnesses’ credibility. In
assessing credibility, I must look to a number of factors, including but not necessarily limited to,
inherent interests and demeanor of witnesses, corroboration of testimony and consistency with 40

47 Yet, Servin’s text stated that he was on his way to the hospital to pick up his grandson, which implies that he was
going to be taking care of him Friday night while his daughter was in the hospital. Contrary to what M Martin
suggested in his testimony, Servin did not provide a “false” reason for his Saturday absence.
48 Yet, Sharron admitted never telling Servin that this “call-off” had been improper or warning him not to do this
again. (Tr. 382)
49 Sharron confirmed that Servin had a history of chronic ear infection(s), for which he had previously sent Servin
home because of extreme pain/discomfort. (Tr. 383)
JD(SF)–15–18
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admitted or established facts, inherent probabilities, and reasonable inferences that may be drawn
from a record as a whole. Hill & Dales General Hospital, 360 NLRB 611, 615 (2014); Daikishi
Corp., 335 NLRB 622, 633 (2001), enfd. 56 Fed Appx. 516 (D.C. Cir. 2003). Moreover, in
making credibility resolutions, it is well established that the trier if fact may believe some, but
not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2 Cir. 1950).5
First, I note that I found the testimony of Arellano, Servin and Walker to be
straightforward and reliable, with few if any contradictions or inherently untrustworthy
assertions. They appeared to be striving to be candid, even admitting certain things that might
tend to be detrimental to their interests. This is particularly true of Arellano and Servin, whose 10
testimony was far more detailed and extensive that Walker, whose testimony was brief—and not
subject to cross examination, probably because there was little to cross-examine him about.
Arellano, for example, admitted telling Hernandez to report her apparent injury as having
occurred at work—something he apparently believed at the time (because, as discussed infra, he
had good reason to). He also admitted that when M Martin gave him a piece of paper and pen to 15
write a statement at their meeting, in his mind he already had been terminated—an admission
that may be prejudicial to his asserted Weingarten rights. Likewise, Servin admitted being
exasperated by his new schedule that required him to work Saturdays, which he had never had to
do, and admitted having difficulty completing jobs on time after his workload increased in the
wake of Arellano’s and Walker’s termination, something that might support the asserted reasons 20
for his dismissal.
On the other hand, I found the testimony of M Martin, Marsh and Sharron to be
contradictory of each other’s, and not reliable for a variety of reasons. Marsh, in particular,
appeared uncomfortable, and struck me as being cagey, appearing to be attempting not to admit 25
or acknowledge anything that might be prejudicial to Respondent. He frequently responded with
phrases like “I don’t recall,” or “it’s possible,” in an obvious attempt not to be pinned down. For
his part, M Martin was plainly contradictory at times. For example, he initially testified that he
made the decision to terminate Servin (Tr. 106), then several weeks later, when his testimony
resumed, testified that he did not play a “large part” is Servin’s termination, instead suggesting 30
that Marsh was the principal actor, who came up with the reasons. He then suggested it was a
“team” decision between him, Marsh and Sharron (Tr. 139). M Martin also repeatedly employed
the term “insubordination,” among others, to describe the alleged misconduct that justified the
discharge of Arellano and Servin, when the record is devoid of any evidence of insubordination
on their part. He also testified that Servin had provided “false” excuses for his absences, 35
asserting that Servin had said he was going to the doctor but in fact did not go—something
which the record shows is simply inaccurate. Marsh, on the other hand, testified that it was
Dramise who issued the directive to discharge Servin (Tr. 317), and insisted that Servin’s use of
his cell phone was one of the main reasons he was discharged, testimony that was contradicted
by M Martin and Sharron. Indeed, M Martin testified that he disapproved of the termination 40
language notice making reference to Servin’s use of his cell phone, and Sharron testified that he
had no problem with his practice of texting photos of defective or problematic items inside the
plant. Of the 3, Sharron struck me as the one who was the most candid, but his explanation as to
why Servin’s advance “call-offs” were defective or not acceptable strained credulity and were
unconvincing.45
JD(SF)–15–18
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In view of the above, I credit the testimony of Arellano, Servin and Walker over the
testimony of M Martin, Marsh or Sharron, to the extent there is conflict—which in many
instances is not the case. Indeed, as more thoroughly discussed below, the shifting and
contradictory rationales by Respondent for the termination of the 3 employees, independent of
credibility, is a strong indication of pretext.5
7. The Union’s request for information
The complaint alleges that the Union requested certain information from Respondent on 3
separate occasions, on February 6, February 13 and February 18.50 There is no true dispute that 10
the Union requested the items listed in the complaint, which was done via emails, but rather the
dispute centers on whether Respondent provided the information requested, whether the
information existed or was in Respondent’s possession, or whether the Union was legally entitled
to the requested information.51 Thus, on February 6, via email, the Union requested, inter alia,
the following information:15
(1) A list of current bargaining unit employees including their…date of completion of
any probationary period.
(2) Copies of all manuals, training materials, documentation, memoranda,
communications and policies related to the operation of any work distribution 20
system currently in use.
(3) A list of employees who have had schedule changes, including dates and job
classifications at time of schedule changes.
(4) A copy of all policies or procedures with respect to employment of employees.
25
On February 13, via email, the Union requested, inter alia, the following information:
(5) A copy of all training records for Mr. Arellano.
(6) A copy of Mr. Arellano’s employee evaluations.
(7) Copies of all evidence, written statements, video/audio recordings used to 30
determine to terminate Mr. Arellano’s employment.
On February 18, via email, the Union requested, inter alia, the following information:
(8) Information responsive to the question of what was behind Respondent’s decision 35
to lay-off employees and change employees’ schedules.
(9) Evidence to support the claim that business need requires layoffs/schedule changes.

50 Complaint paragraphs7(d), 7(e) and 7(f), each with subparagraphs listing the requested information.
51 In its answer, Respondent does not dispute that the information described in the complaint was requested, but
appears to object on the basis that the language describing the information sought is not complete or fully accurate,
thus asserting repeatedly the information sought (via emails) “speaks for itself.” The General Counsel, however, did
not plead the entire list of requested items verbatim, apparently because Respondent did provide some of the
information sought or because such information or materials did not exist, so in its pleadings General Counsel only
listed the information that it alleges was unlawfully withheld. Accordingly, I will only describe, and address, the
items alleged in the complaint, as described below..
JD(SF)–15–18
19
(10) Copies of all outside contractor’s invoices for maintaining/installing/servicing
laundry equipment in the plant for the past 5 years. 52
It is important to note the circumstances underlying these information requests. Shortly
after the Union prevailed on the February 6 election, M Martin notified the Union, via email to 5
E Martin, that Respondent planned to change the work schedules of its engineering department
employees, and planned to discharge Arellano and lay off Walker. In his email, M Martin
informed the Union that Respondent’s operational needs necessitated these urgent schedule
changes, which he suggested had been held in abeyance pending the election, and requested to
meet within the next couple of days to negotiate about these changes, as well as the termination 10
of Arellano. Over the course of the following days, as the situation evolved, the Union
responded, via emails from E Martin to M Martin, that it needed the information requested so
that it could properly negotiate about these issues (GCX 21; 22; 23).
Item 1, above (“A list of current bargaining unit employees including their…date of 15
completion of any probationary period”), was requested by the Union on February 6. M Martin
testified that Respondent’s employees have a probationary period, but that Respondent does not
record—or apparently keep track of—when such probationary periods end. Apparently,
however, Respondent did not inform the Union that it does not record this information, simply
remaining silent and not responding to this request. Respondent, however, did provide the Union 20
with a copy of the engineering department employee census, via email on February 10 (Tr. 146–
147; 254; 418; GCX 23–24).
Item 2, above (“Copies of all manuals, training materials, documentation, memoranda,
communications and policies related to the operation of any work distribution system currently 25
in use.”), was requested by the Union on February 6. In response to the Union request for
manuals, Respondent asserted, via email, that these were too voluminous to provide, but never
offered an alternative means of viewing or summarizing the information sought.53 The only item
Respondent provided in response to this request was a copy of the Employee Handbook (GCX 2;
24(a); Tr. 147-; 254; 418). With regard to the Union’s request for training materials, M Martin 30
initially testified that Respondent did not keep good training records, then in apparent
contradiction testified that it kept no such records, and so informed the Union. M Martin
testified that he informed the Union Respondent did not keep those records based on information
he received from Marsh and Sharron that such records were not kept. Since informing the Union
of that fact, however, M Martin admitted that Respondent has discovered a number of these 35
training records but, notably, has failed to inform the Union of such discovery, or turned these
records over to them (Tr. 152–153; 217–220). 54 This response, or lack thereof, is apparently

52 I have listed the Union’s information requests at issue in numerical order (1-10) for ease of referral when I
discuss these requests below.
53 The Union apparently never demanded access to Respondent’s facility for the specific purpose of reviewing these
manuals, but did request access for the purpose of viewing the break room used by the engineers, which was closed
by Respondent after the election, access which was denied, as discussed below.
54 M Martin’s rationale for not revealing to the Union that Respondent had later found training records—after
telling the Union these records did not exist—was that since the Union had not repeated its request, he assumed they
were no longer interested (Tr. 154–155). I find this explanation to be disingenuous at best, and one that in my view
further strains M Martin’s credibility.
JD(SF)–15–18
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also applicable to Item 5 (“A copy of all training records for Mr. Arellano.”) requested by the
Union in the wake of Arellano’s discharge (Tr.416–417; 421).
Item 3 (“A list of employees who have had schedule changes, including dates and job
classifications at time of schedule changes.”) was requested by the Union on February 6. With 5
regard to this request, M Martin testified that Respondent had no “written policies” in place
regarding schedule changes, rather asserting that Respondent’s “practice” was to allow
employees to bid for shifts in accordance to seniority. Nonetheless, on February 10, via email,
M Martin sent the Union a number of documents that appears to be responsive to this request,
including the current and proposed engineering schedules as well as the time records (or time 10
card records) of all engineering department employees going back several years, records which
amounted to a total of about 1300 pages, and from which any schedule changes were difficult—
if not impossible—to discern (RX 14; 174–175; 271; 418).55 It appears, however, that
Respondent complied with this request—and the General Counsel did not meet its burden to
establish that Respondent did not comply.15
Item 4 (“A copy of all policies or procedures with respect to employment of employees.”)
was requested by the Union on February 6. In response to this request, Respondent only
provided the Union with a copy of its employee handbook (GCX 2), even though the handbook
makes reference to other separate documents, which M Martin admitted were in Respondent’s 20
possession, such as benefits. M Martin testified that he did not recall whether he had provided
the Union with these separate documents, but E Martin testified that Respondent had not
(Tr.147–150; 418–419) I therefore conclude that Respondent did not provide the document(s).
Items 6 (“A copy of Mr. Arellano’s employee evaluations”) and 7 (“Copies of all 25
evidence, written statements, video/audio recordings used to determine to terminate Mr.
Arellano’s employment”), which were requested by the Union on February 13, were not
provided by Respondent to the Union, according to the testimony of E Martin. M Martin, after
initially hedging in response to questions as to whether these documents had been provided,
finally admitted he did not know. He admitted, however, not providing the Union with a copy of 30
Hernandez’s statement regarding Arellano’s conversation with her which led to his discharge.
E Martin also testified that Respondent had not provided the Union with a copy of the video of
Arellano and Hernandez interacting with one another on the day in question, or otherwise
allowed the Union to view it, a video that M Martin admitted he had watched prior to
discharging Arellano. Likewise, E Martin testified, without contradiction, that Respondent did 35
not provide the Union with Arellano’s evaluation(s) or any other of the requested documents
related to his discharge (Tr. 156–157; 417; 422). I accordingly conclude that Respondent did not
provide the Union with the above-described information.

55 The contents of the numerous emails that were exchanged during these periods between M Martin and E Martin,
which contained some of the information requested by the Union, will be discussed in more detail below, in section
9 (“The changing of employee work schedules”), emails which were placed into evidence by the General Counsel.
Unfortunately, as discussed below, these exchanges, which contain a treasure trove of information about the parties’
approach and attitude toward the information requested and about bargaining, were largely ignored during testimony
by both sides, but particularly by the proponent of these documents, the General Counsel.
JD(SF)–15–18
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Items 8 (“Information responsive to the question of what was behind Respondent’s
decision to lay-off employees and change employees’ schedules”), 9 (“Evidence to support the
claim that business need requires layoffs/schedule changes”) and 10 (“Copies of all outside
contractor’s invoices for maintaining/installing/servicing laundry equipment in the plant for the
past 5 years”) were requested by the Union on February 18. According to the uncontroverted 5
testimony of E Martin, Respondent did not provide the Union with any information or
documents with regard to its justification or need for the lay-off(s) or schedule changes, nor
provided the Union with any copies of or information about the contractor invoices requested
(Tr. 421–424).56 In light of the above, I conclude that Respondent did not provide the Union
with the information described above.10
8. The closure of the engineer’s break room
Paragraph 6 (f) of the (amended) complaint alleges that about February 7, Respondent
closed the engineers “lunchroom” in retaliation for its employees’ union activities, and paragraph 15
7(i) alleges that it did so without notifying or bargaining with the Union. Although Respondent
specifically denied these allegations as pled, the following facts are not in dispute:
 For a number of years the engineering department employees took their breaks
(including meals) in a small break room in a separate part of the plant, which was 20
primarily, if not exclusively, used by these employees, and where they kept their own
equipment such as a coffeemaker and microwave oven;57
 This break room was closed/changed on February 7, with emails exchanged between the
Union and Employer about such change on this date;58
 Respondent did not notify or negotiate with the Union prior to closing the break room;25
 At some point after it was closed, the break room was remodeled and turned into a parts
room, with shelves and manuals.
In dispute is whether the closure of the break room had long been planned and announced
as part of a remodeling of the plant, a remodeling that included a new large break room intended 30
by Respondent to be used by all employees, including the engineers, and thus whether
Respondent was obligated to bargain with the Union before it closed the break room.59

56 As will be discussed below in connection with a separate allegation of the complaint, there is no dispute that
Respondent has regularly, and for years, used an independent contractor named AJ Industries to perform certain
engineering tasks at Respondent’s facility.
57 The break room already had a refrigerator and sink, as well as tables and chairs which were provided by Dramise.
It is not clear whether this break room was ever officially or formally designated by Respondent as the “engineers
break room,” but is not disputed that this room was or became the de facto engineer’s break room by custom or
practice. Other than engineers, no other employees used this break room except drivers who would occasionally use
it.
58 E mails between the Union and Respondent dated February 7 discuss the closing/ changing of the break room,
which clearly indicates that’s when the change occurred (GCX 27(a)-(c), as corroborated by the testimony of
Arellano and Servin. “Before” and “after” photos of the break room were introduced, with the earlier photo (GCX
29(a)& (b)) showing what the break room looked like before the change, and a photo of it later (GCX 39(a) &(b)),
showing an empty room. As discussed below, this space was later turned into a “parts” room with shelves.
59 In order to avoid confusion, this newly built break/lunch room, which by all accounts was finished in late 2016 or
by January 2017, will be called the “lunch room.”
JD(SF)–15–18
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Arellano testified that sometime around 2012, after a prior tenant had vacated that part of
the building, Sharron told the engineers that they could use that room—which already had a
refrigerator and sink—as their break room. Engineers took breaks in this break room, where
they had privacy and could avoid being called to the floor to do a job during their breaks.
Arellano had his own microwave and coffee maker there, and Servin had placed a toaster oven 5
there, and there were tables and chairs. On February 7, there was a notice on the chalkboard
informing the engineers that the break room was closed. According to Arellano, he was never
notified before February 7 that there were plans to close this break room.60 He also testified that
Respondent had opened a new break room/ lunch room for employees sometime in January (Tr.
510–516; GCX 29(a)(b)). Servin testified that the day after the election, which would be 10
February 7, the tables and chairs were removed from the break room, and a message on the board
informed the engineers that they should use the (new) lunch room. According to Servin, only
engineers, and on occasion the drivers, would use the break room, which he and the other
engineers preferred because it was located in a remote part of the plant where they would not be
bothered. Photos taken by Servin about 2 months after the election (GCX 39(a) & (b)) showed 15
an empty room, without the cabinets, refrigerator and sink that were present on the February 7
photos (GCX 29 (a) & (b)), but by the time he was discharged in early May, shelves and manuals
had been placed there (Tr. 555–559).
M Martin testified that the closure of the break room had been planned for some time, as 20
part of the expansion that had resulted in the building of the new lunch room, as the February 7
exchange of emails with the Union (GCX 27) describe. He also attempted to email the Union the
plans (or blueprints) of the expansion plan, which apparently showed the long- planned
elimination of the break room, with the file was too large to email (GCX 28)61 He further
testified that it had been “common knowledge” for a while that the engineers break room would 25
be eliminated, and that such plans had been orally communicated to the engineers by the chief
engineer(s), but admitted no written notices had been posted or distributed. The plan had been to
turn the break room into a parts room, since that room was located in the parts area of the
facility. Although the new lunch room was finished and ready to use in late 2016, the reason
they waited until February to close the engineers break room is that they had not received the 30
shelves and other parts needed for the conversion, which arrived in early February. Additionally,
M Martin testified, they were concerned about doing it just prior to the election, because of the
impact that might have on the proceedings. During M Martin’s testimony, emails between him
and Marsh were introduced as an exhibit, in which M Martin asks Marsh, on February 8, if he
has any documentation showing that the closure of the break room had been discussed before the 35
advent of the Union’s petition. After some delay, Marsh attached handwritten notes of a meeting
dated January 11, in which the subject of the closure of the break room was apparently discussed

60 I would note, however, that E Martin admitted that he had been informed by some of the employees that they had
been informed, prior to the advent of the Union, that this room was going to be “remodeled” at some point, if not
closed. (Tr. 428–429)
61 The February 10 email described how the plans were posted on the wall of the facility in 2016 showing the
intention to consolidate the then-existing break rooms/lunch rooms into a the large lunch room that was finished in
late 2016. The email also makes reference to a visit to the facility the by E Martin with fellow Union Representative
Jose Soto the day before (February 9), during which they were shown the new lunch room and the old engineers
break room that had been closed (GCX 28)
JD(SF)–15–18
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(GCX38(a)-(c)); Tr. 157–173).62 Marsh testified about the break room very briefly, stating that
as of February 7, the break room was “transitioned” for another purpose, as had been planned
since at least early January, and possibly before, in light of the construction of the new lunch
room, as a result of which the break room was no longer needed. Marsh further testified that he
believed the break room was converted into new use in February or March, some 3 months after 5
the employees had been informed about it (Tr. 335–336). Dramise testified that Respondent had
planned a large expansion of its facility since 2011, but did not have funding until 2015, at which
point the expansion project began. As part of this expansion, a large single employee lunchroom
was built, which eliminated the need for several “temporary” break rooms that had been in
existence, including the engineers break room. Sometime in February, Dramise testified, the 10
conversion of the engineers break room into a parts room began, as had been planned (Tr. 350–
353).
Finally, photographs and uncontroverted testimony show the new lunchroom to be about
5 thousand square feet, with TV monitors, lockers, vending machines and other amenities, and 15
was built at a cost of about $900,000, according to M Martin. As in other parts of the facility,
there are security cameras in the new lunchroom, which Servin testified was one of the reasons
engineers did not want to use it, since their union activity might be observed.
In light of the above-discussed evidence, and taking into account inherent probabilities 20
and the credibility of the witnesses, I am persuaded that the evidence supports an inference that
Respondent had planned to eventually close the engineer’s break room. In reaching this
conclusion, I credit the testimony of M Martin, Marsh and Dramise in that regard, and note that
E Martin admitted he had been informed by employees that Respondent had informed them the
room would eventually be remodeled. I also note that Respondent had embarked on an 25
expansion plan which included building a large employee lunchroom, which opened in late 2016,
and the closure of the smaller break rooms that had existed up to that point that were used by
rank and file employees.63 Based on all of these factors, I believe it reasonable to conclude, as
stated above, that Respondent would have eventually closed the engineer’s break room. I have
twice used the word eventually in a deliberate manner, because while I am persuaded that 30
Respondent had planned to close the engineer’s break room, I am not persuaded that it had
planned to close it, as it did, on February 7, the day after the election. The timing and abrupt
manner in which the break room was closed, with no advance notice to the engineers to remove
their personal appliances in the room—such as toaster ovens, microwave ovens, and coffee
makers—strongly suggests that it was a hasty decision intended to send a signal that Respondent 35
wasn’t pleased about the election results and that there was a price to be paid for supporting the
Union.64 In so concluding, I note that photos introduced in the record indicate that this space sat

62 The attached handwritten notes by Marsh are cryptic. Under a heading of “Project Meeting 1/11/17” there are
hand written notes that touch upon several topics, not relevant here. One of the entries, however, states “lunch
room—remove.” It is not clear who was present at this meeting, or what the cryptic entries signify, and Marsh did
not testify about it.
63 I used the term rank and file deliberately, because the General Counsel points out that a small break room in the
office area of the dry cleaning department was apparently left untouched, as depicted by a photo introduced in the
record (GCX 30). This office, however, was used by managers and supervisors, not rank and file employees.
64 As described earlier, engineers went to the break room on February 7 and found that the tables and chairs, which
belonged to Dramise, had been removed, and a notice in the board informing them that it was closed and to use the
new lunchroom.
JD(SF)–15–18
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empty and unused for the next 2 to 3 months, even though Respondent’s witnesses testified that
they had received the shelves and other items it had intended to install there to turn that space
into a parts room. I sum, these circumstances persuade me that Respondent’s decision to close
the break room precisely on February 7 was reached in very short order and had a retaliatory
motive.5
9. The changing of employee work schedules
The complaint alleges that about February 18, April 7, and July 5, Respondent changed
bargaining unit employee work schedules, allegations that Respondent essentially admits in its 10
answer, and which the evidence supports.65 In dispute is whether Respondent implemented these
changes without notifying and bargaining with the Union.
With regard to the schedule change that occurred about February 18, the General
Counsel, in his post hearing brief, generally refers to the exchanges of emails between the parties 15
that occurred prior to this change, without discussing the specifics of such communications, and
generally asserts that Respondent did not bargain with the Union about this change.66 A close
reading of the numerous emails that were exchanged between the parties during this period,
however, reveals the story to be far more complicated than implied by the General Counsel’s
bare assertions.20
On February 6, presumably after the results of the election were in, E Martin handed
M Martin a list of information requests it needed for bargaining purposes.67 On Tuesday,
February 7, M Martin sent E Martin an email stating that Respondent wants to make a “schedule
change and layoff,” and requests to meet for the Union’s “bargaining input” before Friday 25
(February 10). On February 8, at 1:15 p.m., E Martin responds via email, requesting that
Respondent should provide a list of 13 items before meeting to discuss layoffs or schedule
changes. The list is very similar to the list that had been submitted to Respondent on February 6,
with some modifications. M Martin responds at 1:43 p.m., protesting that the list is an
“incredible” list to try to put together before a meeting “tomorrow,” adding that Respondent 30
would be happy to meet these items, but cannot dedicate all its resources to accommodate the
Union’s “agenda.” At 2:08 p.m., E Martin responds, indicating that the Union would be happy
to meet to discuss these issues, but cannot “conclude any negotiations” without the requested
information, and suggests that their meeting be postponed until the information is provided. At

65 Complaint paragraphs 7(j),7(l), and 7(m). In its answer, Respondent admits that such changes occurred and were
implemented on February 15, April 8, and July 5.
66 In essence, the General Counsel appears to adopt the position that the numerous emails contained in exhibits
GCX 22, 23, 24 and 25 “speak for themselves” and therefore there is no need to discuss or dissect their significance.
I beg to differ. While the emails may speak for themselves, their language may be heard and interpreted differently
depending on the listener. Then again, Respondent did not much discuss these exchanges either, which I believe to
be an error on both sides.
67 This list of 13 items, as E Martin testified, was a “generic” information request that the Union typically requests
from employers in order to start the collective bargaining process. Indeed, its “cut and paste” nature is illustrated by
the fact that item 13 asks for copies of all collective bargaining contracts in effect between “Cosmopolitan Las
Vegas” (sic), obviously the wrong employer, and any other union (GCX 21(a) & (b). I would note than in a follow-
up email dated February 8, M Martin informs E Martin, rather disingenuously, that given the reference to the
Cosmopolitan in the last item, Respondent assumed that this request was not meant for Respondent, and therefore it
was “disregarded” (GCX 22(a).
JD(SF)–15–18
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5:57 p.m. M Martin responds, indicating that Respondent is a ‘service” business and needs to
react to changes quickly, adding that these proposed changes had been delayed during the
organizing campaign, and its need to make the changes in order to “function.” He indicates that
the information requested cannot be provided in less than 24 hours, but would be working on
obtaining it, and adds “if you do not want to bargain over the scheduled changes land layoffs let 5
me know.” The email concludes that “delaying tactics that hurt our business will not be
acceptable to us,” and adding that Respondent wants to come to an agreement quickly. The
following morning, on February 9, E Martin replies that the Union was willing to discuss any
schedule changes or possible layoffs, but cannot concede to agree to anything without due
diligence—and that without the requested information, and the time to review it, it “could not 10
commit to an agreement.” The email also adds that the Union was willing to come to “an
agreement” quickly and in that interest it had provided three dates for “contract negotiations.”68
Finally, the email confirms their meeting that afternoon at 4:30 p.m. to discuss the schedule
changes and layoffs, as well as the break room issue. M Martin responded that he would be at
the meeting. (GCX 22; 23)15
The parties apparently met later that day, on February 9, as can be discerned from
communications that followed, although there is surprisingly little—if any—testimony as to what
occurred at this meeting, which apparently lasted nearly 4 hours, as described by M Martin in a
later email.69 On February 10 at 10:10 a.m., M Martin emailed E Martin, informing him that 20
Respondent was gathering the information requested, and attaching the current and proposed
schedules, with explanations as to what is prompting the changes and how layoffs have occurred
in the past, and a list of employees affected, including Arellano (who Respondent explains is
being discharged, and the reasons therefor), Walker, and other named employees.70 The email
also indicates that the only manner in which past schedule changes, which Respondent did not 25
keep track of, can be ascertained is by looking at timecards.71 Finally, in the email M Martin
requests input from the Union before the end of the day Monday (February 13), so that the
employer can start preparing for the proposed scheduled changes slated for February 18. It also
requests the Union to inform Respondent what else it needed. At 1:28 p.m., E Martin responded
that the Union would be reviewing the provided information but was also waiting to receive “the 30
full list we have asked for” (presumably referring to the list of 13 items previously discussed),
adding that it would respond in a timely manner as soon as possible. (GCX 23; 24)
The Union did not respond by the end of the day Monday, February 13, as requested, to
M Martin’s question about what additional information it needed regarding the proposed 35

68 I would note that at this point the parties appear to be talking at cross-purposes, with Respondent wanting to
negotiate about the schedule changes/layoffs, while the Union appears to be beginning to focus on negotiations for a
collective-bargaining agreement.
69 In his post hearing brief the General Counsel indicates this meeting occurred on February 10, which is plainly
incorrect, and is indicative of the casual manner this particular issue was handled—by both sides, but particularly by
the General Counsel, who bears the overall burden of proof. Indeed, the only testimony as to what may have
happened at this meeting came from M Martin, who simply stated that the parties “weren’t getting anywhere,”
although that might also be a summation of the over-all negotiations about the proposed schedule change.
70 The email also indicates that Arellano’s discharge was discussed during the meeting on February 9, among other
topics.
71 The Union admitted that Respondent produced the timecards (RX 14), although it is not clear when, and that it
could not discern how schedule changes were made in the past based on those cards.
JD(SF)–15–18
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schedule changes and layoffs. Instead, 5 days later, on Friday February 17, at 4:21 p.m., E
Martin emailed M Martin stating that the Union “has been informed that Apex Linen is
proposing changes to the bargaining unit member’s work schedules,” and demanding that
Respondent do not implement the new schedule until they have had an opportunity to bargain
over—and agree to—such changes.72 “Pursuant to that end,” the Union then requests 5
Respondent to provide additional information as requested in a list of 7 items specifically
described in the email. About 10 minutes later, at 4:32 p.m., M Martin responded via email that
he had sent that information the previous Friday, had asked for comments by Monday February
13, and had received no response from the Union. E Martin responded via email at 4:43 p.m.,
stating “You have previously supplied incomplete information and as I stated in reply we would 10
review and be open to negotiate upon receipt of all the information” (emphasis supplied), and
repeating the demand for all the information, as well as to provide dates and times for
negotiations. (GCX 25)
There are apparently no additional communications for the next several days, until15
M Martin responds on February 23, asserting that the Union still had no comments or requests
regarding scheduling procedures after “hundreds of pages of documents we have sent,” and after
meeting for “nearly 4 hours” almost 2 weeks earlier, and again requesting input from the
Union—and again requesting bargaining.73 In a separate email (at 3:22 p.m.), M Martin again
informs E Martin that Respondent believes that it had provided all the requested information, and 20
asks what else the Union wanted. E Martin responds the following date, on February 24,
referring M Martin to the letter provided by the Union on the night of the election, February 6,
and also referring to the other emails that requested information about Arellano’s and Walker’s
termination, as well as the closure of the break room.74 By this time, of course, Respondent had
implemented the schedule changes, which apparently went into effect on Saturday February 18.75 25
Curiously, once again, the record is almost entirely devoid of evidence as to exactly what
schedule changes Respondent made on February 18. The only evidence of a schedule change in
the record involves Servin, whose schedule, as discussed in his testimony and that of Sharron,
was changed from working 4 days per week to 5 days per week, including Saturdays—which
became an issue in his eventual discharge, as previously discussed.76 Additional emails were 30

72 This appears to be disingenuous, since the Union had been informed about the proposed schedule changes some
10 days before by Respondent, who had indicated it wanted to implement the changes by February 18.
73 The comment about not receiving requests regarding scheduling procedures also appears disingenuous, since the
Union had specifically asked for 7 listed items on February 17, late as it was.
74 This is a good example of how the parties appear to be communicating at cross purposes, or past each other. For
about 2 weeks prior, Respondent had communicated its desire to negotiate about the schedule changes it wanted—or
needed—to make by February 18, while the Union appears to be insisting that before it engaged in any bargaining, it
needed to have all the information it had requested, most of which appears to be general information it needed to
negotiate an over-all collective-bargaining agreement, not necessarily about a specific issue such as schedule
changes. Nonetheless, it is notable that later that same day, February 24 (at 9:18 a.m.), M Martin, using a list of 24
items that had been listed in an email to him at 8:59 a.m. that day by E Martin, specifically addresses each of the
items listed, and claims that most of the information requested had either already been provided on February 10, did
not exist, or was not a relevant or factor in the decision-making process. There is no record of a response by E
Martin.
75 By this time Respondent had also discharged Arellano (on February 13), laid-off Walker (on February 15), and
closed the engineers break room on February 7, as discussed previously.
76 In that regard, both Servin and Sharron testified that the schedule change was mandated because Respondent was
short-handed in the wake of Arellano’s and Walker’s termination.
JD(SF)–15–18
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exchanged after the last one described above, but these do not add much to the issue at hand,
with the parties essentially pointing fingers at each other, and agreeing to meet for negotiations
again on March 6 (GCX 25).77
In sum, there were numerous emails exchanged between the parties during the February 6 5
to February 23 time period regarding bargaining for a collective-bargaining agreement in
general, and bargaining about the proposed or intended change in schedule(s), as well as
requesting—and providing—information about these topics. There was also at least one lengthy
face-to-face meeting between the parties where, apparently, these topics were discussed and
information was exchanged, although the record is mostly silent as to what transpired during this 10
meeting. Whether the above-described events amounted to sufficient bargaining, and whether
such bargaining reached an impasse regarding the issue of the schedule change(s) will be
discussed below.
With regard to the alleged changes in employee schedules that occurred about April 7–8 15
and July 5, the story is far less complicated. In essence, E Martin testified, and M Martin
admitted, that Respondent never notified or bargained with the Union about the April changes,
let alone bargain to impasse, assuming there was such legal requirement. Regarding the April
schedule change, M Martin testified that he did not recall notifying the Union. He explained that
the schedule change was agreed to by two employees, Tuttle and Magtibay, as a “swap” between 20
themselves—a practice that had been common in the past, where the small crew of 8–11
engineers covered for each other and otherwise traded shifts. The two employees simply notified
Marsh and Sharron that they had agreed to swap schedules and it was accordingly
implemented—without input from the Union. The schedule change in July involved three
employees, Martinez, Magtibay, and Virgen. According to M Martin, Martinez and Magtibay 25
agreed to swap schedules, and Virgen was promoted. Sharron brought the proposed changes to
M Martin, who approved them. Notably, however, M Martin testified that he met with E Martin
regarding proposed scheduled changes in July, and although Respondent and the Union “never
fully agreed on anything,” they agreed that schedule changes should go according to seniority.
This testimony, however, does not address the issue of whether the Union was specifically 30
notified and bargained with regard to the schedule changes involving Martinez, Magtibay and
Virgen, which E Martin testified the Union was never notified about. Although M Martin
testified he told Tuttle, whom he described as a union official, “like a steward,” that these three
individuals’ schedules had been changed based on their mutual agreement, there is no evidence
that the Union ever appointed Tuttle as a “steward” or any other official capacity. Moreover, 35
according to M Martin’s version, Tuttle was simply informed after the fact, so even assuming he
had some sort of official role in the Union, there is no evidence that the Union was notified or
bargained with about the specific schedule changes involving these three individuals (Tr. 180–
182; 221–222; 431).
40
Accordingly, in light of the above-described evidence, I conclude Respondent did not
notify or bargain with the Union regarding the July 5 work schedule changes.

77 On one of the following emails the Union did demand that Respondent rescind the schedule changes, as well as
the terminations of Arellano and Walker, as well as the closure of the break room.
JD(SF)–15–18
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10. Bypassing the Union and dealing directly with employees
The complaint alleges that about March 29 and June 21 Respondent by-passed the Union
and dealt directly with employees.78 These allegations are directly related to the schedule
changes discussed immediately above, regarding the schedule changes that took place in April 5
and July. It is uncontroverted, as admitted by M Martin in his testimony, that these schedule
changes came about after discussions between the employees named above and management.
Thus, the record shows that these employees agreed to “swap” or trade schedules, as had been
the custom before the advent of the Union, and then went directly to management, who approved
the schedule changes. The Union was kept out of the “loop,” and was not informed or bargained 10
with about these changes.
11. The change in cell phone policy
The complaint alleges that about April 4, Respondent changed its policy regarding the 15
use of cell phones on the shop floor.79 This refers to the previously discussed incident on
April 4, when Respondent informed Servin during a meeting that he had been observed taking
photos with his cell phone, and initially intended to discharge him until it became evident that he
was taking photos of the towels and texting the photos to Marsh to document a potential problem
with the temperature of the towels. Respondent (through M Martin and Marsh) informed Servin 20
he could no longer use his cell phone on the shop floor—for any reason. This appears to be a
departure from previous policy or practice, since there is no evidence of this policy being in
place before, and the use of cell phones appears to have been allowed previously. The Union
was not notified of this “new policy,” although there is no evidence that this policy was applied
to anyone other than Servin (Tr. 97; 105; 315–316; 348).8025
12. The use of third party workers to perform bargaining unit work
The complaint alleges that beginning about February 19, Respondent started using
individuals employed by an independent contractor to perform work customarily performed by 30
the engineers in the bargaining unit.81 The independent contractor in question is AJ Industries
(AJI), which is owned by Dramise, one of Respondent’s principals. There is no dispute that AJI
has been used by Respondent on various projects and jobs since beginning its operations in 2011,
and indeed AJI workers appear to have had an almost continuous presence at the facility since
then. The gist of the General Counsel’s allegation is that beginning in mid-February, the scope 35
or nature of the tasks handled by AJI changed, and it began taking over maintenance or repair
duties typically and traditionally handled “in-house” by Respondent’s engineers, who were by
then represented by the Union.

78 Complaint paragraphs 7(q) and 7(u)
79 Complaint paragraph 7(v)
80 Additionally, I would note that while Section 5.5 of Respondent’s employee handbook (GCX 2) prohibits the use
of personal communication devices (PCD) to photograph or record, it does not address the use of these devices to
make calls, and certainly contains no strict policy against such use. Moreover, as discussed previously, engineers
had a practice of taking photos of defective equipment, a practice that was seen as useful, as testified to by Sharron.
81 Complaint paragraph 7(k)
JD(SF)–15–18
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According to the testimony of M Martin, Respondent has always used AJI to perform
primarily three types of tasks or jobs: “capital projects,” which is the installation of new
equipment and systems, including special projects, defined as anything that Respondent lacks the
manpower to do; warranty work on its equipment, which was purchased through AJI, which is
Respondent’s distributor; and “overflow work,” to fill-in when Respondent is short-handed or 5
“over-whelmed” and doesn’t have enough available employees. According to Sharron, AJI
employees also performed “walk-throughs,” which appear to be part of special projects, although
that is not completely clear. He approves the invoices generated by AJI, four of which were
introduced in the record. One of the invoices, for work performed February 13, describes the
work performed as “clean up shop, Fix leak on Dryer # 10,” for work totaling 6.25 hours. On 10
another invoice, for work performed on February 16, AJI bills for 11.3 hours for “Misc. work,”
apparently referring to miscellaneous work. Sharron testified that Respondent’s engineers
typically perform clean-up work, if there are enough of them, and that the miscellaneous work
was probably part of a special project or walk-through job, although he could not be certain (Tr.
182–184; 241–246; 269–270; 274–277; 394–399; GCX 37 (a)-(d)).15
Servin testified that AJI employees are in the plant “all the time,” but work on separate
projects. Nonetheless, he conceded that long before the union election AJI had performed
“overflow work,” which was filling in for Respondent’s engineers when they were short-handed
or their hours had been cut, and had seen them perform work that Respondent’s engineers 20
typically did. For example, in the fall of 2016, when Respondent’s engineer’s hours were cut to
30 per week, Respondent brought in AJI workers to fill the gaps. Servin testified that after
Arellano was discharged, he was working side-by-side with an AJI engineer named Mitchell,
who told him that he had been brought in to fill-in for Arellano. He said that this individual
(Mitchell), worked an entire 40-hour day shift, as Arellano normally would have, and that this 25
was highly unusual (Tr. 561–566; 568–574).82
In sum, the basis for General Counsel’s allegations regarding this issue rests on Servin’s
testimony, to the effect that he observed an AJI employee fill-in for Arellano for an entire 40-
hour week following his discharge, as allegedly this AJI employee admitted to Servin.83 To a 30
lesser extent, the General Counsel also relies on a couple of vague entries on two invoices
submitted by AJI for “miscellaneous” and “clean-up” work to support its allegation that
Respondent was employing AJI employees to perform bargaining unit work. I find that the
General Counsel’s evidence is insufficient to show that Respondent had clearly departed from
past practice in its use of AJI workers, or that they were doing bargaining unit work, and that 35
hence it did not meet its burden of proof to establish this allegation by the preponderance of the
evidence.

82 Curiously, however, there are no invoices from AJI in the record that would show that one (or more) of its
engineers worked a 40-hour shift during the week(s) that followed Arellano’s discharge on February 13, or at any
other time. Its stands to reason that if such work had been performed, if would likely be reflected on such an
invoice.
83 I would note that this alleged statement by the AJI employee is textbook hearsay, and although under Board rules
and precedent I am not strictly bound to exclude hearsay, I do not give this statement much weight in light of all the
circumstance and other evidence.
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13. Respondent’s alleged refusal to release Servin to attend bargaining sessions
The complaint alleges that about April 24, Respondent refused to honor the Union’s
request to release an employee from work to attend a bargaining session (between Respondent
and the Union).84 Although Respondent initially denied this allegation in its answer, M Martin 5
admitted in his testimony that the Union requested that Servin be granted unpaid time off and be
released from work in order to attend a bargaining session, and that he denied the Union’s
request. The request and the denial are contained in emails exchanged between E Martin and M
Martin on April 17–19 (Tr. 189–190; 432; GCX 31). Nonetheless, a close review of the email
exchange between M Martin and E Martin reveals that the denial was not an absolute one that 10
foreclosed the opportunity for Servin to participate in the negotiations. After E Martin explained
that the Union was not requesting that Servin be paid for his attendance but rather requesting
unpaid leave for him, M Martin replied that Servin would have to follow the usual procedure and
request personal time off (PTO) from his supervisor, Sharron. He added that since the date in
question was less than 2 weeks away, this might be difficult. The record shows no further 15
communications about this subject, nor shows whether Servin requested PTO from Sharron.
14. The allegations regarding Respondent’s conduct during negotiations
The complaint alleges that during negotiations for an initial collective-bargaining 20
agreement during the period between April 27 and July 18, Respondent failed to make
bargaining proposals or counterproposals, and failed to cloak its representative(s) with the
authority to enter into binding agreements. Respondent denied these allegations in its answer. It
is undisputed that the main representatives and spokespersons for the parties during negotiations
were M Martin for Respondent and E Martin for the Union, although other representatives were 25
also present at various times for the Union in addition to E Martin.
M Martin testified that the first face-to-face meeting between him and E Martin for the
purpose of negotiating a collective-bargaining agreement (CBA) took place about April 27, and
that the parties had between 5 and 10 sessions altogether thereafter. At the first session, the 30
Union presented him with a “hard” (paper) copy of a proposed CBA consisting of about 30
pages, and he received both a hard-copy and an electronic copy in a PDF format.85 The proposed
CBA contained some blank spaces for items that needed to be negotiated, such as a time period
for its duration, and did not include any wage of benefit proposal(s). M Martin requested that a
copy in Word (for Windows) format be provided, so that the Employer could “redline it,” that is, 35
make changes and edits in the document itself in order for Respondent to respond to the Union’s
proposals. The Union did not accede to or comply with the request for a copy of the proposal in
Word format, but M Martin admitted he could have taken notes or manually redacted changes in
the hard copy of the document itself. The parties met again on May 23, and on that date the
Union submitted an amended copy of the proposed CBA submitted earlier, this time with wage 40
proposals (GCX 32). On July 11 and 18 the parties met again, but there were no agreements
reached. On July 26, for the first time, M Martin responded in writing to the Union’s May 23
CBA proposal. The response is in the form of a 5-page letter, sent via email, which enumerates
each section of the Union’s proposed CBA and provides a response to each section individually,

84 Complaint paragraph 7(m)
85 Respondent had received an electronic copy of the proposal via email on March 30 (Tr. 264; RX-18).
JD(SF)–15–18
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in essence rejecting all of the proposals for various specified reasons (GCX 33).86 M Martin also
testified that at the July 18 meeting, he told the Union that while he might be able to agree “in
concept” to some proposals, he did not have the “final” authority to approve any proposal. He
explained that he would have to get final approval—or ratification—from Respondent’s board of
directors, which was comprised of himself, Dramise, Bert Arnlund, and John Smagala. In other 5
words, board approval was necessary before “we were done.” 87 Dramise testified that his
instructions to M Martin regarding the negotiations were for him to “work out the best deal” he
could. He also testified that M Martin had the authority to negotiate and “enter” into an
agreement with the Union, but that such agreement would need his final approval (Tr. 191–205;
264–265; 349; 354–355).10
E Martin testified that the Union and Respondent have had about 8 face-to-face
bargaining sessions to date, and confirmed M Martin’s testimony that Respondent had submitted
its first counter-proposals in writing the week earlier (in late November). The first Union CBA
proposal, submitted electronically to Respondent on March 30, contained no wage proposals, but 15
the Union later added these, about June.88 He confirmed that M Martin had requested that the
Union’s CBA proposal be submitted in Word format, which he declined, and that M Martin
suggested Respondent would not respond to his proposals until the Union’s proposal were
submitted in that format. According to E Martin, M Martin did not agree to a single proposal
contained in the proposed CBA during any of their meetings, and indeed informed him that he 20
did not have the authority to agree to any specific proposal, because he had to take any such
proposal back to the board for approval and could not agree to anything on his own. In many of
their meetings, E Martin testified, M Martin would not give firm answers on any proposals, not
saying yes or no, simply stating that they would “get back to him.” He spent a considerable
amount of time during their meetings explaining the different proposals to M Martin, who 25
appeared “unfamiliar” with CBA contractual language (Tr. 432–439; 447–457).
In sum, as more thoroughly discussed below, I conclude that the evidence shows that
Respondent, during the negotiations discussed above, did not make or proffer any proposals or
counter-proposals to the Union, but simply responded to the Union’s proposals by rejecting them30
on July 26. Additionally, I conclude that the evidence shows that Respondent’s main—and
only—negotiator, M Martin, informed the Union during negotiations that he lacked the authority
to formally or finally agree to any proposals absent ratification by Respondent’s board of
directors.
35

86 Although each section elicits an individual response, the typical answers contain phrases like “This… is not
acceptable, (or unacceptable),” “We don’t (or cannot) agree,” “We would like to strike this,” “…needs to be
changed,” etc. (GCX-33). According to M Martin, he had verbally explained to the Union, during their prior
meetings, why he didn’t like or accept each of the items, and the Union providing explanations as to why they were
making the proposals. M Martin also testified that Respondent submitted its first counter-proposal in late November
or early December, a few days before the hearing resumed (on December 4) (Tr. 198).
87 In answering a specific question I posed, M Martin explained that assuming he came to a “meeting of the minds”
with the Union on some proposal, he could not “sign off” on or formally agree to any proposal without first getting
board approval. (Tr. 203–204)
88 He explained that the Union had not been able to formulate a wage proposal earlier due to Respondent’s failure to
submit information the Union had requested. He also explained that he did not want to submit his CBA proposal in
Word format because the Union was concerned that it could easily—and maliciously—be redacted to convey the
false impression that the Union had proposed something that it had not.
JD(SF)–15–18
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15. The failure to notify and bargain with the Union prior to
terminating Arellano, Walker and Servin
The complaint also alleges that Respondent failed to notify, or bargain with, the Union
prior to terminating Arellano, Walker or Servin. 5
There is no evidence that Respondent notified the Union prior to discharging Servin on
May 2, or that it bargained with the Union regarding the imposition of such discipline. On the
other hand, as previously discussed, the evidence shows that M Martin notified the Union (E
Martin) via email on February 7–8, of its intention to have a lay-off (as well as schedule change), 10
as previously discussed. As discussed above, the parties met for almost 4 hours on February 9,
and although there is little direct evidence or testimony as to what occurred in that meeting, M
Martin’s email to E Martin on February 10 describes a discussion between the parties about
Arellano’s intended discharge. E Martin never responded to refute this assertion, so I conclude
that such discussion indeed took place on February 9.89 In the February 10 email, M Martin also 15
discusses in detail Respondent’s plan to discharge Arellano (as discussed the day before), and to
lay-off Walker (GCX 9(a); 22; 23). There is no evidence that the Union specifically requested
(further) bargaining about Arellano or Walker before Respondent discharged Arellano on
February 13 and laid Walker off on February 15.
20
IV. DISCUSSION AND ANALYSIS
1. The employee handbook rule
As discussed in the Facts section (B. 1, above) at issue is the existence of a rule under25
Section 5-4 (Use of Social Media) of the employee handbook that would appear to potentially
restrict protected activity by employees. While the entire rule in question is cited above, the
General Counsel and Respondent, in their post hearing briefs, appear to agree that the portion of
the rule at issue is the following phrase: The Company urges all employees to refrain from
posting information regarding the Company that could embarrass or upset co-workers or that 30
could detrimentally affect the Company’s business. As noted earlier, there is no evidence that
this rule has actually been applied or enforced to interfere with Section 7 rights.
As discussed above, after the hearing the General Counsel withdrew most of the
complaint’s allegations regarding the employee handbook in the wake of the Board’s ruling in 35
Boeing Co., 365 NLRB No. 154 (2017), which was issued about 10 days after the close of the
hearing in this case. In Boeing Co., the Board overruled parts of Lutheran Heritage Village-
Lithonia, 343 NLRB 646 (2004), and announced a new analytical framework under which
facially neutral rules should be examined to determine whether they violate the Act. Under this
new analytical framework, the Board will examine 3 categories of rules:40
1. Category 1 will include rules that the Board designates as definitely lawful, either
because (i) the rule, when reasonably interpreted does not prohibit or interfere

89 Indeed, I previously found E Martin’s assertion that he did not find out about Arellano’s discharge until February
13 was not credible, as contradicted not only by these emails, but by Arellano’s testimony as well.
JD(SF)–15–18
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with the exercise of NLRA rights; or (ii) the potential adverse impact on protected
rights is outweighed by justifications associated with the rule.
2. Category 2 will include rules that warrant individualized scrutiny in each case as
to whether the rule would prohibit or interfere with NLRA rights, and if so,
whether any adverse impact on NLRA-protected conduct is outweighed by 5
legitimate justifications.
3. Category 3 will include rules that the Board will designate as definitely unlawful
because they would prohibit or limit NLRA-protected conduct, and the adverse
impact is not outweighed by justifications associated with the rule.
10
Curiously, the General Counsel, while citing and paying lip service to Boeing Co. in its
brief, proceeds to ignore the analytical framework described above, instead citing The Sheraton
Anchorage, 362 NLRB No. 123 (2015) for the proposition that any rule that bars employee
conduct that “publicly embarrasses” the employer has substantial impact on employee rights and
is therefore unlawful.90 Without actually saying so, the General Counsel appears to be arguing 15
that the rule at issue in this case falls under “category 3,” and that little, if any, justification was
provided by Respondent in order to outweigh the presumption of unlawfulness that this rule
carries. Respondent, on the other hand, essentially argues that this rule falls under “category 1,”
either because it is so “innocuous” that no employee could reasonably interpret it to interfere
with Section 7 rights, or because its negligible potential impact is outweighed by its 20
justifications. In that regard I would note that Respondent argues that the Act does not protect
conduct that embarrasses or upsets coworkers, nor protects conduct that detrimentally affects the
employer’s business. It further argues that this rule was simply designed to promote a congenial
and professional workplace free of discrimination or harassment.
25
I conclude that the ruling in Sheraton Anchorage, which was not overruled or even cited
in Boeing, strongly suggests that this rule would fall under a “category 3” and would therefore be
presumptively unlawful, absent justification that outweighs its unlawful impact. In so
concluding, I note, contrary to Respondent, that activity protected under the Act cannot be
suppressed merely because it may upset or even offend other employees, or because it may be 30
“detrimental” to the employer’s interests. Such is the essence of 80 plus years of Board and
court rulings under the Act. It is reasonable to infer, for example, that many employees disfavor,
or even abhor, unions, and that union activity in many, if not most instances, can arguably be
“detrimental” to an employer’s interests. Yet the right to engage in union activity goes to the
core of the Act, and such activity cannot be deterred because of the negative impact it may have 35
on other employees or the employer. Moreover, I note that the language of the rule in question
does not address the posting of information about other employees that might upset them, which
could be justified for privacy reasons, but rather the posting of information regarding the
Company that could embarrass or upset employees, or detrimentally affect the Company’s
business. Thus, as with the rule in Sheraton Anchorage, the employer in this instance appears to 40

90 Indeed, the General Counsel appears to go out of its way to point out that even then-Member Miscimarra, whose
then-minority views were adopted by the Board majority in Boeing Co., agreed in Sheraton Anchorage that such
rule went too far. Be that as it may, the analytical framework under Boeing still needs to be applied, something
General Counsel failed to do.
JD(SF)–15–18
34
be trying to protect itself at the expense of employee Section 7 rights, without a reasonable or
truly applicable justification.91
Accordingly, and for these reasons, I conclude that the above-cited rule unreasonably
interferes with employee Section7 rights, and therefore violates Section 8(a)(1) of the Act.5
2. The conduct by Sharron about January 24 and 25
As described in the facts section, shortly after the Union filed its representation petition,
E Martin visited Respondent’s facility and informed M Martin that the Union was organizing 10
Respondent’s engineers. M Martin then asked Sharron if he knew anything about this, and
Sharron said he did not know but would find out. I concluded that the following events then
took place:
 Sharron asked Arellano and Servin if they knew anything about the Union, and 15
also separately asked Arellano if he supported the Union, in the presence of two
other supervisors, Marsh and Scott, and told Arellano he would call the other
engineers to ask them what they knew about the Union. Servin denied knowing
anything, but Arellano said he supported the Union because he had previously
worked for a union company;20
 Sharron told Servin that the Union only wanted his money, and asked him how he
would vote;
 Sharron proceeded to ask all the engineers, one by one, either in person or by
telephone, if they knew anything about the Union organizing. They all replied
that they knew nothing, and Sharron reported back to M Martin accordingly;25
 A day or so later, Respondent received in the mail a copy of the representation
petition that had been filed by the Union with the Board.
The General Counsel alleges that the above conduct violated section 8(a)(1) of the Act,
because the questions about union activity constituted unlawful interrogations or, in the case of 30
Sharron’s statement to Servin about what the Union wanted, it was a coercive statement. It is
well-settled that the circumstances surrounding the questioning of employees about their
protected activity—that is, the time, place, manner, rank of those involved, and whether the
employee in question is a well-known union supporter—is crucial in determining whether such
conduct is coercive and thus in violation of the Act. Rossmore House, 269 NLRB 1176, 1178 fn. 35
20 (1984), affd. sub nom, HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Bourne v.
NLRB, 332 F.2d 47 (2nd Cir. 1964); Camaco Lorain Mfg Plant, 356 NLRB 1182, 1182–1183
(2011). Examining those factors in this case, I first note that Sharron, whose rank is just below
that of M Martin and equal to Marsh’s, embarked on this conduct repeatedly, at the apparent
behest of M Martin, and interrogated the entire engineering department, one by one, as he 40
admitted doing. Thus, this was not an isolated event involving a low-level supervisor asking a
casual question of a single employee in the shop floor, but rather a sustained campaign of
interrogations that enmeshed everyone in the unit. Moreover, except for Arellano, who admitted
the second time he was questioned that he supported the Union, all others falsely denied knowing

91 I would also note that the rule does not even indirectly make reference to harassment or discrimination of other
employees, a justification that would be applicable if the rule was worded to address such valid concern.
JD(SF)–15–18
35
anything about the Union—a sure sign of intimidation. Finally, I also note that these series of
interrogations are themselves not isolated events, but rather part and parcel of a larger picture
involving other coercive conduct by Respondent, as will be discussed below. We cannot
therefore view Sharron’s conduct in isolation, but must view it in the context of other conduct
engaged in by Respondent during this time period.5
Accordingly, I conclude that by asking employees whether they knew about the union
campaign, and by asking whether they supported or would vote for the Union, Respondent
unlawfully interrogated employees in violation of Section 8(a)(1) of the Act.92
10
On the other hand, I find that Sharron’s comment to Servin to the effect that the Union
only wanted to “take his money” was not coercive or otherwise unlawful. Employers are
explicitly allowed to express their opposition to, even their distaste for, unions under Section 8(c)
of the Act, not to mention the First Amendment, so long as this expression “contains no threat of
reprisal or promise of a benefit.” Sharron’s statement might indicate disdain or even contempt 15
for the Union, but contains no explicit or implied threat or promise.93 The Board has long
recognized that union election campaigns can be bruising affairs during which some nasty things
will be said, but absent a threat or promise, a violation of the Act cannot be determined on the
basis of whether feelings are hurt. Accordingly, I recommend that this allegation(s) of the
complaint be dismissed.94 20
3. The conduct by Dramise and Sharron about February 1
I concluded that about February 1, Dramise called Arellano and Servin to a meeting in
the conference room and told them that if the Union was voted in, Respondent would no longer 25
honor their “contracts,” by which he meant, and they understood to mean, their wages, hours and
working conditions. It is by now axiomatic that employers may not threaten adverse
consequences if their employees unionize, or even predict adverse results absent a proper
explanation based on objective facts beyond the employer’s control. NLRB v. Gissel Packing
CO., 395 U.S. 575, 618 (1969); Smithfield Foods, Inc., 347 NLRB 1225, 1229 (2006); Reeves 30
Bros., Inc., 320 NLRB 1082, 1082–1083 (1996); Swinline Co., 256 NLRB 704, 716 (1981).
Respondent argues that Dramise was simply stating that Respondent would have to
negotiate with the Union about wages, hours and working conditions if it was selected as its
employees’ representative. It is true that employers may inform employees that choosing to be 35

92 The General Counsel also alleges that when Sharron told Arellano he would call the other engineers to find out
what they knew about the Union, this constituted surveillance. This amounts to hair-splitting, in my opinion. What
Sharron did was to inform Arellano he was going to interrogate them—which is what he proceeded to do.
93 According to Servin, whom I credited, Sharron said that the Union was “just interested in taking my money, and
I’d only get $25 on my check, and that’s all they’d be interested in, just taking my money” (Tr. 529). The General
Counsel asserts that by telling Servin that he would end up with only $25 in his paycheck, Sharron was implying
Respondent would reduce his pay, making this a threat. This argument ignores the context in which the statement
was uttered, and the obvious implication that it would be the Union’s dues (or fees) that would result in his paycheck
reduction. Accordingly, I do not find that Sharron uttered threat about what Respondent would do, but rather voiced
his opinion as to what the Union was really after.
94 These allegations are contained in paragraph 5(b)(2) & (3), which allege a threat and an expression that selecting
the Union would be futile. I conclude neither occurred.
JD(SF)–15–18
36
represented by a union does not automatically guarantee better wages or benefits. Fern Terrace
Lodge, 297 NLRB 8 (1989); Libertyville Toyota, 360 NLRB 1298 (2014). Indeed, employers
may inform employees that collective bargaining amounts to a “roll of the dice” that could result
in wages and benefits getting better, getting worse, or staying the same. City Market, Inc., 340
NLRB 1260, 1272–1274 (2003); Mediplex of Connecticut, Inc., 319 NLRB 281 (1995). This is 5
not, however, what Dramise told Arellano and Servin, at least not how it came out, despite of
what Dramise might have intended. What Dramise said, and what Arellano and Servin heard, in
my view, amounted to a threat. Accordingly, I conclude that Respondent violated Section
8(a)(1) of the Act by this conduct.
10
Additionally, I also found that about February 1, Sharron told Servin that he had figured
out who the union supporters (or organizers) were, and named Arellano, Walker and “Rico”
(whose last name is unknown). I find that this statement by Sharron would reasonably tend to
create the impression that Respondent was engaged in surveillance of its employees’ union
activities. Register Guard, 344 NLRB 1142, 1144 (2005); Caterpillar Logistics, Inc., 362 NLRB 15
No. 49, slip op at 1–2 (2015). Accordingly, I conclude that Respondent violated Section 8(a)(1)
of the Act by engaging in this conduct.
4. The termination of Arellano, Walker and Servin
20
As previously discussed, it is undisputed that Respondent discharged Arellano on
February 13 and Servin on May 2, and laid-off Walker on February 15. What is in dispute is the
motivation or reasons for these individuals’ termination. Because Respondent’s motivation in
terminating these three employees is at issue, these allegations must be evaluated pursuant to the
Board’s analysis discussed in Wright Line, a Division of Wright Line, Inc. 251 NLRB 1083 25
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
Transportation Management, Inc. v. NLRB, 462 U.S. 393 (1983). Under Wright Line, the
General Counsel must initially demonstrate by a preponderance of the evidence that the
employee’s protected conduct was a motivating factor for an employer’s adverse employment
action. The General Counsel initially meets its burden under this test by showing that the 30
employee was engaged in protected activity, the employer had knowledge of such activity, and
the employer had animus. Once the General Counsel has met this burden, the burden shifts to
the employer to show that it would have undertaken the same adverse action even in the absence
of protected activity. Michigan State Employees Association, 364 NLRB No. 65, slip op. at 5,
fn. 17 (2016). The employer cannot carry this burden merely by showing that it also had a 35
legitimate reason for the action, but must persuade, by a preponderance of the evidence, that the
action would have taken place absent the protected activity. Western Refining, 366 NLRB No.
83, slip op. at 1–2 (2018); Dentech Corp., 294 NLRB 924, 956 (1989). If the evidence
establishes that the reasons given for the employer’s action are pretextual, that is, either false or
not relied upon, the employer fails by definition to show that it would have taken the same action 40
for those reasons, and its Wright Line defense thus fails. Western Refining, supra; Libertyville
Toyota, supra; Golden State Foods Corp., 340 NLRB 382, 385 (2003).
Applying the above-cited criteria, I note that the evidence shows as follows. First, the
evidence plainly demonstrates that all three individuals engaged in protected activity, and in the 45
case of Walker, Respondent at minimum suspected that he had. With regard to Respondent’s
JD(SF)–15–18
37
knowledge that these three individuals were engaged in protected activity, there is strong
evidence supporting the conclusion that Respondent had such knowledge. With regard to
Arellano, he informed Sharron that he supported the Union, before the election, about February
1, as discussed above. Moreover, he wore a union button on the day of the election, something
that was admittedly observed by one of Respondent’s supervisors, Linares. Finally, Sharron told 5
Servin that he believed Arellano was one of the union supporters or organizers, along with
Walker and another individual. Regarding Servin, he also started wearing union buttons and
union pocket protectors , and displaying union stickers on his tool box, on the day of the election
and thereafter. Sharron admitted that Servin, after the election, told him he supported the Union,
and Marsh testified that part of the reason why Sharron was ultimately discharged, as reflected in 10
his termination slip, was that he had been observed distributing union paraphernalia. Finally, in
April, prior to Servin’s discharge, the Union requested that Respondent release him from work so
that he could attend a bargaining session, a strong signal that Servin was a stalwart union
supporter whose help the Union needed during negotiations.95 As for Walker, he served as the
lone observer, for the Union, during the February 6 election, and Sharron told Servin that he was 15
suspected of being one of the main union supporters or organizers. In sum, the evidence clearly
shows that Respondent knew, or at minimum in the case of Walker suspected, that these three
employees had engaged in union activity or supported the Union.
There is also strong evidence of animus by Respondent toward the employees’ union or 20
protected activity. The unlawful conduct I have described above, namely interrogations, threats
and creating the impression of surveillance plainly demonstrates that Respondent harbored
animus toward the Union and those who supported it. In the case of Arellano, who Respondent
decided to discharge only 2–3 days after the election, and Walker, who was laid off about 9 days
after the election, the timing is also indicative of animus. Moreover, as will be discussed below, 25
the shifting and sometimes plainly contradictory explanations provided by Respondent for the
termination of all three individuals suggests pretext, which itself is indicative of animus. Finally,
I take judicial notice of the recent Board decision in Apex Linen Service, Inc., 366 NLRB No. 12
(2018), where the Board found clear evidence of animus in concluding that Respondent
unlawfully suspended and then discharged an employee for engaging in union activity during the 30
2015–2016 period.96
In light of the above, I conclude the General Counsel met its Wright Line burden to show
that the adverse action taken toward Arellano, Walker and Servin was motivated, at least in part,
by their union activity. The burden thus shifts to Respondent to show that it would have 35
nevertheless undertaken the adverse actions even in the absence of protected activity. For the
following reasons, I conclude that Respondent failed to meet this burden, because the evidence
strongly supports the conclusion that the reasons proffered by Respondent were pretextual. In
the case of Arellano, I first note that Respondent admitted he was a highly skilled engineer, who
had previously received a performance award and who had no history of discipline or 40

95 Sharron also testified that he had doubts about Servin having been ill and missing work in April, despite
presenting a doctor’s note, because he had been observed attending a union meeting.
96 Although that case involved a different union (HERE International Union) and an employee in a different
bargaining unit, the evidence of union animus is still relevant to the instant case. Animus need not be directed at a
particular union or specific type of protected activity; it suffices to show that Respondent had animus toward union
or protected activity in general.
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performance problems. The way his abrupt termination came about, only a few days after the
election and without the semblance of minimally adequate investigation about his alleged
misconduct, is a clear and classic indicator of pretext. Respondent asserts that the reason he was
discharged is that he attempted to persuade a coworker to make, or file, a fraudulent “worker’s
compensation” claim. No such thing even remotely occurred. Briefly, as discussed in the facts 5
section, Arellano was asked by a dry-cleaning department worker, Hernandez, to open up a
bottle of a chemical stain remover. Arellano noticed her bloodshot eye, and asked her what had
occurred. Hernandez replied that she did not know (but admitted that her eye was normal before
she started her work shift). Arellano told her to report her injury to her supervisor—and get
medical help if needed.97 He also told her she should be wearing safety glasses, to avoid eye 10
injuries. Hernandez then told him she was not sure (or didn’t think) her injury had occurred at
work. After Hernandez told him this, Arellano did not again tell her, or in any way insist or
suggest, that she inform the employer that the injury had occurred at work. The conversation
then ended. 98 I find that Arellano acted in an entirely appropriate manner, and indeed showed
concern for an apparently injured coworker. 15
M Martin admitted he made the decision to discharge Arellano based solely on this
incident, even though he never interviewed Arellano or Hernandez to get their versions of what
had transpired. He relied instead on Linares’ report of what Hernandez had said to her, and the
short statement written by Hernandez. Based on this miserly report(s), and without conducting 20
even the semblance of a proper investigation, M Martin somehow concluded that Arellano was
guilty of instigating “worker’s compensation” fraud, a term or action that was not even remotely
used or suggested during the conversation between Arellano and Hernandez. This rush to
judgment without bothering to ascertain all the facts marks a “shoot first, ask questions later”
attitude that strongly suggests that Respondent was looking for any excuse, feeble as it may be, 25
to discharge an individual it viewed as one of the main union supporters. As the Board stated in
New Orleans Cold Storage & Warehouse, Ltd., 326 NLRB 1471, 1477 (1998), enfd. 201 F.3d
592 (5th Cir. 2000), “the failure to conduct a meaningful investigation and give the employee
who is the subject of the investigation the opportunity to explain are [likewise] clear indicia of
discriminatory intent.”99 Likewise, the Board will infer unlawful motivation or animus where 30
the where the employer’s action is “baseless, unreasonable, or so contrived as to raise the
presumption of an unlawful motive,” J. S. Troup Electric, 344 NLRB 1009 (2005), and cases
cited therein. I conclude that Respondent’s proffered reason for discharging Arellano was
exactly that: baseless, unreasonable and contrived.100 Accordingly, Respondent failed in its

97 Even assuming, for the sake of argument, that Arellano said for her to go to the “company doctor,” that does not
reasonably imply that he was suggesting she engage in worker’s compensation fraud.
98 I note, as Arellano testified, that Respondent’s employees work in an environment filled with potential eye
irritants, including chemicals, fumes, lint and machine part shavings. Any reasonable person, under these
circumstances, would have logically assumed that Hernandez’s eye irritation had occurred at work.
99 I would note that in the recent Board case involving this Respondent, Apex Linen, supra, the Board also found
unlawful motivation based in part on Respondent’s poor investigation of the affected employee’s alleged
misconduct. In this instance, the investigation—if that’s what it can be called—was even shoddier. This has
apparently become Respondent’s modus operandi.
100 This conclusion is further enhanced by the inclusion of purported sabotage by Arellano in his termination slip,
something which was admitted by M Martin not to be true, as well as “insubordination,” which did not occur.
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burden to show that Arellano would have been discharged even in the absence of protected
activity, and I find his discharge was thus unlawful.101
With regard to Walker’s lay off, for the same reasons as explained above, I find that the
General Counsel met its Wright Line burden. One distinction that must be noted with respect to 5
Walker is that unlike Arellano and Servin, Walker was laid off, presumably for economic
reasons, and not discharged. Indeed, M Martin testified that he was re-employable, although
later events put that into question. Nonetheless, Respondent has the burden of establishing that
he would have been laid off even in the absence of protected activity. I conclude that
Respondent did not meet that burden. Although Walker’s case is not as strong or compelling as 10
Arellano’s, I conclude that the reasons proffered by Respondent for his lay off, including its
timing, appear pretextual. In that regard I note that the evidence shows, based to a large degree
on M Martin’s testimony, that on previous occasions when worked had slowed down,
Respondent had opted to reduce the hours of all engineers across the board—a practice allegedly
in response to the stated preference of the engineers themselves. In Walker’s instance, M Martin 15
explained that there had been “rumblings” from the engineers that they did not want their hours
cut. When pressed to name which engineers had complained, M Martin could only name one—
Joe Tuttle. I therefore did not credit M Martin’s testimony, and accordingly conclude that this
was a pretext. This conclusion is further reinforced by the fact that M Martin had notified the
Union that the “graveyard shift” shift, where Walker worked, would be shut down, and that two 20
other engineers would be laid off—which did not occur. This disparate treatment was not
explained, and together with the departure from past practice, further suggests unlawful
motivation. Further, even assuming that the reasons provided by Respondent are not pretextual,
it did not proffer any credible evidence to support its burden to show that its adverse action
against Walker would have taken place regardless of protected activity.25
Finally, regarding Servin’s discharge on May 2, the General Counsel also met its Wright
Line burden.102 I conclude that Respondent failed in its burden to overcome the General
Counsel’s case, inasmuch the reasons it proffered for Servin’s discharge are pretextual. As I

101 The General Counsel has also alleged that Respondent violated Arellano’s Weingarten rights by denying his
request for union representation during the meeting on February 13 when he was given his termination notice
(Complaint paragraphs 5(f), (g), and (h); ). As Arellano himself admitted, however, his termination was final, as
confirmed by M Martin, and he was there only to receive his marching papers. The fact that M Martin gave him a
piece of paper and told him he could write on it if he wished to explain anything doesn’t change that equation,
because that fact does not establish that Respondent had changed its mind and was reconsidering. A significant
factor which makes Arellano’s unlawful discharge case so compelling, as discussed above, is that it was so
inexplicably and unreasonably abrupt. If, as required to support a Weingarten violation, the General Counsel now
argues that Respondent had reconsidered and wanted more information before deciding whether to discharge
Arellano, this conclusion would inevitably weaken its theory of a violation regarding his discharge. The General
Counsel should be careful what it wishes for. Fortunately for the General Counsel, its Weingarten theory makes no
sense under the circumstances and has no merit, and I dismiss those allegations of the complaint.
102 May 2 is underlined because the General Counsel, for reasons I cannot fathom, has also alleged that Servin was
discharged on April 4 as well (Complaint paragraph 6(c)). As the evidence introduced by the General Counsel itself
established, however, Servin was not discharged on April 4. Respondent may have planned, intended, and wished to
do so, but it did not do so, as the discharge it had planned was rescinded and Servin did not lose even a minute of
work or wages. Accordingly, this allegation of the complaint is dismissed. Nonetheless, this doesn’t mean that the
events of April 4, as discussed in the facts section, are not important. As I stated then, it appears that this was a
“dress rehearsal” for the events that were soon to follow, and indicate, as with Arellano’s case, that Respondent was
willing to “shoot first and ask questions later,” and eagerly looking for any excuse to discharge Servin.
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detailed and discussed in the facts section, I found the reasons given by M Martin, Marsh and
Sharron to explain and support Servin’s discharge were inconsistent, contradictory,
unreasonable—and not credible. Not only did they contradict each other as to who made the
decision, but also as to how the decision was made, and the reasons therefor. Indeed, the litany
of reasons testified to by these three supervisors, only some of which are codified in his 5
termination slip, appear to be nothing short of an attempt to “throw mud at the wall” in the hopes
that some of it would stick. Although the primary reason given appears to be related to his
alleged improper “call offs,” the evidence shows, as admitted by Sharron—Servin’s immediate
supervisor and person who decided if an engineer had provided proper notice—Servin had
provided timely notice for each of his alleged absences, and provided a valid excuse. Indeed, 10
Sharron begrudgingly admitted that Servin’s final absence had been properly excused by a valid
doctor’s note—which he nevertheless still questioned because he had found out that Servin had
attended a union meeting during the time he was ailing with an ear infection.103 In sum, the
shifting, contradictory and unreasonable explanations proffered to justify Servin’s termination
smack of pretext. While Servin may not have been a perfect employee and likely had some 15
issues, he had not received any formal or written warnings about his performance or conduct,
and in the end Respondent’s shifting justifications do not hold water. Accordingly, I conclude
that Respondent did not meet its burden as to Servin, and that his discharge was therefore
unlawful.
20
Accordingly, I find that Respondent violated Section 8(1) & (3) of the Act by terminating
the employment of Arellano, Walker and Servin.
5. The Union’s request for information
25
It is by now axiomatic that a union that represents employees in collective bargaining is
entitled to request and receive from employers information that is reasonably necessary to fulfill
its duty as the employees’ collective bargaining representative. NLRB v. Truitt Mfg. Co., 351
U.S. 149,156 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Detroit
News, 270 NLRB 380 (1984). Thus, any refusal to provide, or an unreasonable delay in 30
providing, such information represents a failure to bargain in good faith and violates Section 8(a)
(1) & (5) of the Act. Moreover, the obligation to bargain in good faith, in the context of the
obligation to provide information relevant to collective bargaining responsibilities, presumes a
spirit of cooperation between the parties. While this obligation does not compel parties to agree
to anything, or provide information not required or privileged, the obligation to deal in good faith 35
reasonably assumes that the parties will be forthcoming and cooperative—different in tone and
spirit to that of parties involved in adverse proceedings, such as litigation.
As discussed in the facts section, much information was requested by the Union in this
case. Much of the information sought by the Union was in preparation for negotiating an initial 40
collective-bargaining agreement, but some of it was sought in connection with some of the

103 This explanation itself shows animus. Assuming the information relayed to Sharron was accurate, and I note
Servin was never asked about it, there is a big difference between attending a union meeting, which may last an hour
or two, and working an 8-plus hour shift while sick and under the influence of medications, performing maintenance
or repairs on machinery which may be dangerous-and loud. Thus, I do not find it reasonable for Respondent to label
Servin’s absence was unexcused, despite the doctor’s note, because he attended a union meeting while on sick leave.
JD(SF)–15–18
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actions Respondent took following the election, such as schedule changes, the closing on a break
room, the use of outside contractors, and the termination of some employees. At the outset, it is
clear to me that the Union was lawfully entitled to request and receive all the information sought
and at issue herein, to the extent that such information existed and was in Respondent’s
possession or control. I have been provided with no authority or persuasive arguments to the 5
contrary. Accordingly, at issue is whether the information was provided, was unreasonably
delayed, or whether the information did not exist or could not be provided for other reasonable
and valid reasons.
I will discuss the information requests in the order alleged in the complaint, as 10
enumerated in the facts section, above:
Item 1(A list of current bargaining unit employees including their…date of completion of
any probationary period) was requested by the Union on February 6. As discussed above, the list
of unit employees was provided by Respondent via email on February 10, so Respondent 15
complied with this request, and this part of the allegation has no merit. The information
regarding completion of probationary periods is not kept or does not exist, so there is no
obligation to provide this information. Respondent, however, failed to inform the Union of this
fact, which in my view represents a failure to be forthcoming and thus to bargain in good faith, in
violation of Section 8(a)(1) & (5) of the Act.20
Item 2 (Copies of all manuals, training materials, documentation, memoranda,
communications and policies related to the operation of any work distribution system currently
in use.), was requested by the Union on February 6. In response to this request, Respondent
asserted that its manuals were too voluminous to provide, but never provided or suggested to the 25
Union an alternative method of reviewing the manuals, such as giving the Union access to the
plant to review these. I find Respondent, in these circumstances, has an obligation to offer or
provide an alternate method of accessing the information sought. With regard to the training
records, Respondent, after incorrectly informing the Union that training records did not exist, it
failed to inform the Union when these records were later discovered. While providing incorrect 30
or false information due to an honest or inadvertent error is not unlawful, failing to disclose such
mistake once discovered represents the essence of bad faith. I conclude Respondent violated
Section 8(a)(1) (5) of the Act due to these failures.
Item 3 (A list of employees who have had schedule changes, including dates and job 35
classifications at time of schedule changes.) was requested by the Union on February 6. As
discussed above, the preponderance of the evidence indicates that Respondent did provide this
information via email on February 10. Accordingly, I find no violation in this instance.
Item 4 (A copy of all policies or procedures with respect to employment of employees.) 40
was requested by the Union on February 6. As discussed above, although Respondent provided
the employee handbook in response to this request, it did not include other information and
sources referenced in the handbook. By failing to provide these, I conclude Respondent violated
Section 8(a)(1) (5) of the Act.
45
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Item 5 (A copy of all training records for Mr. Arellano.); Items 6 (A copy of Mr.
Arellano’s employee evaluations) and Item 7 (Copies of all evidence, written statements,
video/audio recordings used to determine to terminate Mr. Arellano’s employment), were
requested by the Union on February 13 in the wake of Arellano’s discharge. As discussed above,
the evidence shows Respondent failed to provide the Union with this information, even though it 5
had possession of a videotape and an employee Statement (by Hernandez) related to Arellano’s
discharge. By failing to provide the Union with this information, Respondent violated Section
8(a)(1) (5) of the Act.104
Items 8 (Information responsive to the question of what was behind Respondent’s 10
decision to lay-off employees and change employees’ schedules), 9 (Evidence to support the
claim that business need requires layoffs/schedule changes) and 10 (Copies of all outside
contractor’s invoices for maintaining/installing/servicing laundry equipment in the plant for the
past 5 years). As discussed above, I credited E Martin’s testimony that these items were not
provided, and no persuasive evidence was proffered by Respondent to the contrary. 15
Accordingly, I find that by failing to provide the Union with this information, Respondent
violated Section 8(a)(1) (5) of the Act.
6. The closure of the engineers’ break room
20
The complaint alleges that by closing the engineers’ break room on February 7,
Respondent retaliated against its employees for engaging in union activity, in violation of
Section 8(a)(1) and (3) of the Act (complaint paragraphs 6(f) & (g)). It also alleges that
Respondent failed to bargain with the Union regarding the closure of the break room, in violation
of Section 8(a)(1) and (5) of the Act. For the following reasons, I conclude that Section 8(a)(1) 25
and (3) allegations have merit, but not the Section 8(a)(1) (5) failure to bargain allegations.
As discussed in the facts section, I concluded that Respondent had made the decision to
close the engineers’ break room long before the advent of the Union, and that it would have thus
eventually closed the break room regardless of its employees’ union activities.105 Nonetheless, 30
there is a twist to this story. While I am persuaded that Respondent met its burden under Wright
Line, following the General Counsel’s initial burden, to show that it would have closed the break
room in any event, it failed to show that it would have closed it on the day after the election, on
February 7. As I discussed previously in the facts section, I concluded that Respondent, in an
apparent fit of spite as a result of its employees supporting the Union on the election on February 35
6, accelerated its intended closure of the break room, and shut it down the day after the election.
As I explained, there is no evidence suggesting that Respondent had intended to close it so soon,
not even giving the engineers time to retrieve their personal equipment and items, a sure sign that
this was done in a haste. I find that this was intended as a signal to its employees that
Respondent was unhappy with the results of the election and intended to play hard ball. Such 40
retaliatory move, prematurely depriving the engineers of a benefit they had enjoyed for several

104 Respondent asserts, in defense, that these items were requested after Arellano was discharged, appearing to
suggest that this request was thus moot. I reject this defense as having no merit.
105 Thus, to the extent that a Wright Line analysis is called for in this instance—which I do, despite the fact that
neither party discussed such theory—I believe that the General Counsel met its initial burden, but then Respondent
met its burden to show that it would have taken this adverse action even in the absence of protected activity.
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years, violated Section 8(a)(1) & (3) of the Act. Although there is no way to tell exactly when
such room would have eventually been closed, the evidence does support the conclusion that it
would have been closed in the near future. Accordingly, I will not order, as the General Counsel
requests, that the “status quo” be restored by directing that the break room be re-opened. Such
order would be punitive, rather than remedial, in nature, which the Act does not authorize.5
With the regard to the allegation that Respondent was obligated to bargain about its
decision to close the break room, I find that this allegation has no merit. As discussed, the
evidence shows that such closure had been planned and was in the works long before the Union
even started organizing, and therefore Respondent was under no obligation to bargain about that 10
decision. Accordingly, I dismiss the Section 8(a)(1) (5) allegation in this regard. Nonetheless,
Respondent still had an obligation to bargain with the Union regarding the effects of its decision
to close the break room. The record shows this is something Respondent did not do, since it did
little more than inform the Union that it had long planned to close the break room (after it had
already been closed) in light of its decision to build a new employee lunchroom. The failure to 15
bargain over the effects of this closure violated Section 8(a)(1) & (5) of the Act, I conclude.
7. The alleged failure to bargain over the schedule changes
As discussed in the facts section, it is undisputed that Respondent changed the work 20
schedules of its engineering department employees on/about February 18, April 7 and July 5.
The General Counsel asserts that Respondent did not bargain with the Union to impasse, indeed
at all, prior to making these changes. With regard to the changes on April and July, the evidence
clearly shows that Respondent did not notify, let alone bargain with, the Union prior to making
these changes. With regard to the changes that took place about February 18, the story—which 25
General Counsel glosses over—is more complicated, and indeed the facts suggest that
Respondent tried unsuccessfully to get the Union to meet and bargain about that specific topic,
with the Union demurring.
As previously described in detail, the flurry of emails exchanged between M Martin and 30
E Martin during the period of February 8 and 17 indicate that the Union initially requested, on
February 6 and 8, that Respondent provide information contained in a specific list of items. The
vast majority of the information requested, however, was related to over-all information about
Respondent’s operations which the Union needed to commence collective bargaining
negotiations for an initial collective-bargaining agreement (CBA). On the evening of February 35
8, M Martin informed E Martin, in one of the emails, that Respondent needed to make changes in
order to “function,” and requesting that the Union bargain about these proposed schedule
changes. The parties held a meeting on February 9, which lasted almost 4 hours, and during
which, apparently, much information was exchanged, although the record is—unfortunately—
mostly silent about the details of such meeting.106 On (Friday morning) February 10, via email, 40

106 From subsequent emails, however, we know that among other things, Respondent informed the Union about its
plans to discharge Arellano and lay-off Walker, as well as its need to change the schedules in order to meet its
production needs in light of such personnel changes. As previously discussed, E Martin’s testimony that he knew
nothing about Arellano’s termination until after he had been discharged was clearly false, as corroborated by
Arellano himself, and I accordingly found E Martin’s credibility in that regard wanting. This credibility gap also
plays a part as to what occurred during these email exchanges.
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M Martin provided many of the items the Union had requested, although not all, as previously
discussed. Among the items provided were the current and proposed schedule changes, and
almost 1300 pages of time-keeping records (Respondent had not recorded or kept track of past
schedule changes). In that email M Martin specifically requests that the Union respond by the
end of the day, Monday February 13, so that Respondent can prepare for the schedule changes it 5
wanted to implement by February 18. The Union did not respond until late on Friday,
February 17, more than a week after the February 10 request from Respondent. In its
February 17 email the Union appears to pretend it knew nothing about the proposed schedule
change, stating “we have been informed that Apex Linen is proposing changes to the bargaining
unit member’s work schedules” on the following day, apparently awakened by its members’ 10
complaints, and demanding that Respondent refrain from changing the schedules until the Union
had an opportunity to bargain and agree to those changes. The Union then makes additional
information requests that it asserts it needs before it can negotiate. Respondent replied a few
minutes later, asserting that the information had been already provided. The Union replies that it
is still waiting for the “full list” of items it had requested. A careful reading of that “full list” 15
however, reveals that most, if not all, of the items still outstanding were relevant only as to
information that the Union might need in order to negotiate an over-all CBA, or information it
might need with regard to Arellano’s discharge or Walker’s lay off, not information that the
Union truly needed to bargain about the proposed schedule changes, which Respondent had been
urging it needed to do since at least February 8. I would also note that collective bargaining 20
negotiations for a CBA did not start until late April, more than 2 months later, so whatever
information the Union needed for those negotiations could wait.
This sequence of events and communications strongly suggests that the Union was, at
best, lackadaisical about Respondent’s urgent requests to bargain about the schedule changes. 25
Indeed, it dithered and stalled, not only because it saw no urgency from its perspective, but
because it apparently felt it could rely on its need for all-encompassing information before it
bargained on any topic.107 In these peculiar and narrow circumstances, I do not find that
Respondent failed in its duty to bargain. It attempted, in good faith, to do so, but was met with
passive resistance by the Union, who obviously had no incentive to negotiate about a change that 30
its members would likely find unpalatable. In so concluding, I take into account the fact that
Respondent had an urgent business need to make these schedule changes, since it was apparently
short-handed after it let go of Arellano and Walker.108 In sum, I conclude that Respondent did
not violate Section 8(a)(1) & (5) of the Act by failing to negotiate with the Union about the work
schedule changes that it implemented on February 18.35

107 In this regard I would note that in his February 10 email, M Martin specifically asked E Martin what additional
information the Union needed, and requested a response by the end of the day Monday, February 13 because it
needed to implement the new schedule on February 18. Not only did E Martin not reply until late on Friday,
February 17, but then requested “additional” information that E Martin had either already supplied or had indicated
did not exist. I find that this delayed response was not reasonable or illustrative of the good faith and cooperative
spirit required in these circumstances.
108 See, Bottom Line Enterprises, 302 NLRB 373 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994). There is an
insinuation in the General Counsel’s brief to the effect that since Respondent had unlawfully let go of these two
employees, whatever pickle it found itself in was a product of its own making. In other words, that’s “just too bad”
and if Respondent needed to shut down production, so be it. I reject such insinuation—that’s not how things work
in the world of labor law. Respondent’s only other alternative to avoid impacting production would have been to
bring in more workers from AJ Industries to take up the slack, an action that would have certainly also been alleged
as unlawful by the General Counsel.
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With regard to the changes that took place on April 7 and July 5, the story is far simpler
than regarding the February 18 changes. Simply put, Respondent neither notified nor bargained
with the Union about these changes. Indeed, as discussed below, it completely by-passed the
Union and dealt directly with its employees about these changes. Accordingly, I find that 5
Respondent violated Section 8(a)(1) & (5) of the Act by failing to negotiate with the Union about
the work schedule changes that it implemented on April 7 and July 5.109
8. Bypassing the Union and dealing directly with employees
10
The complaint alleges that about March 29 and June 21, Respondent bypassed the Union
and dealt directly with employees regarding their working schedules. This is directly related to
the work schedule changes discussed above. As discussed in the facts section, the evidence
showed that on or about those dates employees went to management after having agreed amongst
themselves to “swap” or trade schedules, and that management approved and switched those 15
schedules accordingly.
The Board has held that an employer unlawfully deals directly with employees when (1)
it was communicating directly with union-represented employees; (2) the discussion was for the
purpose of establishing or changing wages, hours, or working conditions; and (3) such 20
communication was made to the exclusion of the union. El Paso Electric Co., 355 NLRB 544
(2010), and cases cited therein. All three criteria are met in this case. Respondent’s defense that
this is simply the way it always did things—internally and informally—lacks merit in the face of
the new reality that these employees were now represented by the Union. Accordingly, I find
that Respondent violated Section 8(a)(1) & (5) of the Act as alleged.25
9. The implementation of a new cell phone policy
This allegation, as discussed in the facts section, refers to the new cell phone use policy
that Respondent imposed on Servin during the meeting on April 4 when he was almost 30
discharged. As discussed in the facts section, this policy was never in place before, and appears
to have been applied only to Servin. I conclude that by not notifying, or bargaining with, the
Union about this policy, Respondent violated Section 8(a)(1) & (5) of the Act as alleged.
10. The use of third party workers to perform bargaining unit work35
This allegation refers to the alleged use by Respondent of AJ Industries (AJI) employees,
a third-party contractor, to perform bargaining unit work, without bargaining with the Union. As
discussed in the facts section, however, I concluded that the evidence was insufficient to

109 Respondent cites Raytheon Network Centric Systems, 365 NLRB No. 161 (2017) for the proposition that
employers need not bargain about any changes that are similar in kind and degree with an established past practice,
and since Respondent had made these type of scheduled changes prior to the advent of the Union, it needed not
bargain about these. This is an exceptionally broad reading of Raytheon that would essentially eviscerate
employers’ duty not to impose unilateral changes, since it is reasonable to assume that all employers had wages,
hours, working conditions—and policies and procedures relating to these—in place prior to any union showing up.
Such interpretation of Raytheon is not only unwarranted, but directly contrary to the Supreme Court’s ruling in
NLRB v. Katz, 369 U.S. 736 (1962), which Raytheon relies on.
JD(SF)–15–18
46
establish that in fact AJI workers were used to perform bargaining unit work. Indeed, the
evidence failed to show that AJI workers were doing anything , in nature or scope, different that
they had done for years at Respondent’s facility prior to the advent of the Union. I therefore
conclude that the General Counsel did not establish burden of proof to support this allegation by
the preponderance of the evidence. The allegation is therefore dismissed.5
11. The refusal to release Servin to attend negotiations
The complaint alleges that Respondent refused the Union’s request to grant Servin unpaid
time off to attend the collective bargaining negotiations, thus violating Section 8(a)(1) & (5) of 10
the Act. As described in the facts section, however, it is not clear that Respondent flatly refused
the Union’s request, but rather informed the Union that Servin would have to follow the usual
procedure and request (unpaid) personal time off from his immediate supervisor, Sharron. No
further communications were thereafter exchanged by the parties about this subject, and there is
no evidence as to whether Servin ever made such request to his supervisor. The General Counsel 15
has not explained its theory of a violation, however, nor proffered any authority in support of the
complaint’s allegation in these circumstances. While the Board has held that under certain
circumstances an employer violates Section 8(a)(1) & (5) if it refuses a union’s request to grant
an employee unpaid leave to take part in negotiations, those were situations where the employer
refused such requests while at the same time refused to meet for negotiations during those 20
employees’ nonworking hours or days. See, e.g., Ceridian Corporation, 343 NLRB 571 (2004),
enfd. 435 F.3d 352, 356 (D.C. Cir. 2006), and cases cited therein. Even assuming that
Respondent firmly denied the request for Servin’s release, however, there is no evidence or
allegation that Respondent refused to meet for bargaining purposes during days or times when
Servin was not working. Accordingly, I conclude that Respondent did not violate the Act as 25
alleged, and dismiss this allegation of the complaint.
12. Respondent’s alleged unlawful conduct during negotiations
The complaint alleges that Respondent engaged in conduct that exhibited bad faith during 30
collective bargaining negotiations by not proffering any proposals or counter-proposals during
bargaining (through July 18), and by not vesting its bargaining representative with the authority
to agree to any proposals.
As described in the facts section, the parties had their first face to face bargaining 35
meeting on or about April 27. The Union had earlier, on March 30, sent Respondent via email a
proposal (in PDF format) for a collective-bargaining agreement (CBA), consisting of a copy of a
proposed CBA—without wages or benefits. The Union handed a hard-copy of this proposal to
Respondent on April 27 as well. At the time, M Martin requested that the Union provide an
electronic copy of their proposal in a “Word” format, so that Respondent could edit or “red-line” 40
the proposals for the sake of convenience. The Union did not agree to provide their proposal in
this type of format. The parties met again on May 23, and the Union submitted an amended
CBA proposal which included wages and benefits. The parties had additional meetings on July
11, July 18, and July 26, and during this time Respondent did not submit a proposal or counter-
proposal of its own to the Union. There is sparse evidence as to exactly what the parties said 45
during these meetings, but it appears that they were discussing the Union’s proposals.
JD(SF)–15–18
47
On July 26—the period beyond the July 18 marker the complaint alleges Respondent acted
unlawfully—Respondent provided the Union with details as to why it was rejecting its proposals.
Additionally, on July 18, for the first time, M Martin, who was Respondent’s main negotiator,
informed the Union that he did not have the authority to agree to any proposals absent agreement
or confirmation by Respondent’s board of directors. In his testimony, M Martin admitted that 5
even if he came to a “meeting of the minds” (or agreed “in concept”) with the Union regarding
any individual proposal, he had no “final” authority to finalize such agreement absent approval
by the board of directors.
In determining whether a party has engaged in bad-faith bargaining during negotiations, 10
the Board examines the totality of the circumstances. First, with regard to the allegation that
Respondent showed bad faith by not making any proposals or counter-proposals during the
period from April 27 to July 18, as alleged in the complaint, I note that by this time the parties
had met only four times for bargaining.110 In this regard, the Union’s first complete proposal
was not submitted until May 23, their second meeting, at the earliest—indeed, E Martin testified 15
that he had submitted his complete proposed CBA proposal in June or July. From the testimony
of M Martin and E Martin, it appears that the parties spent most of the time in these first 3–4
sessions discussing the Union’s proposals, with Respondent asking questions and the Union
providing explanations as to what its proposals meant and as to why it wanted certain things.
While it is undisputed that Respondent made no proposals during these first four bargaining 20
sessions, the General Counsel has cited no authority for the proposition that failing to make
proposals or counter proposals by itself, or in the context of only four meetings, is unlawful or
constitutes bad faith. Indeed, there appears to be Board precedent to the contrary. See e.g.,
WCUE Radio, Inc., 209 NLRB 181, 188 (1974) (“ [I]n view of the fact that the statutory
bargaining obligations of a party do not require him to make a concession, it is questionable 25
whether Respondent was legally required to make any counter proposals at all.”). Rather, a
party’s failure to make proposals is one of various factors that may be examined in determining
whether it was bargaining in bad faith. In this instance, in view of all the circumstances, I
conclude that Respondent’s failure to make any proposals or counter-proposals during their first
four meetings—by July 18, the period alleged in the complaint—is insufficient to establish a 30
pattern of conduct indicative of bad faith. Simply put, this was very early in the negotiating
process. By this early point, it is too premature to judge the totality of the circumstances
typically relied upon by the Board in determining whether Respondent had engaged in a pattern
of bad faith bargaining. Accordingly, this allegation of the complaint is dismissed.111
35
Regarding the allegation that Respondent failed to vest (or cloak) its negotiator,
M Martin, with the authority to “enter into binding agreements,” as the complaint alleges, I am
not persuaded that the facts support this allegation either. The record shows that M Martin had
the authority to negotiate and reach tentative agreements, subject to the ratification by either

110 This was by M Martin’s account, because E Martin was not very precise with his dates or exact number of
meetings. There is no evidence as to why it took the parties so long to get negotiations going, or what caused the
seemingly long pauses thereafter, but there is no allegation in the complaint that Respondent engaged in delay or
dilatory tactics to stall negotiations.
111 The record indicates that Respondent made its first counter-proposals in late November, but the record isn’t clear
about how many meetings the parties had between July and November, nor exactly what occurred in those meetings.
In any event, the complaint marks the period ending on July 18 as the time frame during which Respondent
unlawfully did not make proposals or counter-proposals, and thus that is the time period at issue herein.
JD(SF)–15–18
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Dramise or the board of directors of which he was part. The practice of making agreements
subject to ratification is common, both by employers and unions. Indeed, unions in many
instances have to submit negotiated agreements to their membership for ultimate ratification and
approval, pursuant to their constitutions and by-laws. See, Valley Cent. Emergency Veterinary
Hosp., 349 NLRB 1126, 1128 (2007) citing Teamsters Local No. 173 v. NLRB, 788 F.2d 27, 32 5
(D.C. Cir. 1986) (“[i]t is very commonplace in the United States for bargaining parties to reach
tentative agreements subject to ratification”). Parties, of course, are obligated to provide clear
and timely notice of any such limitation on their negotiators’ authority to enter into a final
agreement. In that regard, the Board has held that any limitation placed on the negotiating
authority of a bargaining representative must be disclosed to the other party before any 10
agreement is reached. Teamsters Local 771 (Ready-Mixed Concrete), 357 NLRB 2203, 2206
(2011), and cases cited therein.
In this case, M Martin provided the Union with timely notice of the limitations on his
authority, on their 4th bargaining meeting on or about July 18, before any agreements of any type 15
were reached. Accordingly, I conclude that this allegation of the complaint lacks merit and is
therefore dismissed.
13. Respondent’s alleged failure to notify and bargain with the Union prior to
terminating Arellano, Walker and Servin20
In paragraph 6(o) the General Counsel alleges that the termination of these employees
was a mandatory subject of bargaining, and that Respondent’s failure to bargain prior to
imposing these action violated Section 8(a)(1) &(5) of the Act. In Total Security Management,
364 NLRB No. 106 (2016), the Board re-affirmed a doctrine that it had earlier announced in 25
Alan Ritchey, Inc., 359 NLRB 396 (2012), a case that in 2014, was subsequently invalidated by
the Supreme Court pursuant to its ruling in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In
Total Security, the Board ruled that in the interim period between a union’s certification and the
existence of an initial collective-bargaining agreement, employers have an obligation to notify
the union and give it an opportunity to bargain before imposing discretionary and serious (or 30
status-changing) discipline on an employee in the bargaining unit. The Board explained that this
obligation to bargain is more limited than applicable to other terms and conditions of
employment, and that the parties need not reach an impasse before the employer proceeds to
impose discipline, although it remains obligated to continue bargaining after the imposition of
such discipline.35
Needless to say, given the relative youth of this doctrine, and lack of additional cases post
Total Security, many questions remain as to the “nuts-and-bolts” of how to apply this new policy
the specific situations. For example, it seems reasonable to presume that as with any other issue
or situation that requires bargaining, bargaining must be requested by the union after it initially 40
receives notification of the intended discipline, before the obligation is applicable. Likewise,
given the lack of the requirement that impasse be reached before the employer can proceed to
impose the discipline, questions remains to whether one single meeting, even a short one, can
satisfy an employer’s requirement to bargain, particularly if the evidence suggests, as it does
here, that the employer had pretty much committed itself to an irrevocable course of action. 45
Additional questions remain as to the exact burden of proof required of the General Counsel as to
JD(SF)–15–18
49
this issue, and about the quantity or quality of information employers must provide the union
prior to that initial consultation.
Unfortunately, neither party in this case addressed the issue(s) during the hearing, or in
their briefs, perhaps because it was considered a minor issue in light of the multiple allegations 5
involved, or perhaps because there is uncertainty whether this doctrine will remain viable. As of
the moment, however, it is current Board law, so I will attempt to address it, albeit briefly.
First, regarding Arellano and Walker, it appears that Respondent did notify the Union
about its intent to terminate their employment before going forward with such action, and that 10
some discussions were conducted by the parties regarding Arellano during their February 9
meeting. It is not clear to me on the current record, how much information was provided by
Respondent about the specific issue of Arellano or Walker—or whether that information can be
deemed sufficient to satisfy the employer’s initial requirements. It is not clear either whether the
union specifically requested bargaining about Arellano, although it appears (on the emails) to 15
have requested bargaining about the “lay-offs,” which would cover Walker.
Based on the above, I am not persuaded that the General Counsel met its burden of proof
on this issue with regard to Arellano and Walker, and therefore I dismiss the allegations as to
them. Regarding Servin, there is no evidence that Respondent ever notified the Union before it 20
discharged him. Accordingly, I conclude that Respondent violated Section 8(a)(1) & (5) of the
Act by not notifying the Union, and giving it an opportunity to bargain, before discharging
Servin.
CONCLUSIONS OF LAW25
1. Apex Linen Service, Inc. (Respondent) is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
2. International Union of Operating Engineers Local 501, AFL–CIO (Union) is a labor 30
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by maintaining a rule in its employee
handbook that directed its employees to refrain from engaging in on-line activities that might
embarrass Respondent or might be detrimental to Respondent’s business; by interrogating 35
employees regarding their union activities or support for the Union; by creating the impression
that its employees’ union activities were under surveillance; and by threatening adverse
consequences if its employees chose the Union as their representative.
4. Respondent violated Section 8(a)(1) and (3) of the Act by discharging its employees 40
Adam Arellano (on February 13, 2017) and Joseph Servin (on May 2, 2017) and laying off its
employee Charles Walker on February 15, 2017, because they supported the Union; and by
prematurely closing the engineers’ break room in retaliation for their support of the Union.
5. Respondent violated Section 8(a)(1) and(5) of the Act by failing to provide the Union 45
with information it requested; by failing to bargain with the Union regarding the effects of
JD(SF)–15–18
50
closing the engineers’ break room; by failing to bargain with the Union regarding the schedule
changes on or about April 7 and July 5, 2017; by by-passing the Union and bargaining with its
employees directly about March 29 and June 21, 2017; by failing to bargain with the Union
regarding the implementation of a new cell phone policy; and by failing to give notice to the
Union and an opportunity to bargain prior to discharging Servin.5
6. Respondent has not otherwise violated the Act as alleged in the compliant.
7. The unfair labor practices committed by Respondent, as described above, affect
commerce within the meaning of Section 2(6) and (7) of the Act.10
REMEDY
The appropriate remedy for the Section 8(a)(1)(3) and (5) violations I have found is an
order requiring Respondent to cease and desist from such conduct and take certain affirmative 15
action consistent with the policies and purposes of the Act.
Specifically, the Respondent will be required to cease and desist from: maintaining a rule
in its employee handbook that directs its employees to refrain from engaging in on-line activities
that might embarrass Respondent or be detrimental to Respondent’s business; from interrogating 20
employees regarding their union activities or support for the Union; from creating the impression
that its employees’ union activities is under surveillance; from threatening adverse consequences
if its employees chose the Union as their representative; from discharging or laying off its
employees because they support the Union; from retaliating in any manner against their
employees for supporting of the Union; from refusing to provide the Union with information it 25
requested; from refusing to bargain with the Union regarding the effects of closing the engineers’
break room; from failing to bargain with the Union regarding schedule changes; from by-passing
the Union and bargaining with its employees directly; from failing to bargain with the Union
regarding the implementation of a new cell phone policy; and from failing to notify the Union
and giving it an opportunity to bargain before terminating employees.30
Respondent shall also cease and desist, in any other manner, from interfering with,
restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act.
Having found that Respondent unlawfully discharged Arellano and Servin, and 35
unlawfully laid off Walker, Respondent must offer them reinstatement to their former jobs or if
those jobs no longer exists, to substantially equivalent positions without prejudice to their
seniority or any other rights or privileges previously enjoyed. The Respondent shall make
Arellano, Servin and Walker whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them. The make whole remedy shall be computed in 40
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), 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). In accordance with King Soopers, Inc., 364 NLRB No. 93
(2016), the Respondent shall compensate them for search-for-work and interim employment
expenses regardless of whether those expenses exceed their interim earnings. Search-for-work 45
and interim employment expenses shall be calculated separately from taxable net backpay, with
JD(SF)–15–18
51
interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014), the Respondent shall compensate them 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 5
the amount of backpay is fixed either by agreement or Board order, file with the Regional
Director for Region 28 a report allocating backpay to the appropriate calendar year for each
employee. The Regional Director will then assume responsibility for transmission of the report
to the Social Security Administration at the appropriate time and in the appropriate manner.
Respondent shall also be required to remove from its files any references to the unlawful 10
termination of Arellano, Servin and Walker and to notify them in writing that this has been done
and that their terminations will not be used against them in any way.
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in the Employer’s facility or wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its 15
contents. 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 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 20
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since [date of first unfair labor practice]. When the notice is issued
to the Employer, it shall sign it or otherwise notify Region 28 of the Board what action it will
take with respect to this decision.
Accordingly, based on the foregoing findings of fact and conclusions of law, and on the 25
entire record, I issue the following recommended112
ORDER
Respondent, Apex Linen Service, Inc., Las Vegas, Nevada, its officers, agents, 30
successors, and assigns, shall
1. Cease and desist from:
(a) Engaging in any of the conduct described immediately above in the remedy 35
section of this decision;
(b) In any other like or related manner interfering with, restraining, or coercing
employees in their exercise of the rights guaranteed them by Section 7 of the Act.
40

112 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD(SF)–15–18
52
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, if it has not already done so, offer
Arellano, Servin and Walker full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority 5
or any other rights or privileges previously enjoyed.
(b) Make Arellano, Servin and Walker whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set forth
in the remedy section of this decision.
(c) Furnish the Union the information it requested, as specifically described above in 10
items 1, 2, 4, 5, 8, 9, and 10 of the information requests discussed in the analysis
section.
(d) Upon request, bargain with the Union regarding the effects of closing the
engineers’ break room, and the engineers’ schedule changes.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional 15
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.20
(f) Within 14 days after service by the Region, post at all its facility in Las Vegas,
Nevada, where notices to employees are customarily posted, copies of the attached
notice marked “Appendix.”113 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive 25
days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the 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. Reasonable steps shall be taken by the Respondent to 30
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 facilities 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 35
February 2, 2017.

113 If this Order is enforced by a Judgment of the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” Shall Read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)–15–18
53
(g) Within 21 days after service by the Region, file with the Regional Director for
Region 28, a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
5
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act
not specifically found
Dated, Washington D.C. June 6, 2018
10
Ariel L. Sotolongo
Administrative Law Judge.
15
-
JD(SF)–15–18
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
In recognition of these rights, we hereby notify employees that:
WE WILL NOT maintain a rule in our employee handbook directs our employees to refrain from
engaging in protected concerted activity by refraining from posting on-line comments about the
Company that might embarrass other employees or be detrimental to the Company’s business;
WE WILL NOT interrogate our employees about their union activities or create the impression that
their union activities are under surveillance;
WE WILL NOT threaten our employees with adverse consequences if they choose to support the
International Union of Operating Engineers Local 501, AFL–CIO (Union), or any other union;
WE WILL NOT, discharge, lay-off or otherwise discriminate against you because you have
supported the Union;
WE WILL NOT prematurely close a break room in retaliation for our employees supporting the
Union;
WE WILL within 14 days from the date of the Board’s Order, offer Adam Arellano, Charles
Walker and Joseph Servin full reinstatement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Adam Arellano, Charles Walker and Joseph Servin whole for any loss of earnings
and other benefits resulting from their termination, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference
to the unlawful discharges or lay-offs of Adam Arellano, Charles Walker and Joseph Servin and
JD(SF)–15–18
WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that
the discharge or lay-off will not be used against them in any way.
WE WILL NOT refuse to bargain with the Union regarding changes to the work schedules of
employees represented by the Union, or by-pass the Union and deal directly with such
employees.
WE WILL NOT implement any changes in the wages, hours, or working conditions of our
bargaining unit employees, including taking disciplinary action, without first notifying the Union
and giving it an opportunity to bargain.
WE WILL NOT refuse to bargain in good faith with the Union regarding disciplinary action taken
against employees represented by the Union, or prior to imposing discipline to such employees
in the future.
WE WILL NOT fail or refuse to furnish the Union with requested information that is relevant and
necessary to the Union’s performance of its functions as the representative of the employees in
the bargaining unit;
WE WILL, upon request, bargain with the Union as the exclusive collective bargaining
representative of employees in the following appropriate bargaining unit concerning terms and
conditions of employment:
All full-time, regular part-time and extra board Engineers and Utility Engineers employed
by the Employer at its facility located in Las Vegas, Nevada; excluding, all other
employees, office clerical employees, guards and supervisors as defined in the Act.
WE WILL NOT in any like or related matter interfere with, restrain, or coerce you in the exercise of
rights listed above.
APEX LINEN SERVICE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions.
To find out more about your rights under the Act and how to file a charge or election petition, you may
speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
JD(SF)–15–18
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-192349 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-416-4755.