Boar's Head Provisions Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

May 14, 2020

07-CA-209874 (N.L.R.B. May. 14, 2020)

JD–21–20
Holland, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
BOAR’S HEAD PROVISIONS CO., INC.
and 07‒CA‒209874
07‒CA‒212031
UNITED FOOD & COMMERCIAL WORKERS
INTERNATIONAL UNION (UFCW), AFL‒CIO
Colleen Carol, Esq. and
Steven Carlson, Esq.
for the General Counsel.
Sarai K. King, Esq.
for the Charging Party.
Richard D. Alaniz, Esq.,
Brett Holubeck, Esq., and
John E. Cruickshank, Esq.1
for the Respondent.
DECISION
STATEMENT OF THE CASE
Thomas M. Randazzo, Administrative Law Judge. This case was tried in Grand Rapids,
Michigan, on December 10‒14, 2018, April 29‒30, and May 1‒3, 2019. It arose out of a series of
unfair labor practice charges filed by the United Food & Commercial Workers International Union
(UFCW), AFL‒CIO (the Union or Charging Party) against Boar’s Head Provisions Co., Inc. (the
Respondent). The instant charges in Case No. 07‒CA‒209874 were filed on November 9, 2017,2
and the charges in Case No. 07‒CA‒212031 were filed on December 21, 2017.3 The General
Counsel issued the consolidated complaint and Notice of Hearing (complaint) on April 27, 2018,
1 After the first of the 2 weeks of trial, John E. Cruickshank withdrew as counsel for the Respondent.
2 All dates are in 2017 unless otherwise indicated. Amended charges were filed in Case 07‒CA‒
209874 on January 18, 2018, February 13, 2018, February 28, 2018, and March 30, 2018.
3 Amended charges were filed in Case 07‒CA‒212031 on February 13, 2018 and March 30, 2018.
JD–21–20
2
alleging 35 unfair labor practice violations. The Respondent denied in its answer to the complaint
that it violated the Act as alleged.4
At the close of the hearing the General Counsel’s motion to withdraw four complaint
allegations (5(b), 8(a), 11, and 15), and his motion to amended 12(a)‒(d) from alleging that 5
Respondent denied off duty employees’ access to the parking lots to alleging that Respondent
engaged in surveillance and created the impression that employee’s union activities were under
surveillance, was granted. In addition, the General Counsel’s motion in his post-hearing brief to
withdraw seven more complaint paragraphs (7(b), 8(c), 13, 14, 16(c), 18(b) and 19) was also
granted. The remaining complaint allegations therefore assert that the Respondent violated Section 10
8(a)(1) of the Act by: (1) threatening employees with the loss of benefits by telling them
negotiations would start from scratch of they selected the union; (2) interrogating employees about
their Union membership and activities; (3) soliciting employee grievances and promising to
remedy those grievances if employees abandoned their support for the Union; (4) engaging in
surveillance and creating the impression of surveillance that employee’s union activities were 15
under surveillance; (5) soliciting employee complaints and promising increased benefits and
improved terms and conditions of employment if the employees did not select the Union as their
bargaining representative; (6) telling employees that the Union would not be able to get them
reinstated if Respondent terminated them, thereby informing them it would be futile for them to
select the Union; and (7) maintaining an overly broad dress code. The complaint further alleges 20
that the Respondent violated Section 8(a)(3) and (1) of the Act by: (1) suspending and disciplining
union supporter Walter Aguilar; (2) increasing wages and benefits of union supporter Nelson
Langarita; (3) increasing the wages of union supporter Apolonia Rios; (4) improving the
attendance and vacation policies for all employees; and (5) providing maintenance employees with
hand tools in order to discourage their Union membership and activities.25
On the basis of the entire record,5 my determination of credible evidence,6 and after
considering the briefs filed by the General Counsel, the Union, and the Respondent,7 I make the
following:
30
4 On November 8, 2018, the Respondent filed a Motion for Partial Summary Judgment with the Board
requesting dismissal of complaint para. 24 which alleged that “In about August 2017, Respondent increased
the benefits of its employees by improving that attendance and vacation policies.” In an order dated
December 6, 2018, the Board denied Respondent’s motion, finding that Respondent failed to establish that
there are no genuine issues of material fact warranting a hearing.
5 By Order dated July 16, 2019, the Respondent’s “unopposed Motion for Corrections To Transcript”
was granted. Abbreviations used in this decision are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint
Exhibit; “GC Exh.” for General Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for the
General Counsel’s Brief; “R. Br.” for Respondent’s Brief; and “RR. Br.” for Respondent’s Reply Brief.
6 In making my findings regarding the credible evidence, including the credibility of witnesses, I
considered the testimonial demeanor of such witnesses, the content of their testimony, and the inherent
probabilities based on the record as a whole.
7 On September 18, 2019, the Respondent filed a post-hearing motion for leave to file a reply brief and
it attached its reply brief. The motion was granted and the reply brief has been considered in this matter.
JD–21–20
3
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been a corporation with an office and place of business in Holland, 5
Michigan, and it has been engaged in the manufacture and non-retail sale and distribution of
delicatessen products. During the calendar year ending December 31, 2017, Respondent, in
conducting its operations, purchased and received at its Holland, Michigan facility, goods valued
in excess of $50,000 directly from points outside the State of Michigan. The Respondent admits,
and I find, that it has been an employer engaged in commerce within the meaning of Section 2(2), 10
(6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
15
A. The Facts
1. Background
The Respondent is headquartered in Sarasota, Florida, where it operates eight facilities 20
throughout the United States processing and distributing meats, including five manufacturing and
three distribution facilities. Three manufacturing facilities—Holland, Michigan, New Castle,
Indiana, and Forrest City, Arkansas—are non-union facilities. The Respondent’s manufacturing
facilities in Jarratt, Virginia and Petersburg, Virginia have employees represented by the UFCW.8
(Tr. 33‒35.) There are approximately 600 employees at the Holland facility, with around 540 25
hourly employees that work three shifts. (Tr. 36, 666, 1145.) The plant is separated into the “Raw”
side, where raw meat is brought in to be cooked, and the “Ready to Eat” or “RTE” side, where the
cooked meat is packaged, boxed, and distributed. The production employees at the Holland facility
are predominantly Spanish-speaking.
30
The Respondent’s management personnel involved in this case include: Scott Habermehl,
director of human resources (located at corporate headquarters in Florida); Larry Helfant, the
senior vice president of operations (also located at the corporate headquarters); Bradley Rurka,
Holland plant manager; Shannon Van Noy, human resources business partner; Leah Cochran, HR
senior coordinator; Ronald Ortega, facility security supervisor; Guadalupe Rodriguez, supervisor 35
of sanitation; Vincente Nunez, senior HR coordinator; Maria Mendoza, production supervisor, and
Carlos Giron, production assistant supervisor.9
Shannon Van Noy, the highest-ranking human resource manager at the Holland facility,
oversees the human resources representatives who are responsible for effectuating the labor 40
relations and personnel policies within the plant. (Tr. 643.) Human resource representatives
8 The Respondent also has distribution facilities in Brooklyn, New York and Edison, New Jersey,
which have employees represented by the UFCW Local 342, and one in Columbus, Ohio, which is a non-
union facility. (Tr. 34‒35, 83.)
9 The Respondent admitted that these individuals are supervisors and agents of the Respondent within
the meaning of Sec. 2(11) and 2(13) of the Act, respectively.
JD–21–20
4
Vincente Nunez and Rodolfo Rodriguez are both fluent in Spanish and serve, when needed, as
interpreters for the managerial staff and the employees. (Tr. 1120‒1121, 1215‒1216.) Van Noy
and the Holland human resources staff report to Habermehl.
2. The Respondent’s policies and rules in effect during the time of the alleged 5
unfair labor practice violations
In 2017 and at all material times, the Respondent maintained an employee handbook for
employees which included stated examples of behavior that Respondent considered “Class II
Offenses,” such as misconduct that is “serious and will result in progressive discipline.” (GC Exh. 10
2.) Included in the Class II offenses is provision 2.9 which provides: “… wearing unauthorized
badges, pins or other items on helmet or exterior garments.”
In addition, in the summer of 2017, the Respondent maintained vacation and attendance
policies for employees which had been effective since around 2015 and were the same at all its 15
non-union plants. (Tr. 805‒806; 1064.) Those policies, by their very nature, were intertwined.
(Tr. 806.) The Respondent was aware in 2015 that the insufficiencies in its vacation and attendance
policies were a main cause of employee dissatisfaction, and human resources regularly heard about
such concerns from employees.10 (Tr. 1064, 1563‒1564.) The policies did not provide for any
sick leave or vacation time for first year employees, and employees with 1‒3 years of seniority20
earned only 5 days of vacation, employees with 3‒10 year seniority earned 10 days, and employees
with 10 years of more seniority earned 15 days. (Tr. 1062, R. Exh 12.) Many employees therefore
incurred attendance points for any absences, even if they were related to documented medical or
family issues. Half-a-point was issued for a tardy or an absence under 4 hours, and absences of
more than 4 hours resulted in the issuance of a full attendance point. (Tr. 720‒721.) In addition, 25
while employees with higher seniority could use their vacation time for medical appointments, the
Respondent did not allow vacation time to be taken in any increments under 8 hours, so employees
had to take an entire day of leave for medical appointments even if they were of the shortest
duration. (Tr. 720‒721.) In the alternative, those employees could incur attendance points for
shorter absences and thereby risk being discharged after accumulating 10 points. (Tr. 1563‒1564.)30
The attendance policy also provided that attendance points accumulated by the employees
remained on their records and would only be removed or “drop off” after 60 days of perfect
attendance. (GC Exh. 7; Tr. 398, 400, 666, 710, 805, 849, 1043, 1563, 1642.) The policy effective
from 2015‒2017 differed from the earlier policy which allowed attendance points to be dropped 35
after 30 days of perfect attendance. (Tr. 398, 805.) It is undisputed that the 2015‒2017 vacation
and attendance policies were unpopular and a source of complaints by employees to management.11
(Tr. 805, 1039, 1064, 1563.) While the Respondent acknowledged the employees’ dislike of those
policies and the shortcomings those policies had on employee retention, Van Noy nevertheless
informed Habermhel in February 2017, months before the Union’s organizing drive, that she 40
believed the policies were “lenient.” (R. Exh. 12(j)(2).) Even though changes to the policies were
discussed by management from 2015 to 2017, no changes were made, approved, or announced
10 Cochran acknowledged that as far back as 2015, employees expressed their dissatisfaction with
Respondent’s vacation and attendance policies through employee “stay and exit interview.” (Tr. 1064.)
11 Habermehl admitted that he heard about “push back” from employees as early as 2015 concerning
the attendance policy and how long it would take to have attendance points drop off. (Tr. 1563‒1564.)
JD–21–20
5
prior to the commencement of the Union’s organizing drive in July 2017. (R. Exh. 12; Tr. 804‒
805.) In fact, efforts by Habermehl to enhance or change the policies to address employee turnover
at the facility had been steadfastly rejected by Respondent’s corporate management for 2 years
before the commencement of the Union’s organizing campaign. (R. Exh. 12; Tr. 853, 1538‒1539,
1583.) 5
In 2017, the Respondent also maintained a policy applicable to only its maintenance
employees where it required those employees to buy and provide their own tools. Under that
policy, the Respondent would loan the employees $500 to purchase their tools, but the employees
would then have to pay the Respondent back for those tools over time through payroll deductions. 10
(Tr. 366.)
3. The Union’s organizing campaign in August 2017
Although there is evidence of earlier union activity at the Holland plant, such as in 201615
when the Respondent found some unsigned union authorization cards at the facility, in the summer
of 2017 the UFCW International Union started an organizing drive at the Holland plant that Van
Noy described as the “most aggressive” organizing drive. (Tr. 733‒739.) The record reflects that
on August 9, 2017, Van Noy and Leah Cochran were aware that the Union organizers had visited
some of the Respondent’s maintenance employees and that those employees were considering 20
organizing. Those managers were also aware that one of the issues for those employees was the
Respondent’s requirement that they purchase their own work tools to perform their jobs. Van Noy
and other human resources employees, such as Cochran, immediately brought the Union
organizing efforts to Habermehl’s attention at corporate headquarters. (Tr. 65.) Habermehl
acknowledged that in his conversation with Cochran, she told him that the maintenance employees 25
in Holland were “unhappy” about having to purchase tools for work. (Tr. 65.) Habermehl, in turn,
notified Senior Vice President of Operations Larry Helfant of the Union’s campaign. In an email
dated August 9, Habermehl informed Helfant that the Union was organizing the maintenance
employees and he heard that the Union organizer “…promised that the Union would buy them
tools….and fix all of their lock out problems.” (GC Exh. 4.) Habermehl also stated that “[m]ost 30
concerning is that the employee said most of the maintenance guys are ready to sign [union
authorization] cards.” Habermehl and Helfant then agreed to coordinate a “strategy for
communicating [their] message.” (GC Exh. 4.)
4. The Company’s response to the Union’s organizing campaign35
The Respondent did not want its Holland facility to be unionized. (Tr. 649.) Upon learning
of the Union’s organizing drive, Respondent’s corporate and local management officials began to
research and strategize ways to provide dissatisfied employees with a remedy for the conditions of
work that could have pushed them towards unionization. (R. Exh. 12(r)(1), GC Exh. 8.) The 40
managers inquired from the other facilities exactly what items were purchased for or provided
employees, such as personal protective equipment (PPE), work boots/shoes, safety glasses, and
tools, and they discussed whether similar policies could be enacted at the Holland facility. (R.
Exh. 11 and 12.) Respondent also began to revisit the possibility of changing its attendance and
vacation policies. (R. Exh. 12; Tr. 1575‒1577.) In a document entitled “Explanation of Changes 45
to Policies,” which Respondent provided employees in late August 2017, the Respondent
acknowledged and informed the employees that it was “…in the process of determining whether
JD–21–20
6
other plants provide more PPE to their employees at no cost…, [and] [i]f true, changes will be
made so Holland employees are treated the same.” (GC Exh. 7.) Habermehl acknowledged that
after he learned of the Union’s organizing campaign, he was “involved in the investigation of what
was being paid…so that [he] could try and make it consistent at Holland.” (Tr. 1576‒1577.)
5
5. The mandatory meetings with employees in response to the Union’s organizing campaign
held by Scott Habermehl on or about August 21 and 22, 2017.
On August 21, 2017, within 2 weeks of learning about the Union’s campaign, Habermehl
travelled from the corporate headquarters in Florida to the Holland facility to personally deliver 10
Respondent’s message in response to the organizing drive. (Tr. 51‒52.) The Company’s response
was to “educate employees on signing union authorization cards” and to educate them on how the
election process worked. (Tr. 656.) The record reflects that when employees asked Habermehl
why he was there to talk to them, he told them that he visited every year and that was the reason
he was there. (Tr. 62‒63.) However, Habermehl acknowledged at trial that his stated reason was 15
not true, and that he was there for the Union organizing drive. (Tr. 62‒63.) In fact, he testified
that he moved his visit and meetings with employees up from a later scheduled date because
Cochran told him about the Union campaign. (Tr. 63‒64.)
On August 21 and 22, Habermehl delivered his message to all production and maintenance 20
employees on all three work shifts. Habermehl held five meetings, one on August 21 and four on
August 22, with each meeting lasting approximately 1-hour in duration. (Tr. 1588‒1595.) In those
meetings he delivered a power-point presentation without use of a script regarding unionization
and why it was not in the best interest of the employees. (GC Exh. 27; Tr. 52‒53.) The first
meeting was translated into Spanish by human resources employee Vicente Nunez, and the 25
remainder of the meetings were translated by Rodolfo Rodriquez. (Tr. 52‒54.)
At each of the meetings, Habermehl talked about the unionization process, compared the
wages of the employees at the unionized Jarret, Virginia facility with the wages of the employees
in Holland. (Tr. 394‒395.) He also discussed union authorization cards and what would happen 30
if the Respondent and Union conducted negotiations for a contract and what impact it would have
on employees. At the first meeting at 6:30 a.m., employees Walter Aguilar and Nelson Langarita
made statements about the benefits of the unionized workforce. In particular, Langarita made a
comment about the unionized employees having benefits, and Aguilar made a statement that
employees in the Virginia plant receive two pairs of boots for free. (Tr. 118, 132.) In addition, 35
employee Ascension Rios participated in the meeting he attended by asking why he had only 3
weeks of vacation after 19 years of work, when he deserved 4 weeks of vacation. (Tr. 265.)
According to Rios, Habermehl responded that that was “something…that they will be seeing on
[sic] the future.” (Tr. 265.)
40
With regard to Habermehl’s statements on how negotiations would work, the testimony
varied. Aguilar testified that in the 6:30 a.m. meeting he attended, Habermehl stated that
negotiations would start from “zero to the minimum and that a lot of benefits …could be lost.”
(Tr. 115‒117.) In addition, Apolonia Rio (Ascension Rios’ spouse) testified that Habermehl told
the employees in the meeting she attended that if the Union came in “we would start at zero.” (Tr. 45
394‒395.)
JD–21–20
7
Habermehl testified that when he was discussing negotiations, he did not say that
Respondent would start from zero, minimum wage,12 or “scratch.” (Tr. 73, 1496‒1511.) Despite
that denial, he did acknowledge that he mentioned “minimum wage” in a hypothetical where he
stated that if the Union asked for $50 an hour, the Company could respond with an initial starting
point of minimum wage. (Tr. 74.) He then went on to tell the employees that “when it was all 5
said and done, that we would find a place in the middle and that employees may have less or more
than they have now.” (Tr. 73.)
Unlike the testimony of Aguilar and Apolonia Rios, some employees did not recall that
Habermehl said negotiations would start from zero to the minimum. The evidence, however, 10
reflects that most of those employees did not attend the same meeting as Aguilar. Jorge Torres
attended the afternoon meeting and denied that Habermehl said negotiations would start from
scratch or zero. (Tr. 1183‒1186, 1196‒1197.) Employee Abigail Forsten also denied hearing
Habermehl say that negotiations would start from scratch or zero, but she did not specify which
meeting she attended. (Tr. 1157‒1159, 1166‒1169.) Likewise, employee Gabriela Esquivel 15
denied that Haberhehl said bargaining would start from scratch or zero, but she did not indicate
whether she attended the same meeting as Aguilar and she did not recall much about what
happened in the meeting she attended. (Tr. 1387‒1390.)
Van Noy denied that Habermehl stated that negotiations would start “from scratch” or from 20
zero, but she does not speak Spanish. (Tr. 795‒796.) Cochran, who is also fluent in Spanish,
testified that she attended 2‒3 of the meetings, but she did not specify which meetings she attended.
(Tr. 1065‒1070.) She denied that he stated bargaining would start “from scratch” because that
phrase does not exist in the Spanish language. (Tr. 1067‒1068.) However, Respondent witness
Rodolfo Rodriguez, who attended the first meeting, alluded to hearing Habermehl mention 25
statements similar to bargaining “from zero to the minimum,” testifying that at some point
Habermehl mentioned a “blank piece of paper” when talking about negotiations.13 (Tr. 1223‒
1224, 1250.)
Although the evidence does not establish that Habermehl used the exact phrase “bargain 30
from scratch” when discussing the Respondent’s bargaining approach if the Union was voted in,
there is conflicting testimony as to whether he said that negotiations would start from zero to the
minimum as attested to by Aguilar and Rios. As the trier of fact, a determination on the credibility
of these witnesses is therefore required. Credibility determinations may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ demeanor, the weight of the evidence, 35
established or admitted facts, reasonable inferences that may be drawn from the record as a whole,
and the inherent probabilities of the allegations. Double D Construction Group, 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility
findings need not be all or nothing propositions. Indeed, nothing is more common than for a judge 40
to believe some, but not all, of the testimony of a witness. Daikichi Sushi, 335 NLRB at 622; Jerry
Ryce Builders, 352 NLRB 1262, fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951).
12 The employees’ wages were higher than minimum wage. (Tr. 55‒56.)
13 Rodolfo Rodriguez also served as translator for all but the first meeting. (Tr. 1223‒1224.)
JD–21–20
8
My observation during the trial was that Aguilar appeared to be truthful and honest in his
demeanor, and he testified consistently14 and convincingly as to what was said at the meeting he
attended. Besides being a credible witness, Aguilar is a current employee of the Respondent,
which tends to be particularly reliable because his testimony goes against his pecuniary interests. 5
Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Shop-Rite Supermarket, 231 NLRB 500,
505 fn.22 (1977) (The testimony of current employees which is adverse to their employer is “given
at considerable risk of economic reprisal, including loss of employment…and for this reason is not
likely to be false”). Apolonia Rios was also a very credible witness who testified in a very honest
and forthright fashion. 10
Habermehl, on the other hand, was not a credible witness. His testimony at times appeared
less than honest15 and parts of his testimony were contradictory16 and not believable. He was also
evasive when questioned about the Company’s position on whether Respondent wanted the
Holland facility to remain union-free (Tr. 48‒51), and when testifying that he did not recall that 15
Leah Cochran told him a Union organizer had visited a maintenance employee and had a long talk
with him, or that she told him the organizer promised to buy the maintenance employees tools.
(Tr. 43‒44.) That testimony, besides being evasive, was immediately contradicted by evidence
that Habermehl, in an email dated August 9, 2017, notified Helfant that he “heard from Leah
[Cochran] that a maintenance employee stopped by and told her he had an organizer come to his 20
house last night…[and] [t]hey had a long talk and the organizer promised that the Union would
buy them tools….” (GC Exh. 4.) I therefore do not credit Habermehl’s denial that he told the
employees that bargaining would start from zero to the minimum.17
Accordingly, I find that the credible evidence establishes that Habermehl, in at least one 25
meeting with employees, stated that if the Union came in, negotiations would start at “zero to the
minimum.”
14 Aguilar testified on cross-examination that he was certain that Habermehl said negotiations would
start from zero or the minimum and that Respondent “could negotiate from “zero” to fifteen [dollars].” (Tr.
149‒155.) I find that any assertion by Aguilar that the term “bargain from scratch” was used in that meeting
is attributed to being an honest mistake because he did not testify in a way that conveyed a willingness to
deceive or a desire to be dishonest.
15 As mentioned above, when employees asked Habermehl why he was there to talk to them, he
responded that he visited every year and that was the reason. (Tr. 62‒63.) However, Habermehl admitted
at trial that his stated reason was not true, and that he was in fact there in response to the Union’s organizing
drive. (Tr. 62‒63.)
16 Habermehl denied that he told employees that Respondent would start negotiations by proposing
minimum wage, but that was contradicted by his sworn affidavit provided to the government during its
investigation of the charges in this case, which reflects that he stated: “I said that the Union may start off
by proposing a starting wage of $50 per hour and we my counter with minimum wage.” (Tr. 55‒57.)
17 I further find that generally, in situations where the testimony from Respondent’s witnesses
conflicted with that from the General Counsel’s witnesses, the General Counsel’s witnesses were more
credible and, for the most part, testified in convincing and forthright manners. I particularly find that
Respondent witness Vicente Nunuz was unsure of himself when testifying, and I do not credit his denial
that Habermehl said negotiations would start from zero or the minimum in the morning meeting on August
21. (Tr. 1120‒1125.) He did mention, however, that Habermehl said bargaining would start at minimum
wage. (Tr. 1124‒1125.)
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6. The Respondent’s handout to employees titled “Boar’s Head Brand” informed employees that
if a union in voted in, negotiations will not start at current wages and benefits,
but instead from zero or the minimum allowed by law.
5
Besides Habermehl’s meeting with employees on August 21 and 22, the subject of
negotiations and how they would work if the Union was selected by the employees as their
bargaining representative was also addressed by the Respondent in a one-page document provided
to employees on or about September 1, 2017, entitled “Boar’s Head Brand.” (Tr. 68, GC Exh. 6.)
In that letter, the Respondent informed employees that negotiations would not start from what the 10
employees currently had, but instead the negotiations would start at “zero or the minimum allowed
by law. That particular statement read:
If a union gets in, will negotiations start with what we already have? No. If a union
is voted in, negotiations will not start at current wages and benefits. Nobody knows 15
what the final outcome of the contract will be because each item is negotiated
starting with zero or the minimum allowed by law. It could be more but it could be
less. (GC Exh. 6.)
Shannon Van Noy testified that the “Boar’s Head Brand” document was attached to the 20
employees’ paychecks, and that it was an accurate reflection of what Habermehl discussed in his
meetings with employees.18 (Tr. 854‒856.)
7. Supervisor Guadalupe Rodriguez’s interrogation and statements to employees on or about
August 24, 2017.25
The Respondent’s description of how negotiations would work if the Union was selected
by the employees was further addressed on or about August 24, 2017, in a conversation that Walter
Aguilar had with his supervisor, Guadalupe Rodriguez, Jr. (Tr. 98‒100, 119‒120, 170‒173, 901‒
907.) Aguilar testified that he was a strong union supporter, that he handed out union authorization 30
cards in the lunchroom at work, and that he did not try to hide it. (Tr. 155‒156, 249.) Aguilar
testified that he was approached by Rodriguez while working on the line and Rodriguez asked him
why he wanted the Union or what was the point of having a union. (Tr. 119‒120, 170‒174.)
Aguilar told him that he wanted the Union to take off pressure, be appreciated, and that he wanted
the Union to help bring change. (Tr. 170.) Rodriguez responded that the Union was “no good,” 35
18 In its post-hearing brief, the Respondent asserts that during Van Noy’s testimony concerning the
“Boar’s Head Brand” exhibit (GC Exh. 6), she was “temporarily confused” about the “exhibit numbers”
and that she “erroneously so testified” that the document was an accurate reflection of what Habermehl
discussed in his meetings. (R. Br. p. 29.) That assertion, however, is not supported by the record evidence.
Contrary to the Respondent’s assertion, there is no evidence establishing that Van Noy was confused in any
way about the exhibit or her testimony. In fact, she was shown the exhibit by Counsel for the General
Counsel and acknowledged that it was given to employees in their paychecks. (Tr. 854.) She also clearly
acknowledged that the document was an accurate reflection of what Habermehl told employees in his
meetings where he used a Power Point. (Tr. 854.) It is also important to note that Respondent’s contention
is further belied by the fact that Van Noy never testified that she was in any way confused regarding her
testimony, despite the fact that the Respondent had ample opportunity to elicit such testimony on her
redirect examination. (Tr. 873‒875.)
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10
that he had previously worked with a union and the union only represented people who did not
want to work, and that the employees would “feel sorry about it.” (Tr. 119‒120, 170‒173.)
Aguilar testified that Rodriguez also told him that if the Union got in the Respondent would
negotiate from zero to minimum. (Tr. 119‒120.)
5
Rodriguez knew the Respondent did not want the Holland plant to be unionized and that
Aguilar was a union supporter. (Tr. 98‒100, 902.) Rodriguez admitted to having a conversation
with Aguilar about the Union in late August after Habermehl’s meetings, while they were on the
production line. He also admitted the majority of the statements attributed to him by Aguilar. (Tr.
98‒100, 901‒906, 914.) In particular, he admitted that he started the conversation by asking 10
Aguilar why he wanted or needed a union at the shop, and that Aguilar responded that the
Respondent was short-staffed and needed employees. (Tr. 98‒100, 901‒906.) Rodriguez testified
that he also told Aguilar that the employees could lose their bonuses and the company picnics.
(Tr. 100, 905‒906, 914.) Rodriguez, however, denied stating that negotiations would start from
zero to minimum. (Tr. 906‒907.) 15
Since Rodriguez’ testimony differs from Aguilar’s assertion that he stated negotiations
would start from zero or minimum if the Union was chosen by the employees, I must make
determinations on the credibility of these witnesses. As mentioned above, I found that Aguilar
was a truthful and honest witness. He also testified consistently and convincingly regarding his 20
conversation with Rodriguez. Rodriguez, while admitting most of the statements attributed to him,
nevertheless denied stating that negotiations would be from zero to minimum. His denial in that
regard was simply not credible or believable. When it came to denial of that statement, he also
appeared uneasy and uncertain, and I find his denial in that regard to be unreliable. In addition,
Rodriguez’ statement about negotiations starting from zero is consistent with the information 25
Respondent provided its employees in writing wherein it stated that “[i]f a Union is voted in,
negotiations will not start at current wages and benefits…” and “each item is negotiated starting
with zero or the minimum allowed by law.” (GC Exh. 6.) Therefore, I find that Rodriguez told
Aguilar that if the Union came in, negotiations would start from zero to minimum.
30
8. Plant Manager Bradley Rurka’s mandatory meetings with employees on August 24, 2017,
where he solicited employee complaints and indicated that he would try to get
increased benefits for employees.
On August 24, 2017, just 2 days after Habermehl’s meetings with employees and the same 35
day that Aguilar was asked by his supervisor why he supported the Union, Plant Manager Rurka
held at least three mandatory meetings with the hourly employees where he read a prepared
statement titled “24-hour speech.”19 (Tr. 106‒107, GC Exh. 9.)20 Rurka does not speak Spanish,
so those speeches were interpreted by Rodolfo Rodriguez and Leah Cochran.21 (Tr. 104, 1071‒
1073.) Rurka testified that he read aloud the first two paragraphs of the statement, but since the 40
19 While Rurka testified that he held three meetings, Rodolfo Rodriguez testified that he recalled there
being four meetings. (Tr. 1235‒1240.)
20 The record does not reflect the reason Respondent’s speech or statement was entitled “24-hour
speech.”
21 Rodolfo Rodriguez testified that he translated the script from Rurka’s speech verbatim. (Tr. 1235‒
1240.)
JD–21–20
11
employees in attendance spoke Spanish, the complete statement was read in Spanish to the
employees.22 (Tr. 106‒107.) In the statement, Rurka informed the employees that the purpose of
the meeting was to “follow-up” on the meetings held earlier in the week with the employees. (Tr.
106, GC Exh. 9.) He also testified that the purpose of the statement was to explain the changes
that the Company was making.23 (Tr. 107.) Rurka stated that in the meetings held earlier in the 5
week, he heard employees’ comments that the Respondent “doesn’t feel like a family anymore.”
(GC Exh. 9, p. 4.) Rurka informed the employees that the “follow up meetings” were being held
because the employees “deserve to know that we do listen to you.” (GC Exh. 9, p.4.) Rurka told
them that the Company had heard their concerns and would respond to their “concerns” in a way
that would reinforce to employees that they were a “family.”24 (GC Exh. 9, p. 4.)10
Rurka, making note of the employees’ complaints that Respondent’s vacation and
attendance policies were unfair, announced that Respondent was “going to try something new”
and change the vacation and attendance policies. (GC Exh. 9, pp. 4‒5.) In regard to the attendance
policy, Rurka stated that “[m]any of you told us that you felt it was unfair that we had increased 15
the wait time for points falling off to 60 days” and “[a]s we told you earlier this week, we heard
you and we have already changed it back to 30 days.” (GC Exh. 9, p. 4.) In addition, Rurka stated
that “after listening to you, we are adding to the list [of excused absences] …court appearances,
any meetings or events related to immigration issues and we are expanding the list of medical
visits to include all medical visits, not just the preventive.” (GC Exh. 9, p. 4.) Rurka announced 20
that Respondent was also going to change the vacation policy to: (1) allow employees to use
vacation days in lieu of getting attendance points for an absence; (2) provide that if employees
miss the day before or after a holiday because of a documented injury or illness, they will still
receive holiday pay; and (3) allow employees to use vacation time in 4 hour increments instead of
full 8 hour increments. (GC Exh. 9, pp. 5 and 6.) 25
In that meeting, Rurka also announced changes to the lock out/tag out policy that
employees believed was unfair, by classifying violations where it was not entirely the employee’s
fault, as “minor violations.” (GC Exh. 9, p. 5.) In addition, he announced changes to the policy
pertaining to equipment and PPE by stating that the Company will purchase all of the PPE for the 30
employees, including boots and safety glasses. Those issues, as discussed above, were two issues
that had been raised by the maintenance employees as the reasons for considering the Union as
their collective-bargaining representative. (GC Exh. 4 and GC Exh. 9, p.5.)
Rurka also informed the employees that the items the Respondent was changing was “a 35
good step toward bringing out family back together.”25 (GC Exh. 9, p. 7.) After informing the
22 Leah Cochran’s recollection of Rurka’s meeting varied in respect to the fact that she recalled that
Rurka read the complete statement in English, and she then read the complete statement in Spanish. (Tr.
1071‒1073.)
23 Shannon Van Noy, who attended two of the three meetings held by Rurka, testified that the purpose
of the meetings was to let employees know about changes in policy made by the Respondent. (Tr. 800‒
801.)
24 Employee Jorge Torres testified that in that meeting, Rurka informed the employees that he was
going to listen to their complaints. (Tr. 1187‒1188, 1199.)
25 Maintenance employee Rodney Valenzuela testified that Rurka told the employees that it had come
to their attention that the employees did not like what was going on in the Company and they were going
JD–21–20
12
employees that their complaints would likely be remedied, Rurka asked them to keep
“communicating” with management about their concerns so that they could be addressed and, if
possible, remedied. In fact, Rurka told the employees that the Respondent could not fix the things
it did not know about, explaining that “[w]hile a couple of these issues have been raised before,
many of the things you listed had never been brought to our attention before.” (GC Exh. 9, p. 6.) 5
In order to do that, Rurka told the employees that Respondent was “bringing back the Suggestion
Box,” and he committed to the employees that every single comment in the suggestion box would
be considered and that management would report back to employees on what concerns could be
remedied and which ones could not. (GC Exh. 9, pp. 6‒7.)
10
9. The mandatory meetings held by Senior Vice President of Operations Larry Helfant on or
about August 29, 2017, where he solicited employee complaints and indicated
he would try to get an increase in benefits for employees.
The Respondent’s commitment to consider and remedy employee complaints and concerns 15
was further expressed to employees a few days later. On August 29, 2017, Helfant traveled from
the corporate headquarters to Holland to hold three mandatory meetings for the hourly employees
to get “general feedback” about “anything.” (Tr. 447, 1619, 1637.) His recall of what he said at
the meetings was limited. He testified, however, that he scheduled and held the meetings to
“listen,” and that the main two concerns the employees had were the vacation and attendance 20
policies. (Tr. 1620, 1637, 1639.) He also recalled that a main concern of the maintenance
employees was to have Respondent provide and pay for their work tools. (Tr. 1640‒1641.)
Several employees had better recollection of the meetings and what Helfant told them.
They confirmed that Helfant informed them that he was there to hear and try to address their 25
complaints, and that the two main issues for the employees were the vacation and attendance
policies. (Tr. 269, 1162, 1246.) Employee Apolonia Rios testified that Helfant told employees
that he was there to address the complaints of the workers because he “[heard] about the rumors”
that the employees “wanted more benefits,” and “he would address the complaints that the workers
had at the time.” (Tr. 396‒397.) Employee Ascension Rio also testified that Helfant said he was 30
aware of the problems at the plant and that he would like to “solve” the problems the employees
had. (Tr. 270.) Likewise, maintenance employee Rodney Valenzuela testified that Helfant
specifically asked the employees how Respondent could “help us out in maintenance…with
providing us with tools…,” he asked what the employees “find the Company [is] at fault for,” and
he inquired about the employees’ opinions concerning the Company’s policies. (Tr. 365‒367.)35
In addition, Respondent witness Abigail Forsten testified that Helfant asked employees for
input to improve things at the facility and he told them he was aware of employee complaints that
it was unfair to wait 3 months for attendance points to fall off. (Tr. 1173‒1174.) She also testified
that Helfant told employees that he would look into the issues presented and the changes the 40
employees requested during that meeting. (Tr. 1175‒1176.) In addition, Helfant told the
employees that he would look into what the Company could do better for newer employees going
forward. (Tr. 1173‒1176.) Respondent witness Jorge Torres, who testified that he did not recall
to make changes. (Tr. 360.) He also testified that Rurka told them he wanted the employees’ feedback to
“bring the family back together.” (Tr. 360.)
JD–21–20
13
Helfant ever coming to the Holland plant to talk to the employees before, stated that Helfant told
the employees that he was there to listen to their concerns, complaints, and problems and to “try
to help.” (Tr. 1190‒1191, 1202‒1203.)26
10. The Respondent increased benefits for Union Supporter and employee Apolonia Rios by 5
raising her wages and paying retroactive backpay on or about October 2, 2017.
Employee Apolonia Rios and her husband, Ascension Rios, where supporters of the Union
whose photographs were featured on the Union’s Facebook page. (GC Exh. 11.) In February
2017, Apolonia Rios held the position of “Lead” in the Browning Department. (GC Exh. 12.) She 10
held that position for approximately 10 years and she reported to Supervisor Jim Monroe. (Tr.
433‒435.)
On February 10, 2017, Van Noy, Supervisor Monroe, and the human resources staff
“addressed several performance issues with her” and she was started on a Performance 15
Improvement Plan (PIP) (Tr. 439, GC Exh. 16), where it was explained to her that for her to remain
as a Lead, she had to “improve her performance in all areas outlined.” (GC Exh. 12.) On March
7, 2017, months prior to the Union’s organizing campaign, Rios was informed that she had failed
to report an incident of physical contact between two employees, thereby putting the employee,
her coworkers, and the Company at risk. (GC Exh. 12.) In a Notice of Demotion issued by Van 20
Noy and Monroe on March 7, 2017, Rios was informed that she was being demoted for
performance issues after she was unsuccessful in complying with her performance improvement
plan. (Tr. 400‒404, GC Exh. 12.) Van Noy, who was personally involved in Rios’ demotion,
testified that the Respondent was unhappy with her performance and her demotion was well
thought out and not issued lightly. (Tr. 696‒697, 702‒703.) Rios was removed from her position 25
as Lead and was moved to a “general labor position.” Pursuant to that demotion, Rios had her pay
reduced from $16.45 to $14.15 per hour. (GC Exhs. 12, 16‒18.) Rios testified that when she was
issued her demotion, she informed management that she believed it was unjust and she demanded
an investigation, and she made a handwritten notation to that effect on the bottom of her Notice of
Demotion. (GC Exh.12.) She testified, however, that she was unsure if any investigation was ever 30
done, and the record does not reflect any investigation of her claims prior to the Union’s organizing
campaign. (Tr. 470‒472, 693‒695.)
Immediately after Helfant’s meeting where he told employees that he was there to listen to
their complaints and attempt to remedy them, Apolonia Rios approached him and through an 35
employee who could translate, Rios told Helfant that she had been demoted in March 2017 and
that her pay was decreased by approximately $3 an hour. She stated that she did not feel her
demotion was “just” and that it had a negative impact on her. (Tr. 401, 1647.) Helfant told her
that he would look into it for her and talk to the manager and human resources. (Tr. 401‒401,
447‒448, 1648‒1649.)40
Following Rio’s conversation, Helfant instructed the human resources department to
reconsider Rios’ demotion and investigate her complaint. (Tr. 1627‒1628.) Van Noy testified
26 Human resources employee Rodolfo Rodriguez recalled that Helfant said he was there to listen to
any questions or concerns mentioned in the meeting that Respondent did not want to “compromise” or
“create any issues…while employees are talking about the Union.” (Tr. 1304‒1305.)
JD–21–20
14
that after holding his meeting with the employees, Helfant told her that Rios was upset with her
demotion and reduction in pay, and he asked her if she could do anything about it. (Tr. 699, 724‒
725.) According to Van Noy, Helfant informed her that he was “concerned about the fairness of
the long-term employee’s treatment” and that he “want[ed] us to take that into consideration and
he asked me to look into it.” (Tr. 702.) Shortly after Helfant’s request, Rios was summoned to 5
the human resources office where Cochran informed her that Helfant had directed her to
reinvestigate the circumstances of her demotion. (Tr. 402‒404.) It is undisputed that
approximately 2 weeks after that, (on or about September 11) she was called to human resources
where Rurka, Van Noy, and Cochran informed her that she had been given a new position and
wage rate. (Tr. 448.) However, there was no change in Rios’ job duties and she performed the 10
same work that she was performing as a general laborer. (Tr. 430, 701, 860.) The Respondent
also increased Rios’ wages from $14.15 to $15.90 per hour, and issued her a lump sum payment
for the difference between the wage rate she had prior to her demotion in March and the increased
rate she just received in September. (Tr. 404‒405, 429‒432, 449‒450.) Rios estimated that the
lump sum payment was around $1,600 to $2,000. (Tr. 430, 449‒450, 701.)2715
11. The Respondent increased benefits for Union supporter and employee Nelson Langarita by
providing him a different position and raising his wages on or about August 28, 2017.
During this time, employee Nelson Langarita, who was also a known union supporter, was 20
similarly granted a pay increase.28 (Tr. 706‒707.) It is undisputed that Respondent had knowledge
of Largarita’s support for the Union.29 (Tr. 708‒709.) Shortly after Habermehl’s meeting where
Langarita asked about Union benefits at Respondent’s unionized Virginia plant, Langarita told
Human Resources representative Yaritza Berrios that he believed he deserved more pay for his
job. (Tr. 1015.) Van Noy testified that when she returned from leave on or about August 21, 2017, 25
Berrios brought to her attention that Langarita told her that he was not being compensated for
additional duties that he was performing. (Tr. 706‒707.) Specifically, Langarita brought to the
attention of human resources that he was performing data entry work instead of just being a
machine operator or packer. (Tr. 706‒707.) Berrios testified that she found out that, as he alleged,
he was performing the duties of a packaging specialist where he was entering information in the 30
computer and printing labels in order to keep the flow of the trays of meat going into the production
area. (Tr. 1014.) Upon looking into Langarita’s claims, Van Noy checked with RTE Department
Manager Urasinski who confirmed that Langarita was in fact given extra work responsibilities
beyond his job classification. (Tr. 708.) Thus, Van Noy likewise testified that it came to her
attention that Langarita was responsible for keeping logs and entering batch numbers in the 35
computer. (Tr. 707.)
Based on her investigation, on or about August 28, 2017, Van Noy changed Langarita’s
job classification from “general Employee” to “packing specialist,” and adjusted his pay to that of
a packing specialist, which increased from $14.15 to $15.40 per hour. (Tr. 708‒709, 1012‒1015, 40
27 The record reveals that Apolonia Rios subsequently had her employment with Respondent end after
she accumulated too many attendance points. (Tr. 450‒451.)
28 Langarita was subpoenaed to appear and testify at both sessions of hearing in this matter. However,
he failed to respond or comply with the subpoena and appear as directed. (Tr. 763, GC Exh. 20.)
29 Van Noy testified that the Respondent was aware of Langarita’s Union support. In particular, she
saw Langarita speaking out in favor of the Union at Habermehl’s meeting in August, and she saw him
handing out Union flyers in the Company parking lot in October. (Tr. 708‒709, 773.)
JD–21–20
15
GC Exh. 21.) Respondent’s records reflect that his job title and new pay rate were effective on or
about September 26, 2017. (GC Exh. 21.) According to Van Noy, that adjustment was not
unusual, and in fact, there were already two packaging specialists, with Langarita becoming the
third such specialist. (Tr. 709.) Berrios testified that even though that position did not exist in
Langarita’s department, it was a position that existed in other departments at the Holland facility. 5
(Tr. 1014.)
12. The Respondent’s suspension and discipline issued to Union supporter and employee Walter
Aguilar on August 25 and 31, 2017, respectively.
10
On or about August 25, 2017, Aguilar, a known union supporter with no history of
discipline, was alleged to have been telling employees to take it easy or slow down. (Tr. 124, 156,
675.) He worked on the on the “boxing line” where cooked and packaged meat was placed in
boxes for shipment. (Tr. 910.)
15
Aguilar’s comments were reported by an employee to Supervisor Leticia Estrada, who
reported it to RTE Manager Judy Urasanski, who then reported it to Leah Cochran. (Tr. 1044.)
Cochran then reported the statement to Van Noy, who determined it was a serious situation, and
contacted Habermehl to inform him about the reports that Aguilar was restricting his own
production or interfering with the production of others. (Tr. 670‒671, 669, 1044‒1045, R. Exh. 20
5.) Van Noy testified that she knew that Aguilar was a Union supporter, and she told Habermehl
about his union support because she was concerned about discipling a Union supporter.30 (Tr. 672‒
673, 816.) Habermehl told her to treat the situation as she would any other (Tr. 673, 814), and at
that time, they decided to conduct an investigation. (Tr. 670‒674, 1047, 1102‒1103.)
25
In Respondent’s investigation Van Noy and Cochran initially spoke with Aguilar, with
Cochran translating. (Tr. 1046‒1047.) Aguilar denied telling employees to slow down in their
work, but he subsequently admitted saying that he did not feel that he should have to do the work
of two people. (Tr. 810‒811, 1052, R. Exh. 5.) Based on that meeting, Van Noy and Cochran
decided to suspend Aguilar pending an investigation. (Tr. 674, 1054.) The reason management 30
decided to suspend Aguilar pending investigation was because they believed they could have a
“clean investigation” without any worry of having Aguilar on site possibly trying to talk to the
witnesses about it and without worry of him influencing what the witnesses had to say about the
situation. (Tr. 864.)
35
Aguilar testified that he told employees to “work easy,” because there was a lot of
“pressure” and there were a lot of employees being injured. (Tr. 124, 134.) He acknowledged,
however, that the line on which he worked was fully staffed (Tr. 135). On cross-examination
Aguilar admitted that he told employees to “take it easy” (Tr. 157‒159), and he acknowledged that
even though he thought there were not enough employees working on the production line, he never 40
complained to management about it and he never filed any safety concerns. (Tr. 909, 1222‒1223.)
30 Cochran likewise testified that she and Van Noy consulted with corporate human resources because
they knew Aguilar was a Union supporter and knew that disciplining him would be under some scrutiny,
and they wanted to make sure the investigation was clean and fair. (Tr. 1105.) Cochran also testified that
she had consulted with Habermehl on other instances of employee discipline when they involved “sensitive
situations,” such as lock out/tag out violations. (Tr. 1107‒1108.)
JD–21–20
16
According to Aguilar, the purpose in making his statements was “that they not work as fast in
order for them not to injure themselves.” (Tr. 249, 816.) There is no evidence that any employee
stopped working or that production was affected by Aguilar’s statement. There is also no evidence
that any employees were injured due to pace or speed off the boxing production line where Aguilar
worked, or that the pace of the work in the Boxing area was so fast that employees were routinely 5
injured. (Tr. 817, 909, 1218‒1219, 1222‒1223.)
In interviews conducted by Cochran and as noted in reports taken from those interviews,
employees reported that Aguilar asked them why they were hurrying, he was mocking another
employee and telling him not to work so hard and that he should relax, and that he was always 10
telling employees not to work so hard. (Tr. 1055‒1057.)31 Another employee reported that Aguilar
told one employee to hurry up and then said that the harder she worked, Respondent would only
pressure her to work harder. (R. Exh. 5.) One employee reported to management that Aguilar had
told him not to work so hard. (Tr. 681‒682.)
15
The Respondent’s investigation was completed in 1 day. Cochran testified that
management’s understanding from the employees interviewed was that on many occasions,
Aguilar told people to slow down their work. (Tr. 1058‒1059.) After Aguilar served his 3-day
suspension, upon his return to work on August 31, he was informed that his suspension was
rescinded, but that he was still going to receive a written warning for attempting to cause a work 20
slowdown. (GC Exh. 10.) Cochran testified that Aguilar was disciplined because he had
encouraged employees to slow down in the past as well as what was reported at that time, and that
they needed to follow progressive discipline. (Tr. 1062.)
Aguilar’s written warning states that “[d]uring the investigation it was reported that you25
made statements to multiple individuals encouraging them to not work so fast or too hard.” (Exh.
10.) The written warning stated that Aguilar was in violation of Company Work Rule 2.23—
“Restricting own production or interfering with production of other employees.” (GC Exh. 10.)
Van Noy testified that she and Rurka recommended that Aguilar be issued a written warning and
Habermehl agreed. (Tr. 685‒686.) There is no evidence that any employees had previously been 30
disciplined for the same offense. (Tr. 863.) Van Noy testified that even though the investigation
was completed in 1 day, Aguilar remained on administrative suspension for the following 2 days
because she needed to speak with the supervisor and plant manager as a team. (Tr. 866‒868.)32
The Respondent never issued Aguilar an official suspension since his suspension was an
administrative suspension pending investigation, and it subsequently paid him for the days he was 35
off work pending the investigation. (Tr. 1079.)
31 Van Noy testified that the investigation revealed there were other employees who were laughing and
mocking others about working so hard, but that joking is not a violation of the rules. (Tr. 814.) Cochran
also stated that Aguilar was accused of telling employees to slow down their work, which was different that
not wanting to work and mocking people who do. (Tr. 1094.)
32 Cochran testified that suspensions pending investigation of 3-days duration were not uncommon for
the Respondent’s operation. (Tr. 1081.)
JD–21–20
17
13. In late September 2017, Larry Helfant held a second meeting for employees and
indicated that Respondent would change its vacation and attendance policies
to benefit the employees.
Two weeks after Helfant conducted meetings with employees where he solicited their 5
complaints and informed them that he would do what he could do to remedy them, he traveled to
the Holland facility again for the sole purpose of informing the employees that the vacation and
attendance policies were being updated and improved. (Tr. 709‒710, 1163‒1164, 1177, 1305,
1397, 1404.) Van Noy testified that Helfant did not normally come to the Holland facility to
announce changes in policy like the instant changes. (Tr. 710.)10
Respondent witness Abigail Forsten testified that in Helfant’s September meeting with
employees in the facility cafeteria, he told employees that the Company was making changes to
policies, such as the vacation and attendance policies, and that those changes were improvements
over what the existing policies. (Tr. 1176‒1177.) In these meetings, which included maintenance 15
employees, Helfant also announced that the Company was changing its policy to purchase tools,
at no cost to employees, for all maintenance department employees.33 (Tr. 366.)
About a week after Helfant’s September meetings, the employees received a handout with
their paychecks explaining the changes in more detail. (Tr. 665, 1177.) The changes announced 20
by Helfant were summarized in that one-page handout titled “Explanation of Changes to Policies.”
(GC Exh. 7.) That document explained the specific changes to employee working conditions, such
as: (1) allowing attendance points to drop off after 30 days instead of the current 60 days
timeframe;34 (2) allowing employees to take pre-scheduled vacation time for medical
appointments; (3) allowing absences to be taken for additional life events to be excused without 25
the accrual of an attendance point; (4) allowing employees the right to use vacation time for a call
off, up to five times a year; (5) using vacation time in 4 hour increments (where previously it had
to be used in “full day increments”) (Tr. 720‒721); and (6) other changes to the wellness program,
holiday pay, the lock out/tag out procedure, and personal protective equipment for the employees.
(GC Exh. 7, Tr. 1177.) That document also announced the creation of another suggestion box for 30
employees, and it encouraged them to use it. (GC Exh. 7.)35
33 Respondent witness Jorge Torres also testified that in Helfant’s second meeting, which was about 2
weeks from his first meeting, he announced changes to the Attendance and Vacation policies, and some of
the working conditions that were changed were things employees had complained about previously. (Tr.
1204.) Respondent witness Gabriela Esquidel also testified that Helfant talked about changes to the
vacation and attendance policies. (Tr. 1397.)
34 The Respondent reverted back to its old policy that existed 3 years prior, when it had a 30 day drop
off. (Tr. 666.)
35 That document stated in its entirely as follows:
Attendance Policy
- 1 attendance point falls off after 30 days of perfect attendance.
- Employees working overtime may, with advance notice, leave early for a pre-scheduled
medical visit without receiving points.
- With supporting documentation, the following events are excused absences:
Funeral leave & Jury duty
School conferences for child
JD–21–20
18
The vacation policy, which had been one of the major sources of employees’ complaints
for several years as reflected in the Respondent’s mandatory meetings for employees in August
and September of 2017, was changed and expanded to benefit the employees. Newer employees
were given 5 days of vacation and senior employees received 2 more days of leave, and under 5
some circumstances, leave was allowed without prior approval. (Tr. 400, 710, 720.) The policy
for PPE for maintenance employees was also changed, and as a follow up to that change,
Maintenance Manager Guy Yondo took orders from the maintenance employees with regard to
their choice of tool brands. (Tr. 370.)
10
The Respondent’s changes in policy and working conditions for employees discussed
above and which were listed on the “Explanation of Changes to Policy” handout to employees,
plus several more changes, were approved by the Respondent in the first week of September and
they were implemented on October 1, 2017. (Tr. 1578, 1580, GC Exh. 7, GC Exh. 22.)
15
Court appearances (civil or immigration)
Vacation days
Any medical visit for your own treatment
Personal leave, Military leave, and Family & Medical Leave (FMLA)
- At the time of call in, an employee may notify the company they are not coming in that day
and want to use a vacation day. They will not be assessed any points. This cannot be done
on the day before or after a holiday.
Holiday Pay
- Employees absent on the day before or after a holiday who provide documentation of their
own injury or illness on that day, will still receive holiday pay.
Wellness Program
- The company wants employees to get the discount. Employees should visit HR for help
completing the health assessment. It will save you money.
Lock Out/Tag Out (LOTO)
- The company has two levels of LOTO violations. A Major violation occurs when an
employee just received training on LOTO and fails to follow it or intentionally violates
LOTO. A Major violation is automatic termination. A Minor violation occurs when there
is some evidence that it was not entirely the employee’s fault. A Minor violation is judged
on a case-by-case basis.
Personal Protective Equipment (PPE)
- The company is in the process of determining whether other plants provide more PPE to
their employees at no cost. If true, changes will be made so Holland employees are treated
the same.
Vacation Policy
- Employees may now use Vacation in 4 hour increments.
Suggestion Box
- The box in the hall by Accounts Payable is now a Suggestion Box. Use it. (GC Exh. 7.)
JD–21–20
19
14. In or about October 2017, Supervisor Maria Mendoza’s interrogation and statements to
employees regarding the loss of benefits if they selected the Union, and that if they were
terminated, the Union would not be able to get them reinstated.
While the Respondent’s employees were receiving unexpected benefits, the record reflects 5
that some of Respondent’s management officials were confronting and questioning individual
Union supporters regarding their support for the Union.
Elba Rivas, an employee in the Beef Trim Department, was supervised by Maria
Mendoza.36 (Tr. 86‒87.) Rivas testified that around the time that she saw employees handbilling 10
out in the Company parking lot in October 2017, Mendoza approached her on the line around the
middle of her shift and when everyone was on the line working and asked her and other nearby
employees on the line if they “would like to have the Union,” and in general she asked “are you
agreeing with the Union?” (Tr. 87‒88, 92.) Rivas recalled that some employees responded, such
as Martina Ramirez, who said she was not supporting the Union, and Jose Villalobos, who told 15
Ramirez something to the effect that “Okay, you are one of mine.” (Tr. 88‒89.) According to
Rivas, Mendoza said that if the Union came in the Company will take away the 7 minutes they had
to go up to and down from the cafeteria. (Tr. 89.) The time allowed for employees to put on and
take off their work clothes is referred to as “donning and doffing” time. (Tr. 973‒974.) Such time
allows employees 7 minutes to go from their work area to the cafeteria and then back to their work 20
areas and put on protective gear and start work. (Tr. 973‒974.) In addition, Rivas testified that
Mendoza said the Company will take away their bonuses.37
Mendoza denied, through leading questions from Respondent’s counsel, all the questions
and statements attributed to her by Rivas. (Tr. 964‒967, 970‒976.) She also denied having any 25
conversations with or making any statements on the line to Ramirez or Villalobos. (Tr. 967, 973.)
According to Mendoza, there are two lines in the beef trim area of the plant where she is a
supervisor. (Tr. 958‒959.) On each line, there are seven employees on each side of a belt that is
approximately 7 feet in width and on which the product travels. (Tr. 959‒961.) The employees
on those lines stand side-by-side, just 2 feet apart. Besides denying interrogating or making 30
statements to employees concerning the Union, Mendoza testified that she generally did not hold
meetings with employees on the lines when they were running because it is noisy and they have to
concentrate on cutting the meat and it would be dangerous to distract them. (Tr. 966.) However,
she did acknowledge that she spends approximately 2 hours a day in the beef trim area, and as part
of her duties, she checks on the Beef Trim line employees two times a day for approximately 10 35
minutes each to personally observe how they are doing. (Tr. 999‒1000.) She also acknowledged
that even when the line is running, she is able to briefly speak with employees. (Tr. 999‒1000.)
With regard to Rivas’ assertion that Ramirez and Villalobos were on the line when
Mendoza interrogated them and made statements about the Union, and that they both responded40
to Mendoza, Ramirez did not testify to deny that she was present or that she responded to
Mendoza’s questions. However, Villalobos, who worked on the same line and shift as Rivas and
36 The record reflects that Maria Mendoza’s name was previously Maria De Leon. (Tr. 271.)
37 The record reflects that the Respondent paid hourly employees bonuses on occasion, such as in
March, when employees receive the same amounts, and at the end of the year, when employees receive
bonuses that are calculated on how long the employee worked for the Respondent. (Tr. 711.)
JD–21–20
20
Ramirez, was called by the Respondent to testify and he denied ever seeing or speaking to
Mendoza on the beef trim line. (Tr. 928‒931.) While he testified that Mendoza did not usually
hold meetings with employees on the line when it was running because it was noisy and they had
to concentrate on their work, he did acknowledge that it was possible to communicate with others
on the line when it was running. (Tr. 932‒939.) He likewise acknowledged that Rivas worked 5
directly next to him every day on the line. (Tr. 943.)
With regard to Mendoza’s statements to employees concerning the Union, Ascension Rios
also testified that several weeks after the meeting held by Helfant, when he was in his work area
in the Beef Trim Department filling out paperwork, Mendoza approached him and asked him if he 10
supported the Union, and that if he did, he would be noticed by the Company and that he could
“end up in court.” (Tr. 271‒274.) With regard to her comment that he was going to end up in
court, he explained that Mendoza said that if the Union came in and the employees were at fault
for something, the Company could fire them and they “could be taken to court” by the Company.38
(Tr. 285‒286.) Rios told her that he supported the Union even with such risks, by stating that he 15
was “asking to get the Union.” (Tr. 272.) Mendoza told him that the situation in New York with
the Union was “not good.” (Tr. 272.) Mendoza denied telling any employees that if the Union
came it, it would be futile or that the Union would not be able to get them reinstated if they were
discharged (Tr. 975).
20
Since the testimonies of Elba Rivas and Ascension Rio differ from that of Mendoza and
Villalobos, credibility determinations are required. I find that Rivas and Ascension Rios were
truthful in their testimony and honest in their demeanor. They were convincing regarding their
conversations with Mendoza and showed good recall concerning what she said in those
conversations. In addition, Rios and Rivas were current employees at the time of their testimonies, 25
which tends to be particularly reliable because it goes against their pecuniary interests. Gold
Standard Enterprises, supra; Shop Rite Supermarket, supra.
Mendoza’s testimony and her denials, on the other hand, were simply not credible or
believable. I found her to be an unreliable witness, as her testimony at times was inconsistent3930
and her recollection lacking.40 Much of Mendoza’s testimony was also elicited with leading
questions during direct examination. Such testimony is entitled to, and should be afforded, less
weight that the testimony of the General Counsel’s witnesses and discredited where appropriate.
T.M.I., 306 NLRB 499 (1992); see also H.C. Thomson, 230 NLRB 808 (1977). Villalobos’
demeanor and testimony also lacked credibility. He was inconsistent in his testimony,41 at times 35
38 Mendoza’s statement about “end[ing] up in court” or “be[ing] taken to court” appear to be some
kind of reference to the NLRB charges, but it was not explicit in the record.
39 Mendoza testified that the Union campaign was a “big deal,” and she spoke to employee Raul
Morales about the Union when they were near the Beef Trim line when it was running (Tr. 994‒996), but
she also stated in her sworn affidavit to the government during the investigation of the instant case, that she
never spoke to any employees about the Union. (Tr. 997.)
40 Mendoza acknowledged that her recollection was suspect, stating that she was “not good at
remembering.” (Tr. 1005.)
41 In this connection, Villalobos denied that anyone ever spoke to him about the Union, explicitly
stating “Never, never” in response to that question. (Tr. 943‒947.) However, he then admitted that
employees were in fact talking about the Union, specifically asking if the employees wanted the Union, as
JD–21–20
21
was evasive,42 and he provided overly certain and conclusory testimony that made his testimony
seem insincere and not believable. On that basis, I discredit the testimony of Mendoza and
Villalobos where it conflicts with that of Rivas and Ascension Rios. In addition, I find that even
though some Respondent witnesses testified that they believed it was not possible to conduct
meetings while the production line was operating due to the fact that noise was made by horns and 5
the overhead unit, I provide those assertions little, if any, weight due to the fact that those witnesses
acknowledged that it was nevertheless possible to have conversations with employees on the
production line when it was running.43
Thus, I find that in October 2017, Mendoza approached employees working on the line and 10
asked if they “would like to have the Union,” and whether they were “agreeing with the Union?”
Mendoza also said that if the Union came in the Company will take away the 7 minutes for donning
and doffing their safety and PPE gear going to and coming back from work breaks that the
Company provided employees,44 and that the Company will take away the employees’ bonuses if
the Union came in. In addition, on or about December 6, 2017, Mendoza asked Ascension Rios if 15
he supported the Union, and she stated that, if he did, he would be noticed by the Company. She
also told Rios that if the Union came in and the employees were at fault for something, the
Company could fire them and they “could be taken to court” by the Company.
15. On or about October 11, 18, 25, and November 16, 2017, Respondent’s security guards 20
allegedly engaged in surveillance and/or created the impression of surveillance of
employees’ union activities.
On four dates, October 11, 18, 25, and November 16, 2017, the Union organizers
distributed Union literature in the form of handbills or flyers in the street adjacent to the Holland 25
facility. Several of Respondent’s employees were provided the flyers and they distributed them in
the parking lot to other employees. The Respondent’s employee parking lot is next to the facility
and it has two entrances and one exit, which are all one-way. (GC Exh. 13.) Adjacent to the
parking lot is Respondent’s security gate house or “guard shack” that serves as the main entrance
to the facility and which is normally manned by two security officers who routinely monitor the 30
lot by closed circuit television (CCTV) and by patrol on foot. (Tr. 250, 1353.) Normally, with
regard to periodic patrols, one guard stays in the guard shack and the other patrols the parking lot
some answering that they did want it, and some stating that they did not want the Union. (Tr. 944‒945.)
He also admitted that he actually participated in a conversation about the Union by stating that he had been
with the Company for 17 years and he “was fine” and didn’t need anything.” (Tr. 944‒945.)
42 I found his testimony was evasive when being questioned about whether he ever attended any
meetings held by the Company where they discussed the Union (Tr. 947‒949.)
43 Mendoza admitted that she was able to briefly speak to employees working on the line and when the
line was running. (Tr. 999‒1000.) Villalobos also acknowledged that it was possible to communicate with
other employees on the line when it was running. (Tr. 932‒939.) While Respondent witness Mark Emmons
testified that he did not believe it was possible to conduct a meeting while the production line was running
due to the noise, he did acknowledge that it was possible for Mendoza to speak to employees when they
were on a break on the line. (Tr. 888‒890, 896.)
44 The record reflects that employees were allowed 20-minute breaks and a total of 14 minutes for
donning and doffing. (Tr. 1221‒1222.)
JD–21–20
22
and the rest of the property.45 (Tr. 1353.) The guards are supervised by Ronald Ortega, whose
workstation is located in an office inside the facility and he does not normally perform day-to-day
security patrols or CCTV monitoring. (Tr. 1467‒1468.)
On October 11, Union Organizer Francisco Castillo and two other organizers stationed 5
themselves around 1:00 p.m. on the street adjacent to the parking lot, which was a public right of
way. Respondent Security Officer Gerald Cox saw the organizers and immediately notified
Ortega, who came to the guard shack.46 Cox and Security Officer Doll approached the Union
organizers on the street and informed them that they could not be on the Respondent’s property.
(Tr. 488, 1424, 1346.) Organizer Castillo told the security officers that he knew he was not allowed 10
on the property and he had no intention of entering the parking lot. (Tr. 488.) There were only a
few employees coming and going from the lot at that time, and while some of the guards returned
to the shack, others remained in the lot and encouraged the employees in their cars to keep moving
past the Union organizers. (Tr. 488.)
15
At the time of the shift change, between 2:30 and 4:00 p.m., several employees, including
Walter Aguilar, Apolonia Rios, Tomasa Garcia, Norma Chacon, Olivia Trejo, Sanjuana Garza,
and Nelson Langarita went as a group and got Union flyers from one of the Union organizers, and
they handed them out to employees in the Company parking lot. (Tr. 126‒128, 179‒180.) Some
vehicles stopped to take the literature as them were coming or leaving from work, and other 20
employees continued to drive by without stopping to take a flyer. (Tr. 492, 1350.) During the
shift change, traffic was backing up and the guards who were in the lot told the cars to keep moving.
(Tr. 1350‒1352.) At that time, at least two, and at one time four security guards were in the parking
lot near the employees who were handing out Union literature. (Tr. 303, 422, 489, 1352.) The
employees who testified all indicated that the security guards followed them while they were 25
handing out the Union flyers.47
The human resources department was notified by security and told about the presence of
the Union organizers. Van Noy came to the parking lot with Assistant Plant Manager Mark
Emmons and HR Specialist Rodolfo Rodriguez to join the security personnel. That group of 30
employees approached the Union organizers and employees who were by the exit of the parking
45 Human resources employee Rodolfo Rodriguez testified that normally one guard is stationed in the
guard shack where he or she watches the CCTV monitor that has a view of the parking lot and its entrance
and exit. (Tr. 1271.)
46 Respondent’s internal email shows that Ortega was informed by Habermehl to expect Union
organizing activities on that date. In that email, Habermehl stated that Respondent should “keep the union
organizers off or our property and call the police if they block traffic or disrupt the flow of employees,
vendors, [or] inbound/outbound trucks.” (GC Exh. 29.)
47 Aguilar testified that the security guards followed them around the parking lot while they were
passing out the flyers. (Tr. 198.) According to Apolonia Rios, when she and other employees were passing
out flyers for the Union to employees in the parking lot on October 11, security guards were out in the lot
and they were watching her and the others handing out flyers. (Tr. 456‒459.) In addition, Union Organizer
Francisco Castillo testified that he saw the security guards watching the employees handbilling, and at one
point he saw two guards walking behind and following the handbillers.47 (Tr. 510‒512, 631.) Norma
Chacon testified that when she was handing out Union flyers in the parking lot, the security guards were
walking toward her and watching her. (Tr. 303, 321.)
JD–21–20
23
lot. (Tr. 772.) Van Noy and the security personnel spoke briefly to Castillo in English, telling him
that he was not allowed on the property, and Castillo indicated that he understood and that the
employees had the right to handbill in the parking lot, pointing to the solicitation policy posted by
Respondent outside the parking lot by the exit to the street. (Tr. 496‒497, 1348.) Van Noy
acknowledged that when the handbilling was taking place in the parking lot, she and other human 5
resources personnel and the security guards went outside, where she saw employees with handbills
organizing. (Tr. 770‒772.)48
Security Officer Gerald Cox testified that during the handbilling that occurred on October
11, he went out to the parking lot because cars were slowing down or stopping to receive Union 10
flyers that were being handed out. It is undisputed that during the time of the shift change, traffic
in the parking lot was backed up. Cox and the other security officers and security supervisor went
out to maintain a safe environment and to keep traffic moving during the shift change that started
at 2:30 p.m. (Tr. 1346‒1352.) The guards told the cars to keep moving, using hand motions meant
to keep the traffic flowing. (Tr. 1472‒1473.) While out in the parking lot tending to the traffic 15
backup, they observed employees handing out Union flyers. (Tr. 1369.) It is undisputed that
Ortega and the security detail remained in the parking lot the entire time that the employees were
attempting to distribute their Union literature, and they were watching employees engaged in that
activity and they were encouraging other employees in their vehicles to keep moving. (Tr. 128,
459, 488‒490, 1350, 1377, 1439, 1445.) While Van Noy, Rodriguez, and Emmons returned to the 20
facility, Ortega remained in the parking lot for two and a half hours that day observing the
employees handbilling and the Union organizers. (Tr. 1428.) Ortega testified that on October 11,
even after the traffic stopped being backed up, he still stood in the parking lot “observing,” and he
noticed when employees took flyers and when they did not. (Tr. 1475‒1477, 1480, GC Exh. 14,
p. 3.) 25
When the Union organizers returned to the facility on October 18, 25, and November 16,
2017, to distribute flyers at the same location on the street, employees handing out flyers in the
Company parking lot were again joined by various security guards and personnel who continued
to patrol the lot, observe the employees, and direct vehicles to keep moving past the organizers. 30
(Tr. 510‒514.) One significant difference from the October 11 handbilling, however, was that
during the employee handbilling that occurred on October 18, 25, and November 16, there were
no significant traffic backups that prevented cars from safely exiting the lot. (Tr. 1445‒1446.) In
that connection, when Ortega was asked at trial if there was any backup of cars on October 18, 25,
and November 16, in terms of them being unable to get out of the parking lot, he testified that “it 35
wasn’t bad.” (Tr. 1445.) Despite the lack of significant traffic backups or problems on October
18, 25, and November 16, Cox and the other security personnel nevertheless went out to the
parking lot on those days to “observe what was going on” and at times they were in close proximity
to the employees handbilling.49 (Tr. 1359‒1360, 1362‒1366, 1381‒1384, 1445‒1446.) In
particular, Cox testified that during the employee handbilling that occurred on October 25 and 40
November 16, he went out to the parking lot to observe the employees handing out Union flyers,
48 Rodolfo Rodriguez testified that on October 11, he saw employees in the parking lot handbilling and
he went back to the guard shack and watch the activities in the parking lot on the monitor. (Tr. 1271.)
49 Ortega testified that on all the days that he was out in the parking lot, he noticed that there were
employees handing out Union flyers. (Tr. 1480, 1486.) In addition, Apolonia Rios testified that when she
and other employees were passing out flyers in the parking lot on October 18, the security guards were out
in the lot and they were watching her and the others handing out flyers. (Tr. 456‒459.)
JD–21–20
24
even though there was no blocking of the cars like that which occurred on October 11. (Tr. 1362‒
1366.) Cox also admitted that on October 25 he went out to the parking lot and stood there
watching the union organizing. (Tr. 1381‒1382.) He also acknowledged that on that day, the
Security Officers walked through the parking lot while the employees were handbilling, and the
Security personnel came in early that day and stayed late to observe the employees handing out 5
flyers, when they had never before come in early and stayed late for any employee activities in the
parking lot. (Tr. 1381‒1384.)
The record also reflects that employees sell food out of their vehicles in the Company
parking lot, such as vegetables, tacos, and watermelons. (Tr. 230, 1445‒1447.) On such occasions, 10
the security officers did not go out into the lot to watch the employees selling food and when such
employee solicitation was occurring, the Security Officers did not monitor that activity in any way.
(Tr. 248, 1318, 1367, 1447.) Thus, the employees have traditionally engaged in such activity
without any security presence or interference.
15
16. In or about October 2017, in the employee parking lot, Supervisor Carlos Giron allegedly
created the impression of surveillance of employees’ union activities by telling an
employee that he saw his picture on the Union’s Facebook page.
As part of the Union’s organizing drive, Organizer Castillo took photographs of some of 20
the employees who supported the Union and posted them on the Union Facebook page, which was
public. (Tr. 573.) Ascension Rios testified that at a time when employees were passing out Union
flyers in the Company parking lot, Supervisor Carlos Giron approached him and said that he saw
a photograph of him on the Union’s Facebook page, and he mentioned that Rios was “with the
Union.” (Tr. 278‒280.) According to Rios, Giron then showed him the Union Facebook page and 25
picture that he had on his cell phone. (Tr. 278‒280.) Rios acknowledged to Giron that it was him
in the picture when he was at a Union meeting. (Tr. 279‒280, GC Exh. 11.)50
Giron did not deny approaching and confronting Rios about his picture on the Union
Facebook page. He testified that he saw the Facebook page that office employee Elena Martinez 30
showed him when he was in the office. (Tr. 1331‒1332, 1335‒1337.) He admitted that on a day
when employees were handing out Union flyers in the Company parking lot, he saw Rios in the
lot talking to two other employees, and he told Rios that he was surprised because an employee
had shown him a Facebook page and he was on it. He also told Rios that he was “surprised that
he had some kind of complaints since [Giron] was trying to help him.”51 (Tr. 1332‒1333.) Giron 35
testified that Rios said he had been there for 17 years and it had not been easy. When Giron asked
“how is that, if I’ve been helping [you].” (Tr. 1339.) According to Giron, Rios simply responded
that “it has not been easy.” (Tr. 1339.)
50 The Facebook page was apparently for “Boar’s Head Workers United.” (Tr. 282.) Rios testified
that when Giron confronted him about his presence on the Union’s Facebook page, he was “mocking…it.”
(Tr. 279.)
51 Giron denied that he showed Rios the Facebook page on his cell phone. (Tr. 1333.) Where Giron’s
testimony differed from that of Ascension Rios, I find that Rios was a credible and believable witness, and
I credit his testimony over that of Giron, who I found to be less credible in his denial about showing Rios
the picture on is cell phone.
JD–21–20
25
B. Analysis
1. The alleged violations of Section 8(a)(1) of the Act.
a. The law5
Section 7, the cornerstone of the Act, provides that “[e]mployees shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection” Section 8(a)(1) of the Act makes it an 10
unfair labor practice for an employer “to interfere with, restrain, or coerce employees” in the
exercise of their rights guaranteed in Section 7 of the Act. It is well established that the test for
interference, restraint, and coercion does not turn on the employer’s motive or on whether the
coercion succeeded or failed. Onsite News, 359 NLRB 797 (2013). Instead, the test is whether
the employer engaged in conduct which tends to interfere with the free exercise of employee rights 15
under the Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); American Tissue Corp., 336
NLRB 435, 441–442 (2001) (citing NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir.
1946). In making its determination, the Board considers the total context in which the challenged
conduct occurs and is justified in viewing the issue from the standpoint of its impact on the
employees. American Tissue Corp., supra at 442 (citing NLRB v. E. I. du Pont & Co., 750 F.2d 20
524, 528 (6th Cir. 1984)).
The Board has held that threatening employees with reprisals for engaging in union or other
protected concerted activities is coercive to the exercise of their Section 7 rights under the Act.
Metro One Loss Prevention Services Group, 356 NLRB 89, 89 (2010) (employer violates 8(a)(1) 25
if it communicates to employees that it will jeopardize their job security, wages, or other working
conditions if they support the union); Baddour, Inc., 303 NLRB 275 (1991) (an employers’ threats
of discipline or job loss for participation in protected concerted activities constitute violations of
the Act). The Board has applied this theory to explicit or implicit threats to employees, including
the loss of their jobs or other adverse work consequences. Jewish Home for the Elderly of Fairfield 30
County, 343 NLRB 1069, 1091–1096 (2004) (employer violated Sec. 8(a)(1) of the Act by
threatening loss of benefits, loss of jobs, and closure of the facility if the employees supported the
union); Sheraton Hotel Waterbury, 312 NLRB 304, 305 (1993) (implied threat contained in
employer’s posting violated Section 8(a)(1) of the Act); Metro One Loss Prevention Services
Group, supra at 89–90 (employer implied working conditions could deteriorate if the employees 35
supported the union organizing drive in violation of Sec. 8(a)(1) of the Act).
While the Board has found that an employer is free to make statements predicting the
effects of unionization to employees, such statements must be “carefully phrased on the basis of
objective fact to convey an employer’s belief as to demonstrably probable consequences beyond 40
[its] control.” NLRB v. Gissel Packing Co., supra at 618. If there is any implication that an
employer may or may not take action solely on its own initiative for reasons unrelated to economic
necessities and known only to the employer, the statement is no longer a reasonable prediction
based on available facts, but a threat of retaliation based on misrepresentation and coercion. Id. at
618. Alleged threats that are questionable need not be explicit “if the language used…can 45
reasonably be construed as threatening.” NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir.
JD–21–20
26
1970). The Board considers the totality of the circumstances in assessing an implicit or ambiguous
threat. KSM Industries, 336 NLRB 133 (2001).
The Board has long held that employer threats or coercive statements that employee
unionization would result in the loss of wages violate Section 8(a)(1) of the Act. Oklahoma City 5
Collection, 263 NLRB 79, 80 (1982), enfd. mem. 679 F.2d 900 (9th Cir. 1982). Predictions of
plant closures, loss of contracts, loss or transfer of work, loss of jobs, or changes in working
conditions or benefits must be based on objective facts, and an employer must explain how a
change in existing benefits and working conditions could result from the give-and-take of future
collective bargaining rather than suggesting that employees, by entertaining the prospect of union 10
representation, were courting the wrath of the employer. Franklinton Preparatory Academy, 366
NLRB No. 67, slip op. at 2 (2018). The burden of proof is on the employer to show that a
prediction was based on objective fact. Schaumburg Hyundai, 318 NLRB 449 (1995).
b. The Bargaining from zero or “from scratch” threats by Habermehl in his meetings 15
(complaint para. 5(a)), Guadalupe Rodriguez (in his conversations with Aguilar) (complaint
para. 6(a)), and Respondent in its handout to employees titled “Boar’s Head Brand,”
which threatened the loss of benefits.
As mentioned above, the evidence establishes that in the mandatory meetings held by 20
Corporate Director of Human Resources Habermehl in August 2017, in response to the Union’s
organizing campaign, he told employees that in any prospective negotiations with the Union, the
Respondent would begin or start at “zero to the minimum” and that a lot of benefits could be lost.
Several days later, Production Supervisor Rodriguez repeated Habermehl’s coercive statement in
a conversation with Walter Aguilar that employees could lose their bonuses and their picnics 25
provided by the Company, and that Respondent would negotiate from zero if the Union came in.
The Respondent nailed home those threats with a written document to all employees that it attached
to their paychecks in which it reaffirmed its direct and unmistakable position that any negotiations
would start from zero or the minimum, and not from what the employees currently had, if a union
was voted in by the employees. That particular statement read:30
If a union gets in, will negotiations start with what we already have? No. If a union
is voted in, negotiations will not start at current wages and benefits. Nobody knows
what the final outcome of the contract will be because each item is negotiated
starting with zero or the minimum allowed by law. If could be more but it could 35
be less. (GC Exh. 6.)
Critically, Shannon Van Noy testified that the “Boar’s Head Brand” handout document
was an accurate reflection and summation of the statements made by Habermehl in his meetings.
(Tr. 854‒856.)40
The Board has long held that “bargaining from scratch” statements by employers violate
Section 8(a)(1) of the Act if they reasonably could be understood by employees as a threat of loss
of existing benefits and provide employees with the impression that what they may ultimately
receive depends upon what the union can induce the employer to restore. The duty to bargain 45
ordinarily forecloses unilateral changes to terms and conditions of employment, and bargaining
begins with existing wages and conditions of work. On the other hand, such statements do not
JD–21–20
27
constitute a violation of the Act when the employer’s other communications make it clear that any
reduction in wages or benefits will occur only as a result of the normal give and take of
negotiations. Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980) citing TRW United Greenfield
Division, 245 NLRB 1135 (1979); Stumpf Motor Co., Inc., 208 NLRB 431 (1974); BP Amico
Chemical, 351 NLRB 614, 617‒618 (2007) (statements regarding loss of existing benefits are 5
evaluated in terms of whether they are more reasonably construed as a result of union selection
versus a “possible outcome of good-faith bargaining).
The Board has stated that “‘bargaining from scratch’ is such a dangerous phrase which
carries within it the seed of a threat that the employer will become punitively intransient in the 10
event the union wins the election.” It emphasized that when such a statement can be reasonably
read in the context of a threat to either end existing benefits prior to bargaining or to “adopt a
regressive bargaining posture designed to force a reduction of existing benefits for the purpose of
penalizing the employees” for selecting the union, it will find a violation of the Act. Coach &
Equipment Sales Corp., 228 NLRB 440, 440‒441 (1977). In so finding, the Board stressed that 15
the “presence of contemporaneous threats or unfair labor practices is often a critical factor in
determining whether there is a threatening color to the employer’s remarks.” Id.
In this case, Respondent’s references to bargaining from zero to the minimum and similar
statements went beyond descriptions of the normal give and take of collective bargaining and are 20
more reasonably construed as a result of selection versus a possible outcome of good-faith
bargaining. Those statements were also accompanied by contemporaneous threats that benefits,
including bonuses and company sponsored picnics, could be lost. Those statements reasonably
would be, and in fact were understood by the employees as threats to their existing wages and
benefits, leaving them with the impression that what they might ultimately receive through 25
collective bargaining would be dependent upon what the Union could recoup from the Respondent.
In fact, the Board has specifically found that an employer’s statement that bargaining on wages
would start from the minimum wage was unlawful. Oklahoma City Collection, 263 NLRB 79,
82‒83 (1982), enfd. mem. 679 F.2d 900 (9th Cir. 1982). As such, the statements discussed above
violated Section 8(a)(1) of the Act. 30
c. The threatening statements made by Supervisor Maria Mendoza to employees regarding the
loss of benefits in the form of losing their grace period for donning and doffing (complaint
para. 16(b)) and informing employees the Union would not be able to get them reinstated
if Respondent terminates them and they will end up in court, thereby informing them that it 35
would be futile to support the Union. (complaint para. 18(c)).
The record establishes that Production Supervisor Maria Mendoza approached Elba Rivas
and other employees on the production line in October 2017, and asked them if they “would like
to have the Union,” and if they were “agreeing with the Union?” When one employee responded, 40
Mendoza told the employees that if the Union came in the Company will take away the 7 minutes
they were allotted for “donning and doffing” their safety and protective gear during breaks, and
that the Company will take away their bonuses. In addition, in December 2017, Mendoza
approached employee Ascension Rios in his work area and asked him if he supported the Union,
and that if he did, the Respondent would “notice” him and he could end up “in court.”45
JD–21–20
28
As mentioned above, an employer must explain how a change in existing benefits and
working conditions could result from the give-and-take of future collective bargaining rather than
suggesting that employees, by entering the prospect of union representation, were courting the
wrath of the employer. Franklinton Preparatory Academy, 366 NLRB No. 67, slip op. at 2 (2018).
In this case, Mendoza’s statements lacked any objective basis and did not predict demonstrably 5
probable consequences beyond the Respondent’s control for the purported loss of “donning and
doffing” time and bonuses for the employees. In fact, Mendoza never made any attempt to tie the
loss of those existing benefits to the give-and-take of future collective bargaining. Id. slip op. at
2. As a result, Mendoza’s statements went “well beyond advising employees of the potential
consequences of good-faith collective bargaining and instead constituted statements threatening 10
the loss of existing benefits and terms and conditions of employment.” In addition, no objective
basis was given for the statement that the Union would not be able to get them reinstated if they
were discharged or that supporting the Union would somehow cause employees to end up in court,
which was coercive and conveyed to them that it would be futile to support the Union. The
Respondent thus failed to meet its burden of proving that Mendoza’s statements or predictions 15
were based on objective fact, and as such, these threats were coercive and in violation of Section
8(a)(1) of the Act.
d. The unlawful interrogations of employees’ union support and activities by Guadalupe
Rodriguez (complaint para. 6(b)) and Maria Mendoza (complaint para.20
16(a) and 18(a)).
The record establishes that Guadalupe Rodriguez approached Aguilar while working on
the line and asked him why he wanted the Union or what was the point of having a union. When
Aguilar responded that he wanted the Union to help bring change, Rodriguez told him the Union 25
was “no good,” it only represented people who did not want to work, and that the employees would
“feel sorry about it.” Rodriguez’s interrogation was also followed by statements that employee
bonuses and the company sponsored picnics were at risk. Similarly, Maria Mendoza asked Elba
Rivas and other nearby employees working on the line if they would like to have the Union, and
if they were “agreeing with the Union.” That inquiry was accompanied by Mendoza’s statement 30
that if the employees selected the Union, they would lose the 7 minutes they were allotted at the
time for donning and doffing their safety gear during break times. In addition, Mendoza asked
Ascension Rios in his work area if he supported the Union, and that if he did, he would be noticed
by the Company and that he could “end up in court.”
35
With issues of interrogation, the Board determines “whether under all the circumstances
the interrogation [of an employee] reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.” Scheid Electric, 355 NLRB 160 (2010); Metro-West Ambulance Service,
Inc., 360 NLRB 1029 (2014); Intertape Polymer Corp., 360 NLRB 957 (2014); Bloomfield Health
Care Center, 352 NLRB 252 (2008), quoting Rossmore House, 269 NLRB 1176, 1178 fn. 20 40
(1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Among the
factors the Board considers in such an analysis are the identity of the questioner, the place and
method of the interrogation, the background of the questioning, the nature of the information
sought, and whether the employee is an open union supporter. Scheid Electric, supra at 160;
Stevens Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1295 (2009). While the Board will consider45
whether an employee is an open union supporter in determining whether an interrogation is
JD–21–20
29
coercive, that factor is merely one of many and is not determinative. Norton Audubon Hospital,
338 NLRB 320 (2002).
Applying these factors, I find that the questioning of employees by both Rodriguez and
Mendoza was coercive. The identity of the questioners in this case reveals that the questioning 5
came from the Respondent’s statutory supervisors who possessed authority over the employees
questioned, including authority to evaluate employees and possibly recommend wage increases.
The Board has found questioning by similarly situated statutory supervisors to be coercive.
Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1182‒1183 (2011). In addition, I find the fact that
Rodriguez and Mendoza were the direct supervisors of the employees in question52 reasonably 10
tended to make the questioning that much more threatening. Intertape Polymer Corp., 360 NLRB
957, 958 (2014); See e.g., Station Casinos, LLC, 358 NLRB 1556, 1557‒1558, 1605 (2012).
The place and method of the interrogation in this case also weighs in favor of finding the
questioning coercive. The instances of interrogation occurred at work while the employees were 15
working on the production floor or their employee work area, which added to the coercive tendency
of the questioning. Absent evidence that Rodriguez and Mendoza had an office or other location
of authority at the plant, the production floor or area were their locations of authority over the
employees, where it is reasonable to believe their questioning would pressure the employees to
feel a duty to respond to those in positions of authority over them. The Board has found20
interrogations under similar circumstances to be coercive and unlawful. Camaco Lorain Mfg.
Plant, supra at 1182‒1183; See, e.g., Central Valley Meat Co., 346 NLRB 1078, 1087 (2006)
(finding unlawful an interrogation by a department foreman on the “kill floor” of a
slaughterhouse).
25
I also find the nature of the information sought and whether the employees were open union
supports added to the coercive tendency of the interrogations because the questioning concerned
whether the employees supported the Union at a time when the Union’s organizing campaign was
a “big deal” at the Holland facility.53 There is no evidence that Rivas was an open union supporter,
and she did not respond to Mendoza’s questioning. I find that her reluctance to answer her 30
supervisor’s inquiry about supporting the Union weighed in favor of finding that interrogation
coercive. Aguilar and Rios were open about their union support, but that fact, however, is not
determinative under the circumstances of this case where the other factors strongly weigh in favor
of finding the interrogations coercive. In that connection, the background and nature of the
interrogations show that the questioning was accompanied by the supervisors’ threats about what 35
adverse actions the Respondent could take against the employees if they supported the Union.
After Aguilar responded to Rodriguez’s question by stating his support for the Union, Rodriguez
told him that the Union only represented those who did not want to work, the employees would
“feel sorry about it,” and that they risked losing their bonuses and the Company picnics if they
supported the Union. Likewise, when Mendoza questioned Rivas about her union support, she 40
told Rivas that supporting the Union would result in the loss of their donning and doffing time on
breaks. In addition, when Mendoza questioned Rios about his support for the Union, she informed
him that his support would be noticed by the Company and that he could “end up in court.” In the
context of these threats and Respondent’s contemporaneous unfair labor practices found herein,
52 Aguilar was directly supervised by Rodriguez. Rios and Rivas were directly supervised by Mendoza.
53 Mendoza testified that the Union campaign was a “big deal” at the Holland facility. (Tr. 997.)
JD–21–20
30
the questioning of these employees regarding their support for the Union would reasonably tend
to coerce the employees and restrain them from exercising their rights under Section 7 to engage
in union activities and support.
In defense to these allegations, the Respondent argues that Mendoza’s interrogations could 5
not have occurred due to the noise on the production line and employees having to concentrate on
their work. (R. Br. p. 56‒58.) As mentioned above, I found the credible evidence established that
Mendoza interrogated and made statements to the employees on the production line when it was
running, and those credibility determinations were supported by the record evidence.54 In addition,
the Respondent argues that Rodriguez’s questioning of Aguilar was not intended to be coercive 10
and that it was not unlawful because “the conversation was friendly” and Rodriguez did not
threaten or tell Aguilar that he would be punished for supporting the Union. (R. Br. p. 15.) These
arguments lack merit for several reasons. First, contrary to Respondent’s assertion, Rodriguez’s
interrogation was accompanied by threats that employee bonuses and the company sponsored
picnics were at risk if the Union came in. Secondly, even if the interrogation was unaccompanied 15
by a threat or intent to punish employees for their union support, the Board has held that intent or
motive of the respondent is not relevant with regard to 8(a)(1) violations of the Act. Exterior
Systems, Inc., 338 NLRB 677, 679 (2002); Scripps Memorial Hospital Encinitas, 347 NLRB 52
(2006); GM Electrics, 323 NLRB 125, 127 (1997); see also Williams Motor Transfer, 284 NLRB
1496, 1499 (1987). In addition, the absence of threats of punishment is immaterial because Board 20
law does not require that interrogations be accompanied by threats of punishment or retaliation for
them to be found unlawful. Oklahoma City Collection, supra at 80. Finally, Respondent’s assertion
that the interrogation was not unlawful because it was “friendly” is also irrelevant. The fact that
Aguilar may not have felt coerced by the interrogation is not relevant, as the Board has held that
actual coercion is not the test of whether an interrogation violates Section 8(a)(1) of the Act. 25
Oklahoma City Collection, supra at 81.55
Accordingly, I find that Rodriguez’s and Mendoza’s questioning of employees as to
whether they supported the Union constituted unlawful interrogations of their union sympathies or
support in violation of Section 8(a)(1) of the Act.30
35
54 Mendoza admitted she was able to briefly speak to employees working on the line when it was
running, and Villalobos acknowledged it was possible to communicate with employees working on the
production line. (Tr. 932‒939, 999‒1000.)
55 In addition, I note that as legal authority in support of its assertion that Rodriguez’s questioning was
lawful, Respondent relies on Hearthside Food Solutions, an Administrative Law Judge Decision (without
citation provided) that issued in 2012. I find the Respondent’s reliance on that Decision is misplaced since
exceptions to that Decision were not filed, and it was therefore never before the Board for review. As such,
that Decision has no precedential value.
JD–21–20
31
e. The Respondent’s solicitation of employee grievances and complaints by Bradley Rurka
(complaint para. 7(a)), solicitation of employee grievances by Larry Helfant (complaint para.
8(b)) and his promise to increase benefits by changing the vacation policy (complaint para.
8(d)), and by a handout to employees entitled “Explanation of Changes to Policies”
suggesting the use of a suggestion box (complaint para. 9).5
The record establishes that in this case, repeated and blatant solicitation of employee
complaints and grievances was a crucial part of the Respondent’s strategy to avoid having the
Union successfully organize its employees. The record establishes that such solicitation occurred
quickly and was done by some of the Respondent’s highest-ranking corporate and local officials. 10
Plant Manager Rurka, during his August 24, 2017 mandatory meetings with employees, read from
a prepared script titled “24 Hour Speech,” which informed employees that he was there to listen
to and consider employee concerns, and respond in a way that reinforced to employees that they
were a “family.” (GC Exh. 9.) Rurka discussed specific policy changes to terms and conditions
of work and informed the employees that “what [the Respondent is] changing is a good first step 15
towards bringing our family back together.” Rurka told the employees that it was unfair for them
to expect the Company to “fix things we don’t know about,” because even though a couple of
issues had been raised before, “many of the things [the employees] listed had never been brought
to our attention before.” (GC Exh. 9, p. 6.) Rurka then asked the employees to keep
communicating with management about their concerns so they could be addressed and possibly 20
remedied. In that connection, he stated that Respondent was “bringing back” the employee
suggestion box and promised that every comment would be considered and that management
would report back to the employees on what could and could not be fixed. The improvements and
changes in policy were then summarized in an “Explanation of Changes to Policies” that was
issued to all employees with their paychecks and which stated: “Suggestion Box – The box in the 25
hall by Accounts Payable is now a Suggestion Box. Use it.” (GC Exh. 7.) Van Noy testified that
while a suggestion box has been in the plant for a long time, it was rarely used by employees and
in August 2017, the Respondent moved the suggestion box to a more prominent location so the
employees would utilize it. (Tr. 712.)
30
A few days after Rurka’s meetings, Helfant again visited the facility to hold mandatory
meetings for the employees to get “general feedback” about “anything.” He explained that he was
there to hear and try to address their complaints, and that the two main issues were the vacation
and attendance policies. Helfant also said he was aware of the problems at the plant and that he
would like to “solve” their problems. A maintenance employee also testified that Helfant 35
specifically asked the employees how Respondent could “help us out in maintenance…with
providing us with tools…,” he asked what the employees “find the Company [is] at fault for,” and
he inquired about the employees’ opinions concerning the Company’s policies.
The record establishes that Rurka and Helfant conveyed that the Respondent was willing 40
and able to address and solve employee concerns and complaints, thereby inferring that selecting
a union as their bargaining representative was not necessary. The Board has held that the
solicitation of employee grievances during an organizing campaign “raises an inference that the
employer is promising to remedy the grievances,” which is an inference that is “particularly
compelling when, during a union organizational campaign, an employer has not previously had a 45
practice of soliciting employee grievances.” Garda CL Great Lakes, Inc., 359 NLRB 1334 (2013),
citing Amptech, Inc., 342 NLRB 1131, 1137 (2004); Desert Aggregates, 340 NLRB 289, 297‒298
JD–21–20
32
(2003) (Employer statements that union campaign had “rung bells all the way to the top” of the
company coupled with an appeal that employees should “give the company a year” to see what
changes would be made, constituted an unlawful solicitation and promise to remedy employee
grievances); Jefferson Smuffit Corp., 325 NLRB 280, 283 (1998) (Employer’s statement to
employees “if you have further problems or there’s things in the plant that you don’t like, why 5
don’t you give us a chance to address them,” found to be unlawful solicitation and implied promise
to remedy grievances); See also Multi-Natl. Food Serv., 238 NLRB 1031, 1036 (1979), citing
Merle Lindsey Chevrolet, Inc., 231 NLRB 478 (1977). It is also established that it is not the
solicitation of grievances itself that violates the Act, but the employer’s explicit or implicit promise
to remedy the solicited grievances that impresses upon employees the notion that union 10
representation is unnecessary. See Wal-Mart Stores, 340 NLRB 637, 640 (2003).
The Respondent argues that the statements were not unlawful solicitations because the
Company had a “past practice” of soliciting grievances, and where such practice exists, an
employer “may continue to do so during a union campaign.” (R. Br. p. 19.) In support of this 15
argument, the Respondent relies on the fact that prior to the Union organizing, it had routinely
inquired whether employees had complaints or concerns about work, using methods such as:
monthly “Town Hall” meetings with two employee representatives from each department who
could share their concerns (Tr. 874‒875; 1005, 1038‒1039); maintaining an “open door” policy
(Tr. 1041); maintaining “suggestion boxes” (Tr. 1041); by conducting “Stay Interviews” for 20
employees to “check in” (Tr. 1039‒1040); and by conducting “exit interviews” where departing
employees are asked their reason for leaving the Company. (Tr. 1040.)
The Respondent’s argument, however, lacks merit. The evidence establishes that while the
Respondent had provided for the solicitation of grievances through Town Hall meetings, an open 25
door policy, a suggestion box, and stay/exit interviews, the solicitation of grievances in response
to the Union organizing campaign went beyond those methods, and it was done specifically in
response to the union campaign and for the explicit purpose of responding to the campaign, despite
Respondent’s denials to the contrary. The Respondent’s chosen form for soliciting employee
grievances after knowledge of the Union organizing was also distinguishable from its past 30
practices because, as opposed to suggestion boxes that were seldom utilized, Town Hall meetings,
an open door policy, and interviews, the Respondent’s solicitations at issue were done by
mandatory meetings for all employees with some of its highest ranking officials who traveled from
the Corporate headquarters, and the plant manager, who was the highest ranking local official.
The Respondent’s approach to having some of its highest corporate and local officers solicit 35
grievances is different from its past practice and would reasonable have given employees the idea
that those grievances would be more likely to be resolved and fixed because they were coming
from those in a position to make such changes a reality.
The Respondent’s argument that the solicitations of grievances was not unlawful because 40
it was done the same way it had solicited grievances before the Union’s campaign is also belied
by the fact that many of the grievances aired by the employees in the solicitations at issue were
different than previous solicitations. In that connection, the Respondent acknowledged in Rurka’s
speech that distinction when it told the employees that “it was unfair for you to expect us to fix
things we don’t know about. While a couple of issues had been raised before, many of the things 45
you listed had never been brought to our attention before.” (GC Exh. 9, p. 6) (emphasis added).
The past practice of solicitations also differs from the solicitations at issue in that they were
JD–21–20
33
solicitations from individual employees or employee representatives in Town Hall meetings, while
the instant solicitations were to all production and maintenance employees in mandatory meetings
held by Respondent’s highest officials.56
The Respondent’s post-campaign solicitations were therefore distinguishable from the 5
“practice” it maintained prior to the union campaign. The Respondent’s solicitation of employee
grievances during the organizing campaign, accompanied by the express or implied promises to
remedy them, created compelling inferences that the Respondent was promising to remedy those
grievances. Laboratory Corp. of America Holdings, 333 NLRB 284 (2001). The inference that an
employer that solicits grievances in a pre-election setting will remedy such grievances is 10
rebuttable. Uarco Inc., 216 NLRB 1, 2 (1974). That inference, however, has not been rebutted
here. There is no evidence that the Respondent previously held similar mandatory employee
meetings with its highest ranking corporate and local officials to solicit employees’ concerns about
their working conditions, nor is there evidence that it promised to remedy grievances it received
in the prior solicitations. In addition, there is no evidence that the Respondent previously followed 15
up its past practice of soliciting grievances with handouts to employees such as its “Explanation
of Changes to Policies,” where it informed them that the solicited complaints were being changed
or remedied, as it did shortly after Rurka’s and Helfant’s meetings.57
I find that the Respondent’s statements to employees by Rurka and Helfant, and its 20
notification to employees to use the suggestion box that had been moved to a more prominent
location in its “Explanation of Changes to Policies,” were clearly solicitations of grievances and
implied, if not explicit, promises to remedy those grievances. As the U.S. Supreme Court has held
in NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964): “[t]he danger inherent in well-timed
increases to in benefits is the suggestion of a fist inside a velvet glove.” The employees in this 25
case were not likely to miss the inference that the source of benefits now being conferred were
also “the source from which future benefits must flow and which may dry up if it is not obliged.”
Id. at 409. The Respondent therefore violated Section 8(a)(1) of the Act as alleged.
f. The allegation that Shannon Van Noy and security guards on four separate occasions 30
(October 11, 18, 25, and November 16, 2017), engaged in surveillance and created the
impression of surveillance of employees’ union activities. (Complaint para. 12(a).)
During the handbilling that occurred on October 11, 2017, Security Officer Gerald Cox
and other security personnel went out to the parking lot because cars were slowing down or 35
56 The Respondent’s “Explanation of Changes to Policies” suggesting the use of a suggestion box was
also provided to all hourly employees, and not just to individual employees.
57 The precedent cited by the Respondent is also distinguishable from the facts of this case. In that
connection, the Respondent relies on Johnson Technology, Inc., 345 NLRB 762 (2005). In that case, the
supervisor approached an employee at her machine and solicited grievances where the employer had an
established pattern of soliciting employee grievances in that manner. While the solicitation in Johnson
Technology concerned a single employee, the solicitation in the instant case involved soliciting grievances
from all the production and maintenance employees in mandatory meetings held by the highest-ranking
officials, which was not Respondent’s established past pattern or method of soliciting grievances. In
addition, the supervisor in Johnson Technology did not expressly or impliedly promise to remedy the
employee’s concerns, whereas in the instant case, the Respondent impliedly, if not expressly, promised that
the grievances would be remedied.
JD–21–20
34
stopping to receive Union flyers that were being handed out. It is undisputed that during the time
of the employees’ shift change, traffic in the parking lot was backed up. Cox, Security Supervisor
Ronald Ortega, and other security officers went out to maintain a safe environment and to keep
traffic moving during the shift change that started at 2:30 p.m. (Tr. 1346‒1352.) At that time, the
guards, verbally and by using hand motions, told those in their cars to keep moving so the parking 5
lot traffic would flow. While out in the parking lot tending to the traffic backup, they observed
employees handing out Union flyers. However, Ortega and the security detail remained in the
parking lot the entire time that the employees were attempting to distribute their Union literature,
even after the traffic backup ended, and they admitted that they continued to watch employees
engaged in union activity and they continued to encourage other employees in their vehicles to 10
keep moving past the handbillers. Even after the traffic stopped being backed up, and after Van
Noy, Rodriguez, and Emmons returned to the facility, Ortega remained in the parking lot for 2 and
a half hours that day “observing” the employees handbilling, and he noticed when employees took
flyers and when they did not.
15
When the employees handed out union literature in the parking lot on October 18, 25, and
November 16, they were again joined by various security guards and personnel who continued to
observe the employees and direct vehicles to keep moving past the handbillers. On those
occasions, however, there were no significant traffic backups or instances where cars were
prevented from safely exiting the lot. Ortega even acknowledged that on October 18, 25, and 20
November 16, in terms of cars being unable to get out of the parking lot, “it wasn’t bad.” Despite
the lack of traffic backups on those dates the security personnel nevertheless went out to the
parking lot to “observe what was going on,” and at times they were in close proximity to the
employees handbilling. In particular, despite observing the employees handing out Union flyers
when there were no traffic problems like that which occurred on October 11, Cox acknowledged 25
that on October 25 the Security Officers came in early that day and stayed late to observe the
employees handing out flyers, when they had never before come in early and stayed late for any
employee activities in the parking lot.
With regard to surveillance, it is well established that management officials may observe 30
open and public union or protected activity on or near the employer’s premises, without violating
Section 8(a)(1) of the Act, unless such officials engage in behavior that is “out of the ordinary”
and thereby coercive. Aladdin Gaming, LLC, 345 NLRB 585, 585‒586 (2005); Sands Hotel &
Casino, San Juan, 306 NLRB 172 (1992), enfd. sub nom. mem. S.J.R.R., Inc. v. NLRB, 993 F.2d
913 (D.C. Cir. 1993); PartyLite Worldwide, Inc., 344 NLRB 1342 (2005); Arrow Automotive35
Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982). In determining whether an
employer’s surveillance is unlawful, the Board considers indicia of coerciveness, which include
the duration of the observation, the employer’s distance from its employees while observing them,
and whether the employer engaged in other coercive behavior during its observation. Aladdin
Gaming, supra at 586. 40
In this case, even though the employees handed out Union literature in the open on the
Respondent’s property and in view of the public, Respondent’s security officers, on all four
occasions went out to the parking lot and at times followed and were in close proximity to the
employees. They also observed the employees engaged in that union activity for extended periods 45
of time, including at least one occasion when the Security Officers came in early and stayed late
to observe the employees handing out flyers, when they had never before done that for any
JD–21–20
35
activities in the parking lot. In addition, they engaged in other coercive behavior during their
observation, such as continuing to encourage employees to keep moving past the employees
handing out flyers even when the traffic was not backed up.
It is important to note that the record is devoid of any evidence that Security Supervisor 5
Ortega stood out in the parking lot on a regular basis for long periods of time to observe employees.
Likewise, there is no evidence that Respondent’s security personnel had a regular practice of
standing in close proximity to employees while they were in the parking lot, and that security
regularly discouraged employees from communicating with each other while in the parking lot. In
fact, the record establishes that it was not unusual for employees to meet and congregate in the 10
Company parking lot for various purposes, such as selling food out of their vehicles. On those
occasions, the security officers did not go into the parking lot to observe or monitor that activity
in any way, and the employees traditionally engaged in such activities without security presence
or interference.
15
The Respondent argues that the guards were required to be in the parking lot because of
the traffic backup and due to employee safety, and they were not there to surveil the employees
who were handbilling. (R. Br. p. 46.) This argument is unsupported by the evidence and it lacks
merit. It may have been permissible for security guards to watch what was going on and attempt
to alleviate the backup of traffic in the lot on October 11 during the shift change, when it is 20
undisputed that traffic was backed up. However, after the traffic backup ended that day, security
remained in the lot and continued to follow and observe the employees handing out union flyers.
In addition, no such significant backups or traffic problems occurred on October 18, 25, or
November 16, when security still went out to the parking lot to follow and observe the employees
who were engaged in handing out union literature. I find that such conduct on all 4 days of the 25
employees’ handbilling activity, except for the time period of the shift change on October 11, was
“out of the ordinary,” and it was coercive and clearly constituted unlawful surveillance of the
employees’ protected union activities in violation of Section 8(a)(1) of the Act.58
58 The Respondent also argues that the General Counsel’s amendment of the complaint allegations
from denial of employee access to the parking lot to allegations of unlawful surveillance, denied it due
process because it was allegedly “prevented from presenting evidence denying surveillance.” (R. Br. p.
49.) There is no merit to this allegation. Under Sec. 102.17 of the Board’s Rules and Regulations, a judge
has wide discretion to grant motions to amend a complaint. Las Palmas Medical Center, 358 NRLB No.
54 fn. 1 (2012); Empire State Weeklies, Inc., 354 NLRB 815, 816 (2009). Moreover, if the matter has been
fully litigated, and the amendment conforms the complaint to the evidence, the Board has stated that the
motion to amend generally should be granted. See, e.g., Pincus Elevator & Electric Co., 308 NLRB 684,
685 (1992), enfd. 998 F.2d 1004 (3d Cir. 1993). In the instant case, the original and amended allegations
involved the same individuals (Respondent’s human resource personnel and security guards), the same
location (the Respondent’s parking lot), the same dates (October 11, 18, 25, and November 16, 2017), and
the same activities that occurred in that parking lot. The amendments also conform the complaint to the
evidence, and the Respondent called and elicited testimony from most, if not all, of the Respondent’s
witnesses that were involved in the alleged surveillance activity. Finally, there is no evidence that the
Respondent was prejudiced in any way by the amendments to the complaint.
JD–21–20
36
g. Supervisor Carlos Giron, about October 2017, in the employee parking lot, allegedly created
the impression of surveillance of employee union activities by telling an employee that he saw his
picture on the Union’s Facebook page. (Complaint para. 17.)
In determining whether a statement or question created an unlawful impression of 5
surveillance, the Board considers “whether, under all the relevant circumstances, reasonable
employees would assume from the statement in question that their union or other protected
activities had been placed under surveillance.” Camaco Lorain Manufacturing Plant, 356 NLRB
1182, 1183 (2011); Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1276 (2005), enfd.
mem. 181 Fed. Appx. 85 (2d Cir. 2006) (citing Flexsteel Industries, Inc., 311 NLRB 257 (1993)); 10
Schrementi Bros., 179 NLRB 853 (1969). The Board has noted that impression of surveillance
violations do not require a finding that the employees involved attempted to keep their union
activities secret, or that the employer used unlawful means to obtain knowledge of the employees’
union activities. Frontier Telephone of Rochester, Inc., supra at 1276 fn. 19; See also United
Charter Service, 306 NLRB 150, 151 (1992). 15
The Board has held that “[t]he idea behind finding ‘an impression of surveillance’ as a
violation of Section 8(a)(1) of the Act is that employees should be free to participate in union
organizing campaigns without the fear that members of management are peering over their
shoulders, taking note of who is involved in union activities, and in what particular ways.” Tres 20
Estrellas de Oro, 329 NLRB 50, 51 (1999) (citing Flexsteel Industries, supra at 257). In
determining whether an employer’s statements or conduct unlawfully create the impression of
surveillance, the “essential focus has always been on the reasonableness of the employee’s
assumption that the employer was monitoring their union or protected activities.” Frontier
Telephone of Rochester, Inc., supra at 1276. The critical element of reasonableness is analyzed 25
under an objective standard, and not by the subjective reaction of the employee involved, to
determine whether the employer’s actions tend to restrain, coerce, or interfere with the employee’s
Section 7 rights. Id.; Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992).
In this case, one of Respondent’s office employees, on her own volition, told Supervisor 30
Carlos Giron that some of the Respondent’s employees, including Ascension Rio, had their
photographs on the Union’s Facebook page on the internet, and she then showed him the Facebook
page that she had on her cell phone. Shortly thereafter, on one of the occasions when employees
were passing out Union flyers, Giron approached Rios in the Company parking lot and told him
that he saw Rios’ photograph on the Union’s Facebook page, and he stated that Rios was “with the 35
Union.” Rios acknowledged that he was in the picture with a group of employees who were at a
Union meeting. (Tr. 279.) The record reflects that the Facebook page “Boar’s Head Workers
United” was publicly accessible on the internet. (Tr. 282.) Giron acknowledged approaching and
confronting Rios and telling him that he was surprised that Rios was on the Union Facebook page.
40
The General Counsel argues that when Giron informed Rios that he had been looking at
the Union Facebook page and that he was surprised Rios was on it, it was reasonable for Rios to
believe or assume that Giron was in some way monitoring employees’ union and protected
activities. The Respondent, however, argues that Giron’s statement to Rios did not create the
impression of surveillance because the photograph was “intentionally and publicly posted to 45
Facebook” and the posting was “publicly assessible.” (R. Br. p. 62.)
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I find the Respondent’s argument has merit. It is clear from the record that Rios was open
about his Union activities and support. Union Organizer Castillo testified that he took the
photograph of the employees with the intent to post it on Facebook, which was accessible to the
public, and to post it showing the identity of the Union supporters to aid the Union’s organizing
campaign. (Tr. 572‒573.) Those employees, including Rios, authorized the Union’s use of the 5
photograph for the public forum. (Tr. 573.) Under these circumstances, it is not reasonable for an
employee to assume from the statement in question that his union activities had been placed under
surveillance. The Board has found under similar circumstances that an employer’s actions did not
create an unlawful impression of surveillance. In Frontier Telephone of Rochester, Inc., supra at
1276, the Board found that an employer did not unlawfully create the impression of surveillance 10
where a supervisor mentioned to an employee that he knew about the employee’s message posted
on a union website that was forwarded to him by another employee. In that case, the Board found
it significant that the employee acknowledged that message posted on the website was accessible
to the public and could be read by others, and the employee should have reasonably assumed that
the posting was subject to public dissemination to other website subscribers. Id. Therefore, the 15
supervisor’s conduct did not create the impression that his union activities were under surveillance.
Id.
In support, Respondent cites Manor Care of Decatur, 327 NLRB 980, 980 (1999), which
is not directly on point with the facts of this case, but is similar in that the employee involved 20
(Minter) actively supported the Union and frequently wore union hats and numerous union buttons
on her work uniform. The supervisor in that case made comments in Minter’s work evaluation
that she needed to review the dress code because she wore large buttons on her work clothes, which
was admittedly a comment about her wearing union buttons. Id. In that case, the Board found the
comments did not unlawfully create the impression of surveillance because Minter’s wearing of 25
union buttons “was public and a matter of common knowledge.” Id. Manor Care of Decatur is
therefore persuasive in that Rio was also open about his union support and he gave permission to
have his photograph posted on a public forum in support of the Union’s organizing drive.
Under all the relevant circumstances, Rios’ union activity was in the open, and thus there 30
was no reason for him to believe that Giron acquired his knowledge by spying on the activity. A
reasonable employee would not assume from the statement in question that his union activities had
been placed under surveillance. Camaco Lorain Manufacturing Plant, supra; Frontier Telephone
of Rochester, Inc., supra; Flexsteel Industries, Inc., supra; See e.g., Michigan Roads Maintenance
Co., 344 NLRB 617, at fn. 4 (2005) (Board dismissing impression of surveillance allegation where 35
the employer’s statement revealed awareness of employee’s open union activity). As such, I find
that Giron’s statement to Rios did not create the impression that his union activities were under
surveillance in violation of Section 8(a)(1) of the Act, and I will dismiss that allegation.
h. The Respondent maintained an unlawful rule stating that “wearing unauthorized badges, 40
pins, or other items on helmet or exterior garments” was an example of misconduct that is very
serious and will result in progressive discipline (complaint para. 20)
It is well established that employees have a protected right to wear union insignia at work
in the absence of special circumstances. Long Beach Memorial Center, Inc., d/b/a Long Beach 45
Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach, 366 NLRB
No. 66, slip op. at 2 (2018); See George J. London Memorial Hospital, 238 NLRB 704, 708 (1978).
JD–21–20
38
The Board has held that an employer may not prohibit employees from wearing button and pins
containing union or other protected concerted messages unless the employer can show special
circumstances justifying the restriction. Arden Post-Acute Rehab, 365 NLRB No. 109, slip op. at
17‒18 (2017); In-N-Out Burger, Inc., 365 NLRB No. 39 (2017), enfd. 894 F.3d 707 (5th Cir.
2018); Boch Honda, 362 NLRB 706, 707 (2015), enfd. 826 F.3d 558 (1st Cir. 2016); Cintas Corp., 5
353 NLRB 752 (2009). The Board has only found special circumstances justifying the proscription
of union insignia when the item or display jeopardizes employee safety, equipment or product
safety, or unreasonably interferes with a public image which the employer has established as part
of its business plan. United Parcel Service, 312 NLRB 596, 597 (1993), citing Nordstrom Inc.,
264 NLRB 698, 700 (1982).59 10
The Respondent’s proffered special circumstances for proscribing “unauthorized badges,
pins or other items on helmet or exterior garments” is food safety and to avoid product
contamination by foreign objects or material that may be brought in on employees’ clothing, which
is certainly reasonable and justified. The Respondent argues that rule applies only to food 15
production and exposed food storage areas of the plant, and not to non-production areas. (R. Br.
p. 68‒69.) The problem with the rule, however, is that it makes no distinction between production
areas and non-production areas. A rule that curtails employees’ Section 7 rights to wear union
insignia in the workplace must be narrowly tailored to the special circumstances justifying
maintenance of the rule, and the employer bears the burden of proving such special circumstances. 20
Boch Honda, supra, at 707; P.S.K Supermarkets, 349 NLRB 34, 34‒35 (2007). In addition, the
Board has held that while special circumstances may justify an employer’s ban on buttons worn in
public areas, it does not necessarily justify a ban on such buttons worn in non-public areas. W San
Diego, 348 NLRB 372, 373‒374 (2006). In this case, the Respondent’s witnesses acknowledged
that Respondent had no need to prohibit badges and pins in non-production areas.60 (Tr. 826‒827, 25
1571‒1572.) Since the Respondent has failed to demonstrate special circumstances justifying its
absolute prohibition on badges and pins in non-production areas, its maintenance of this overly
broad rule prohibiting badges and pins violates Section 8(a)(1) of the Act.
30
59 In Boeing Co., 365 NLRB No. 154 (2017) the Board adopted a new standard for evaluating an
employer’s work place rule, policy, or handbook provision, wherein the Boeing test considers both the
legitimate justifications associated with the disputed rule and any adverse impact the rule may have on
protected activity. The Board in Boeing, however, did not alter its well-established standards regarding
certain kinds of rules where the Board has already struck a balance between employee rights and employer
business interests. As it pertains to the instant case, the Boeing decision did not deal with the “special
circumstances” test of apparel rules. See, e.g., Long Beach Memorial Center, Inc., d/b/a Long Beach
Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach, 366 NLRB No. 66, slip
op. at 1‒2 (2018) (finding employer’s restrictions on wearing union pins overbroad and unlawful without
reference to the Boeing test).
60 Shannon Van Noy testified that purpose of the rule is food safety and to avoid contamination of the
product and wearing of pins and jewelry should only be prohibited in the production and production storage
areas.
JD–21–20
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2. The alleged violations of Section 8(a)(3) and (1) of the Act.
a. The Respondent’s suspension and discipline of employee Walter Aguilar on or about
August 25 and 31, 2017 (complaint paras. 21 and 23)
5
It is undisputed that Walter Aguilar was an open union supporter and in one of the meetings
held by Habermehl on August 21‒22, 2017, he challenged Respondent’s claims regarding the
working conditions at the unionized Virginia plant. In addition, a few days later, Supervisor
Rodriguez unlawfully interrogated him regarding his support for the Union.
10
The Respondent received a report on or about August 28 from an employee that Aguilar,
who worked on the “boxing line” packaging meats in boxes for shipment, was alleged to have been
telling employees to take it easy or slow down their work on that line. Van Noy, determining it
was a serious situation, reported to Habermehl the conduct Aguilar was accused of, and that he
was a union supporter out of concern that possibly discipling a Union supporter could be 15
scrutinized. Habermehl responded that he should be treated like any other employee. The
Respondent conducted an investigation by speaking with Aguilar, who denied telling employees
to slow down in their work, but he subsequently admitted telling employees that he did not feel he
should have to do the work of two people. Aguilar was suspended pending an investigation to
eliminate the chances of having him on site attempting to talk to and influence witnesses to his 20
alleged conduct. Aguilar admitted that he told employees to “work easy” because there was a lot
of “pressure” and employees were being injured. He acknowledged, however, that the line on
which he worked was fully staffed and even though he thought there were not enough employees
on the production line, he never complained to management about it and he never filed any safety
concerns. There is no evidence that production was affected by Aguilar’s statement or that any 25
employees had been injured due to the pace of the production line.
In interviews conducted by Cochran, none of the employees said that Aguilar told them to
slow down production or stop working. However, some reported that Aguilar asked them why
they were hurrying, he mocked an employee and told him not to work so hard and that he should 30
relax, and he told employees not to work so hard. Another reported that Aguilar told one employee
to hurry up and then said that the harder she worked, Respondent would only pressure her to work
harder. In addition, one employee reported that Aguilar had told him not to work so hard.
The Respondent’s investigation was completed in 1 day and Cochran determined from the 35
employees interviewed that on many occasions Aguilar told employees to slow down their work.
After Aguilar served his 3-day suspension, his suspension was rescinded and he received a written
warning for attempting to cause a work slowdown. Cochran testified that Aguilar was disciplined
because he encouraged employees to slow down in the past as well as what was reported at that
time, and that progressive discipline was appropriate. His written warning stated that “[d]uring 40
the investigation it was reported that you made statements to multiple individuals encouraging
them to not work so fast or too hard,” in violation of Company Work Rule 2.23‒ “Restricting own
production or interfering with production of other employees.” No employees had previously
been disciplined for the same offense and even though the investigation was completed in 1 day,
Aguilar remained on administrative suspension for the following 2 days because Van Noy needed 45
to speak with supervision and plant manager as a team. Aguilar was subsequently paid for the
days he was suspended pending the investigation.
JD–21–20
40
As mentioned above, Section 7 of the Act provides in part that employees “shall have the
right to self-organization, to form, join, or assist labor organizations. . . .” To ensure that
employees are free to exercise their Section 7 rights without fear of reprisal, Section 8(a)(3) of the
Act makes it an unfair labor practice for an employer to discriminate against employees “in regard 5
to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization.” Thus, the Act prohibits employers from
discriminating against employees by disciplining or discharging them on the basis of their union
activities and/or for exercising their organization and collective-bargaining rights, including their
right to engage in concerted activities for the purpose of mutual aid and protection. See MCPC 10
Inc. v. NLRB, 813 F.3d 475, 479 (3d Cir. 2016).
Where an employer argues that it disciplined an employee for reasons unrelated to union
or protected activity, the Board and the courts rely on the so-called “mixed motive” or “dual
motive” discharge test set forth by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 15
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983); See also MCPC Inc. v. NLRB, 813 F.3d 475,
490 (3d Cir. 2016). In Wright Line, the Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) of the Act turning on
employer motivation. Under Wright Line, the General Counsel bears an initial burden of 20
establishing that an employee’s union or other protected concerted activity was a motivating factor
in the employer’s adverse employment action at issue. Id. at 1089. The General Counsel satisfies
the initial burden under Wright Line by showing that: (1) the employee engaged in union and/or
protected concerted activity; (2) the employer had knowledge of that activity; and (3) there was
animus against that activity on the part of the employer. Tschiggfrie Properties, Ltd., 368 NLRB 25
No. 120, slip op. at 1 fn. 3 (2019); Strongsteel of Alabama, LLC, 367 NLRB No. 90, slip op. at 1
(2019); Donaldson Bros. Ready Mix, 341 NLRB 958, 961 (2004); North Fork Service Joint
Ventures, 346 NLRB 1025, 1026 (2006); Willamette Industries, 341 NLRB 560, 562 (2004); See
also DHL Express (USA), Inc., 360 NLRB 730 (2014).
30
The Board’s Wright Line test is, and has always been, inherently a causation test.
Tschiggfrie Properties, Ltd., supra at slip op. 8. The Board, in clarifying the General Counsel’s
initial burden under Wright Line, and in particular its requirement of evidence of animus, has held
that circumstantial evidence of any animus or hostility toward union or protected concerted activity
is not enough to satisfy that burden. Tschiggfrie Properties, Ltd., supra slip op. at 8. To meet that 35
initial burden, the evidence of animus must support a causal relationship between the employee’s
union or protected concerted activity and the employer’s adverse employment action. Id. slip op.
at 1.
It is well established that proof of animus or discriminatory motivation can be based on 40
direct evidence or, under certain circumstances, it may be inferred from circumstantial evidence
based on the record as a whole. See Electrolux Home Products, 368 NLRB No. 34, slip op. at 3
(2019); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003); See also Fluor Daniel, Inc., 304
NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992). As support for an inference of
unlawful motivation, the Board may rely on, among other factors, disparate treatment of the 45
affected employee and the timing of the discipline relative to the employee’s protected activity.
See Embassy Vacation Resorts, supra at 848. In addition, the Board may infer animus against
JD–21–20
41
protected activities from pretextual reasons given for the adverse employment action. DHL
Express, supra, slip op. at 1 and fn.1. When an employer’s stated reasons for its decision are found
to be pretextual—that is, either false or not in fact relied upon— “discriminatory motive may be
inferred, but such an inference is not compelled.” Electrolux Home Products, supra, slip op. at 3.
“If [a trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that 5
there is another motive. More than that, he can infer that the motive is one that the employer
desires to conceal—an unlawful motive—at least where…the surrounding facts tend to reinforce
that inference.” Id.; See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).61
The Board, however, has held that some kinds of circumstantial evidence are more likely 10
than others to satisfy the General Counsel’s initial burden. In that connection, the Board stated:
For example, evidence that an employer has stated it will fire anyone who engages
in union activities, while undoubtedly ‘general” in that it is not tied to any particular
employee, may nevertheless be sufficient, under the circumstances of a particular 15
case, to give rise to a reasonable inference that a causal relationship exists between
the employee’s protected activity and the employer’s adverse action. In contrast,
other types of circumstantial evidence—for example, an isolated, one-on-one threat
or interrogation directed at someone other than the alleged discriminate and
involving someone else’s protected activity—may not be sufficient to give rise to 20
such an inference. Tschiggfrie Properties, Ltd., supra at 8.
Thus, the Board has held that the General Counsel does not invariably sustain his burden by
producing—in addition to evidence of the employee’s protected activity and the employer’s
knowledge thereof—any evidence of the employer’s animus or hostility toward union or other 25
protected activity. The evidence must instead be sufficient to establish that a causal relationship
exists between the employee’s protected activity and the employer’s adverse action against the
employee. Id.
Once the General Counsel makes such a prima facie showing sufficient to support the 30
inference that protected conduct was a “motivating factor” in the employer’s adverse action, the
burden then shifts to the employer to establish by a preponderance of the evidence that the same
action would have taken place even in the absence of the employee’s union or other protected
concerted activity. Tschiggfrie Properties, Ltd., supra, slip op. at 1, fn. 3; Strongsteel of Alabama,
supra, slip op. at 1; Lucky Cab Co., 360 NLRB 271, 276 (2014); Austal USA, LLC, 356 NLRB 35
363, 364 (2010); See also Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). This
burden may not be satisfied by an employer’s proffered reasons that are found to be pretextual,
(i.e., false reasons or reasons not in fact relied upon for the adverse employment action). In
rebutting the General Counsel’s prima facie showing that the protected conduct was a “motivating
factor” in the employer’s decision, the employer cannot simply present a legitimate reason for its 40
action but must persuade, by a preponderance of the evidence, that the same action would have
taken place even in the absence of the protected conduct. Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
61 “The absence of any legitimate basis for action, of course, may form part of the proof of the General
Counsel’s case.” Wright Line, 251 NLRB at 1088 fn. 12 (citing Shattuck Denn Mining, supra).
JD–21–20
42
In this case, the General Counsel has shown that Aguilar was engaged in union activities
and the Respondent had knowledge of those activities. There is, however, no direct evidence of
any animus towards Aguilar’s participation in union activities. Nevertheless, the General Counsel
submits that circumstantial evidence infers discriminatory motive or animus demonstrated by: (1)
the timing of the discipline was in close proximity to his union activities; (2) the Respondent’s 5
contemporaneous unfair labor practices “demonstrating its animus to the Union organizing
activity;” and (3) the asserted reason for Aguilar’s discipline was pretextual, as allegedly shown
by a “failure to conduct any meaningful investigation,” and Respondent’s disparate treatment of
Aguilar as related to other employees. (GC Br. p. 35.)
10
It is well-established that the timing of an employer’s adverse action could constitute
circumstantial evidence of unlawful motivation. Success Village Apartments, 348 NLRB 579, 579
fn. 5 (2006). The General Counsel asserts that animus should be inferred based on the timing of
Aguilar’s discipline in relation to his union activity. In this case, the discipline occurred shortly
after Aguilar’s union activity, and timing alone may be enough to infer unlawful motivation. 15
However, the operative word is “may,” not must. U.S. Cosmetics Corp., 368 NLRB No. 21, slip
op. at 2 fn. 6 (2019). With regard to the requirement of unlawful motivation, the General Counsel
argues that evidence of “animus toward the Union organizing activity” is found in the
Respondent’s contemporaneous unfair labor practices in this case, and that he has therefore met
his prima facie burden. As mentioned above, however, the General Counsel must establish that 20
the employee’s protected conduct was, in fact, a motivating factor in the Respondent’s decision,62
and it has held that the General Counsel “does not invariably sustain his burden by producing—in
addition to evidence of the employee’s union or protected activity and the employer’s knowledge
thereof—any evidence of the employer’s animus or hostility toward union or other protected
activity.” Tschiggfrie Properties, Ltd., supra, slip op. at 8. Instead, the evidence of animus must 25
be sufficient to establish that a causal relationship between the protected activity of that employee
and the employer’s adverse action against that employee. Id. slip op. at 1 and 8. While the
Respondent’s contemporaneous unfair labor practices in this case clearly demonstrate its animus
to the Union’s organizing in general, it is nevertheless insufficient under the extant Board law to
establish “a connection or nexus” between the Aguilar’s protected activity and the employer’s 30
discipline issued to Aguilar. Id. slip op. at 3.
With regard to the General Counsel’s argument that evidence of animus should also be
inferred by that fact that Respondent allegedly failed to conduct a meaningful investigation of the
allegations against Aguilar, the evidence establishes otherwise. The Respondent, concerned that35
disciplining a Union supporter would subject it to scrutiny, reported Aguilar’s infraction to the
corporate head of human resources, who informed human resources to treat the matter as it would
any other. The record shows that the Respondent then conducted an investigation by interviewing
Aguilar and other employee witnesses, and then consulted with supervision and management
before deciding that Aguilar had in fact violated one of its work rules. The fact that no employees 40
stopped working or that production was diminished, is not material as the rule does not require
that the employee who allegedly breached the rule was successful in affecting production, or that
the employee’s attempt to having employees slow their work was actually effective.
62 See, e.g., Manno Electric, supra at 280 fn. 12.
JD–21–20
43
Finally, with regard to the General Counsel’s assertion that animus is shown by the fact
that Aguilar was treated differently than other employees who committed infractions, the record
reveals that no other employees had been accused of engaging in conduct similar to that of
Aguilar’s. In support of that argument, the General Counsel states that employees who engaged
in more egregious behavior, such as verbal altercations, were not placed on administrative 5
suspension pending investigation and they were issued non-disciplinary coaching notices or letters
of “behavioral expectations” instead of written warnings. (GC Exh. 24‒26.) Admittedly though,
one employee received a written warning like Aguilar for shouting at another employee after being
warned of such behavior in the past. (GC Exh. 23.) The fact of the matter is, however, that the
other employees referenced by the General Counsel were not accused of engaging in conduct 10
similar to Aguilar. (Tr. 869‒872, 1076‒1079.) Therefore, the evidence is insufficient to establish
disparate treatment of Aguilar.
Based on the above, I find that while Aguilar was engaged in union activities and the
Respondent had knowledge of those activities, the General Counsel failed to establish beyond a 15
preponderance of the evidence that those union activities were a motivating factor in his
suspension pending investigation and his subsequent written disciplinary warning. The record is
devoid of any evidence that the Respondent harbored animus toward Aguilar’s union activities.
Critically, the evidence is speculative at best, and insufficient to support any reasonable inference
of unlawful motivation or animus towards Aguilar’s union activity by the Respondent. That 20
includes the fact that the evidence fails to show pretext for unlawful motivation, and there is no
evidence, either direct or circumstantial, that Respondent failed to conduct a meaningful
investigation or that Aguilar was treated differently than others. See, Tschiggfrie Properties, Ltd.,
supra slip op. at 1 and 8. As such, the General Counsel failed to satisfy his burden of establishing
a prima facie case of discrimination. Accordingly, the Respondent did not violate the Act by 25
suspending and disciplining Aguilar, and that complaint allegation will be dismissed.63
b. The Respondent’s increase in benefits to employees by providing hand tools for
maintenance employees and improving the attendance and vacation policies.
(complaint para. 24 and 26.)30
The record establishes that once the Respondent had knowledge of the Union’s organizing
campaign, it sought ways to address the issues that were driving its employees to consider having
a union represent them. At that time, Respondent required its maintenance employees to buy their
work tools, and it found out on August 9, 2017 that Union organizers had specifically talked to 35
maintenance employees about the fact that they were required to purchase their own tools and PPE.
The Respondent started inquiries of its other facilities regarding who provided what to the
employees and immediately started discussing providing tools to the maintenance employees in
Holland. (R. Exhs. 11 and 12.) Habermehl admitted instructing human resources at the Holland
plant to offer hand tools to the maintenance employees. (Tr. 65‒68.) In Helfant’s second meeting 40
he told the employees that the Company could help out the employees in maintenance by providing
“tools and learning.” (Tr. 365‒366.) Several weeks after that meeting with Helfant, the
63 I further find that, even if the General Counsel made a prima facie showing that the protected conduct
was a “motivating factor” in the Respondent’s decision to suspend and discipline Aguilar, the Respondent
has established, by a preponderance of the evidence, that the same action would have taken place even in
the absence of the protected conduct.
JD–21–20
44
Respondent Facility Manager Guy Yondo informed the maintenance employees that the Company
would order their toolboxes, and several weeks after that, in October/November 2017, the
Respondent followed through with its promise and bought tools for the maintenance employees.
(Tr. 370‒372, 711‒712, 1526‒1529.)
5
After knowledge of the Union campaign, the Respondent also began revisiting the
possibility of changing its attendance and vacation policies. (R. Exh. 12.) Respondent’s internal
communications make clear that the sudden interest in improving working conditions was directly
related to unionization. In one such email, Senior Vice President Habermehl strategized that
Respondent could not limit any proposed additional vacation benefits to “maintenance 10
[employees] only without giving union organizations a lot of ammunition for the production
group.” (GC Exh. 8.)
On August 24, Rurka met with employees to “follow up” on the issues raised in the
meetings held after Respondent discovered the organizing efforts. (GC Exh. 9.) Rurka told 15
employees that the Respondent heard their concerns and was responding in a way that reinforced
to employees that they were a “family.” Rurka also said that the “most common concern” was
about the attendance and vacation policies. Rurka also stated: “So we are going to try something
new. We are going to change the vacation policy….” (GC Exh. 9.) Furthermore, Rurka
announced that Respondent was adding to the list of court appearances, any meetings or events 20
related to immigration issues and expanding the list of medical visits qualifying for excused
absences. Rurka also told employees “what [the Respondent is] changing is a good first step
toward bringing our family back together,” and “we acknowledge that [vacation] is an important
issue to you…we don’t want to come to you empty handed.” He also announced changes to both
the lock out policy and the PPE equipment that was provided, two issues that were specifically 25
mentioned by the maintenance employees as the reasons they were considering Union
representation. (GC Exh. 9.)
Two weeks after Helfant conducted meetings with employees where he solicited their
complaints and informed them that he would do what he could do to remedy them, he traveled 30
back to Holland to announce that the vacation and attendance policies were being updated and
improved. Helfant said the Company was making policy changes, such as to the vacation and
attendance policies, and that those changes were improvements over the existing policies. In those
meetings, which included maintenance employees, Helfant also announced that the Company was
changing its policy to purchase tools at no cost to employees.35
About a week after Helfant’s September meetings, Respondent summarized its improved
policy changes and working conditions for employees in a one-page handout titled “Explanation
of Changes to Policies” and issued it with their paychecks. The changes included: (1) allowing
attendance points to drop off after 30 days instead of the current 60 day timeframe; (2) allowing 40
employees to take pre-scheduled vacation time for medical appointments; (3) allowing absences
to be taken for additional life events to be excused without the accrual of an attendance point; (4)
allowing employees the right to use vacation time for a call off (up to five time a year); (5) using
vacation time in 4 hour increments (where previously it had to be used in “full day increments”);
and (6) other changes to the wellness program, holiday pay, the lock out/tag out procedure, and 45
personal protective equipment for the employees. That document also announced the creation of
another suggestion box for employees, and it encouraged them to use it. (GC Exh. 7.)
JD–21–20
45
The Respondent’s changes in policy and working conditions discussed above and listed in
the “Explanation of Changes to Policy” handout, plus several more changes, were approved the
first week of September and implemented on October 1, 2017. The vacation policy, which was a
major source of complaints for several years, was changed and expanded to benefit the employees5
by providing that newer employees were given 5 days of vacation and senior employees received
2 more days of leave, and under some circumstances, leave was allowed in smaller increments
without prior approval. The policy for PPE for maintenance employees was also changed, and as
a follow up to that change, later in October/November 2017, Respondent changed its policy to
order and purchase work tools for the maintenance employees. All of these changes were approved 10
and implemented by the Respondent after knowledge of the Union organizing campaign.
In NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964), the U.S. Supreme Court has
held that an employer violates the Act when it grants a wage increase or other benefits for the
purpose of inducing employees to vote against the union. The Supreme Court explained that 15
Section 8(a)(1) “prohibits not only intrusive threats and promises, but also conduct immediately
favorable to employees which is undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasonably calculated to have that effect.” Id.
The standard articulated by the Court in Exchange Parts applies to allegations both that an
employer unlawfully announced a benefit in violation of Section 8(a)(1),64 and that it unlawfully 20
implemented a benefit in violation of Section 8(a)(3) of the Act. See In Home Health, Inc., 334
NLRB 281, 284 (2001); see also, Perdue Farms, 323 NLRB 345, 352‒353 (1997), enf. denied in
relevant part on other grounds 144 F.3d 830 (D.C. Cir. 1998).
The Board has held that an employer’s legal duty in deciding whether to grant benefits to 25
employees is to act as it would have if the union were not present. Red’s Express, 268 NLRB
1154, 1155 (1984). The evidence in this case establishes a very strong inference that Respondent
would not have granted the benefits to the employees if the Union was not present. The changes
to vacation and attendance policies, while brought up and sought by the human resources
department many years before the Union campaign, were approved and implemented only several 30
months after the Respondent found out about the organizing drive. In addition, evidence
establishing that the Respondent’s implementation of increased benefits was in response to and
the result of the Union’s presence is found in the contemporaneous unfair labor practice violations
of solicitation of grievances and complaints to discourage the employees’ support for the Union.
35
While the Board has inferred from the timing of such a grant of benefit that it was unlawful,
the Respondent may nevertheless rebut that inference by showing that the timing of its action is
explained by reasons other than the pending election. B&D Plastics, 302 NLRB 245 (1991). The
Board applies the same test and analysis in unfair labor practice cases. DMI Distribution of
Delaware, 334 NLRB 409, 410 fn. 9 (2001) (applying same analysis to unfair labor practice cases 40
as to objections cases); See Perdue Farms, 323 NLRB 345, 352 (1997), enfd. in relevant part 144
F.3d 830 (D.C. Cir. 1998); Desert Aggregates, 340 NLRB 289, 290‒291 (2003) citing Holly Farms
Corp., 311 NLRB 273, 274 (1993). In this case, the Respondent failed to rebut that inference.
64 See e.g., Village Thrift Store, 272 NLRB 572 (1983).
JD–21–20
46
The Respondent argues that it had been planning to change its vacation/attendance policies
for a long time, but the evidence shows that changes to those policies had been in existence floating
on the periphery since 2015. (R. Exhs. 11 and 12.) Other than exploratory emails between
managers from time to time, there was no evidence that any change in policy had been agreed upon
for discussion or implemented at any time before the Union organizing began. In fact, the evidence 5
establishes that Respondent’s owners were not receptive to improved vacation and attendance
benefits for their employees prior to the organizing campaign. (R. Exhs. 11 and 12.) The
Respondent was aware as early as 2015, if not earlier, that its vacation and attendance policies
caused many employees to be dissatisfied and that human resources regularly heard about such
concerns from employees. (Tr. 803, 1064, 1530.) Habermehl acknowledged that the Respondent10
started looking into the possibility of improving vacation benefits for employees around 2007, “a
decade prior to 2017,” but that when human resources would bring it up to senior management,
they were told that “ownership doesn’t believe in pay for time not worked.” (Tr. 1530.)
Habermehl also testified that in February 2015, he had a discussion with Corporate 15
leadership about a first-year maintenance employee at the non-union Ohio facility who was leaving
his job, but would stay if he had more vacation. (Tr. 1537.) When Habermehl engaged in
conversation with senior management officials about increasing vacation benefits for that
employee as well as others, he “ended up getting the same answer we always got…” which was
“we don’t…pay for time not worked,” and the options on changing employee vacation benefits20
“was shot down very quickly.” (Tr. 1537.) Habermehl also testified that in April 2016, when he
discussed with senior leadership, including Helfant, the fact that the lack of vacation time for first
year employees was a “glaring hole,” and after he provided Helfant with side-by-side comparisons
for the facility, they “[kept] hitting a roadblock that we don’t do pay for time not worked.” (Tr.
1539.) Even in June 2016, a proposal on increasing vacation benefits for the production and 25
maintenance employees at the non-union plants was given to senior leadership and “nothing really
happened” as the position that “we don’t pay for time not worked was kind of the prevalent attitude
[from] ownership.” (Tr. 1543‒1544.) Habermehl also presented a “numbers crunch” on the
vacation benefits sometime in 2016 to Helfant, who summarily rejected it and told him it was “not
a good time.” (Tr. 1545.)30
Thus, the Respondent’s assertion that the changes to the vacation policy were “in existence
for a long time” is not supported by the record. Instead, the record establishes, from the admissions
of the Respondent’s own witnesses, that while changes to the vacation and attendance policy had
been encouraged and presented to corporate ownership and senior leadership for consideration for 35
many years, the Respondent consciously decided not to increase those benefits for the non-union
employees until well after the Union’s organizing campaign started at its facility. Then, despite a
two-year period of no change, the matter was resolved within a month-and-a-half of learning about
the Union’s organizing campaign when the ownership authorized the changes in policy and
implemented them on October 1, 2017. The Respondent also argues that it changed its policies at 40
all its non-union facilities (R. Br. p. 77.), but, as noted above, the changes at Holland and the other
non-union facilities took place only after Respondent’s knowledge of the Union organizing and
only after employees expressed their desire to see change in response to the Respondent’s
solicitations that occurred after the Union campaign.65
65 I find the instant case distinguishable from U.S. Cosmetics Corp., 368 NLRB No. 21, slip op. at 1‒
JD–21–20
47
I find that the Respondent has not met its burden of showing that the timing of the improved
policies and working conditions was based on reasons other than the Union organizing efforts.
The announcement of the changes made by Respondent unlawfully interfered with the employees’
exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. Register Guard, 344 5
NLRB 1142 (2005). In addition, the implementation of the changes violated Section 8(a)(3) of
the Act. Thorgren Tool & Molding, Inc., 312 NLRB 628, 632 (1993).
c. The Respondent’s change in job position and wage increase for employee Nelson Langarita
and wage increase for employee Apolonia Rios (complaint para. 22 and 25)10
In addition to its significant changes to policy impacting all hourly employees, Respondent
also increased the terms and condition of work for several individual employees. Immediately
after Helfant’s solicitation of employee concerns and grievances on August 29, Apolonia Rios told
Helfant that she had been demoted in March 2017 and had her wage rate reduced by nearly $3 per 15
hour (from $16.45 to $13.70 an hour). After that conversation, Helfant told Rios he would look
into it for her and he instructed the human resources department to check into and reconsider Rio’s
demotion and wage reduction. Approximately 2 weeks later, without significant explanation,
Respondent in effect reversed its prior demotion of Rios and increased her wages to $15.40 per
hour and she was issued a lump-sum backpay check for the difference in pay from the time of her 20
demotion to that that time of reversal.
Around that same time, the Respondent issued an unexpected wage increase to known
Union supporter Nelson Langarita, which occurred shortly after Haberhehl held his meetings with
employees and where Langarita asked about benefits employees received at Respondent unionized 25
Virginia facility. With regard to Langarita’s wage increase, the record reveals that he approached
human resources with a request for more pay. The Respondent thereafter increased his pay from
$14.15 to $15.40 per hour (GC Exh. 21) and Respondent placed him in a new position.
The timing of Respondent’s decisions to grant these wage increases to two known union 30
supporters during the Union’s organizing drive, compels an inference of unlawful motive and that
it was done as an attempt to persuade those Union supporters to abandon their support for the
Union. In Rios’ case in particular, that inference is based not just on the suspect timing, but the
fact that Respondent’s decision to demote Rios appeared significant and well thought out, which
indicates that management believed her demotion was justified when it was issued. The burden 35
now shifts to the Respondent to show that the timing of its actions were unrelated to these
employees’ union support and organizing efforts.
2 (2019), where the Board dismissed an allegation that an employer unlawfully implemented a wage
increase because the General Counsel failed to meet his burden of proving that the employer changed the
timing of a wage increase for employees in response to evidence of union organizing shown through the
posting of a pro-union sign on July 9. Id. In that case, the Board relied on the fact that “the record
established that the [employer] had received the necessary authorization for the wage increase before July
9….” Id. In the instant case, the evidence establishes that the Respondent received authorization for
changes to the vacation and attendance policies from the corporate ownership and leadership, and then
implemented those changes, only after knowledge of the Union’s organizing campaign.
JD–21–20
48
With regard to Apolonia Rio’s situation, she held a “Lead” position, but in February 2017,
she was placed on a Performance Improvement Plan (PIP) for performance issues. On March 7,
2017, months prior to the Union’s organizing campaign, Rios was demoted for failing to comply
with her PIP. Van Noy, who was personally involved in Rios’ demotion, testified that the
Respondent was unhappy with her performance and her demotion was well thought out and not 5
issued lightly. Rios was demoted to a general labor position and her pay reduced from $16.45 to
$14.15 per hour. At that time, Rios told management that her demotion was unjust and demanded
an investigation, making a handwritten request to that effect on her Notice of Demotion. No
investigation of her claims was performed, however, prior to the Union’s organizing campaign.
10
After the Union drive commenced and Helfant held his meetings for the purpose of
listening to employee complaints and attempting to remedy them, Rios approached him and
explained her demotion and decrease in pay that she believed were unjust. Helfant told her that
he would look into it for her and instructed the human resources department to reconsider Rios’
demotion and investigate her complaint. Helfant told Van Noy that Rios was upset with her 15
demotion and reduction in pay, and he asked her if she could do anything about it. Shortly after
Helfant’s request, Rios was summoned to human resources and was told Helfant had directed a
reinvestigation into the circumstances of her demotion. Approximately 2 weeks after that, Rurka,
Van Noy, and Cochran met with Rios and told her she had been given a new position and an
increased wage rate. However, there was no change in her job duties and she performed the same 20
general laborer work. In addition to increasing her wages from $14.15 to $15.90 per hour,
Respondent issued her a lump sum payment for the difference between the wage rate she had prior
to her demotion in March and the increased rate she just received in September, which amounted
to around $1600 to $2000.
25
Even though Van Noy failed to articulate any basis for reversing Respondent’s well thought
out decision to demote Rio and instead issue her a wage increase and lump sum payment, she
nevertheless denied that it was done because Rios was a union supporter. Instead, Van Noy only
testified that she was directed by Helfant to look into the demotion that occurred approximately 6
months earlier, and Cochran told Rios that Helfant directed her to reinvestigate the circumstances 30
of her demotion without offering any explanation or articulating the basis for doing so. (Tr. 402‒
404.) As way of explanation, the Respondent asserted in its post-hearing brief that “[w]ith regard
to Ms. Rios, in her case a pay error had been made when she was demoted, and upon bringing [it]
to the attention of management, it was corrected.” (R. Br. p. 77.) That assertion has absolutely no
support in the record. Critically, the Respondent also failed to explain why Rios was never 35
provided an investigation of her assertion that her demotion was unfair when it occurred in March,
while, shortly after the Union campaign started, she was provided with a reinvestigation of the
circumstances of her demotion, without explanation. The Respondent’s witnesses’ denials that
Rios wage increase and lump sum payment were unrelated to her union support and activity are
simply not credible, plausible, or supported by the evidence. 40
In addition, while the Respondent presented evidence that other employees had been
granted ad hoc wage increases upon request in the past, those examples are distinguishable. The
examples cited concerned employees who were either downsized or transferred from other
departments that were closed, and in the instant case, Rios’ March 2017 demotion was for 45
performance issues after she had unsuccessfully completed a performance improvement plan.
Furthermore, the Respondent cited an example of a clerical employee who was pulled from her
JD–21–20
49
position and put into a production job. That clerical employee, however, did not have her pay
changed and the details of her move to production, other than it was believed to be production
based, was not reflected in the record.
Accordingly, the Respondent did not rebut the inference of unlawful motivation by 5
showing that the timing of its actions was unrelated to the Rios’ Union support and organizing
efforts. The Respondent’s implementation of these changes was therefore motivated by unlawful
reasons and they interfered with the employees’ exercise of their Section 7 rights, in violation of
Section 8(a)(3) and (1) of the Act. Montgomery Ward & Co., 288 NLRB 126 fn. 6 (1988), enf.
denied on other grounds 904 F.2d 1156 (7th Cir. 1990); Thorgren Tool & Molding, Inc., 312 NLRB 10
628, 632 (1993).
With regard to Respondent’s pay increase and new job position to Langarita, shortly after
Habermehl’s meeting, Langarita told human resources that he deserved more pay for his job and
that he was not being compensated for additional duties, such as data entry work in addition to his 15
machine operator work. Human resources investigated his claim and determined that he was, in
fact, performing the duties of a “packaging specialist” where he was entering information in the
computer and printing labels in order to keep the flow of product moving, which was a higher rated
position than his general laborer position. Upon looking into Langarita’s claim, Van Noy checked
with RTE Department Manager Urasinski who confirmed that Langarita was given work 20
responsibilities beyond his job classification. On that basis, on August 28 Langarita’s hourly
wages were increased from $14.15 to $15.40, and his job classification was changed to “packaging
specialist” to better suit the work he was performing. The adjustment in title to specialist and the
increase in pay for that position was not unusual, as it was a job position that existed in other
departments at the Holland facility.6625
I find that the Respondent presented a legitimate business reason and justification for
changing Langarita’s job position to packaging specialist and increasing his wages to the rate
applicable for that position. The Respondent rebutted the inference of unlawful motivation by
showing that the timing of its action was unrelated to the Langarita’s Union organizing efforts. 30
Thus, the Respondent did not violate the Act as alleged, and this complaint allegation will be
dismissed.67
CONCLUSIONS OF LAW
35
1. The Respondent, Boar’s Head Provisions Co., Inc., is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
66 The Respondent presented evidence that it already had two packaging specialists in other
departments.
67 As mentioned above, the Respondent filed a reply brief to the General Counsel’s post-hearing brief.
In that brief, the Respondent sets forth additional arguments, including its assertion that the General
Counsel’s withdrawal of additional complaint allegations after the close of trial “call[ed] into question not
only the other allegations, but also the credibility of the General Counsel’s own witnesses” and its assertion
that the General Counsel “mischaracterized the rule” pertaining to wearing pins and badges. The
Respondent’s arguments in its reply brief were considered and are found to lack merit.
JD–21–20
50
2. The United Food & Commercial Workers International Union (UFCW), AFL‒CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by: threatening employees with the loss of benefits (including a 7 minute donning and 5
doffing time allowance and bonuses); threatening that negotiations would start from zero to the
minimum if employees selected the Union as their collective-bargaining representative; unlawfully
interrogating employees about their union membership, activities and sympathies; soliciting
employee complaints and grievances, including by statement and inducement to use the suggestion
box, and promising to remedy them by increased benefits and improved terms and conditions of 10
employment if the employees do not select the Union as their bargaining representative; promising
employees that the vacation and attendance policy benefits would be changed and hand tools
purchased at no cost to employees if they did not select the Union as their bargaining
representative, and then granting those benefits to employees; conducting surveillance of
employees union or protected activities; maintaining an overly broad rule that denies employees 15
the right to wear unauthorized badges and pins on exterior garments; informing employees that the
Union would not be able to get them reinstated if Respondent terminates them or telling them that
they will end up in court, thereby informing them that it would be futile for them to select the
Union as their bargaining representative; and increasing wages for employees to induce them to
abandon support for the Union or any other labor organization.20
4. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by: increasing benefits for employee Apolonia Rios by raising her wages and
paying her retroactive backpay; and increasing benefits for employees by improving the attendance
and vacation policies and by providing hand tools at no cost to its maintenance employees. 25
5. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The Respondent has not otherwise violated the Act.30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 35
the policies of the Act.
The Respondent shall be ordered to revise or rescind the rule stating that “wearing
unauthorized badges, pins, or other items on helmet or exterior garments” was an example of
misconduct that is very serious and will result in progressive discipline (Class II Offenses, 2.9 of 40
the Employee Handbook). This is the standard remedy to assure that employees may engage in
protected activity without fear of being subjected to unlawful rules. See Hills & Dales General
Hospital, supra, slip op. at 2‒3; see also Guardsmark, LLC, 344 NLRB 809, 812 (2005), enfd. in
relevant part 475 F.3d 369 (D.C. Cir. 2007). As stated therein, the Respondent may comply with
the order of rescission by reprinting said rule without the unlawful language or, in order to save 45
the expense of reprinting the whole employee handbook manual, it may supply its employees with
handbook policy inserts stating that the unlawful rule has been rescinded or with lawfully worded
JD–21–20
51
policies on adhesive backing that will correct or cover the unlawful portion of the rule or the
unlawfully broad portion of the rule, until it republishes the employee handbook rules without the
unlawful provision. Any copies of the employee handbook that includes the unlawful rule must
include the inserts before being distributed to employees. Hills & Dales General Hospital, supra,
slip op. at 3; Guardsmark, LLC, supra at 812 fn. 8; See also Bettie Page Clothing, 359 NLRB 777, 5
778–779 (2013).68
In addition, in Danbury Ambulance Service, Inc., 369 NLRB No. 68, slip op. at 3‒4 (May
6, 2020), the Board announced and implemented a temporary change in its standard notice-posting
remedy to adapt to the ongoing Coronavirus pandemic.69 The standard notice-posting provision 10
requires respondents to post copies of the remedial notice within 14 days after the notice is served
on the respondent by the regional office. With so many businesses closed due to the pandemic,
however, this requirement has been modified as it is likely that many respondents may be unable
to comply with the standard 14-day posting deadline. Furthermore, the Board noted that even if
the notice could be posted in time, the whole point of the remedy will be defeated if employees (or 15
members in union-respondent cases) are not present to read the notice. Accordingly, for the time
being, the Board will omit from the notice-posting remedy the requirement that the notice be posted
“within 14 days after service by the Region.” Instead, it will provide that the notice must be posted
within 14 days after the facility involved in the proceedings reopens and a substantial complement
of employees have returned to work, and that it may not be posted until a substantial complement 20
of employees have returned. In addition, employers that customarily communicate with their
employees by electronic means may not be doing so while their businesses remain closed. Thus,
any pandemic-related delay in the physical posting of paper notices will also apply to electronic
distribution of the notice. The Board has held that these changes do not apply to respondents
whose facilities remain open and staffed by a substantial complement of employees despite the 25
pandemic. When conditions warrant, the Board will reinstate the standard language. Id., slip op.
at 3‒4.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:7030
68 The General Counsel seeks a special remedy of notice reading in this case. (GC Br. p. 41.) In
determining whether additional remedies are necessary to fully dissipate the coercive effect of unlawful
discharges and other unfair labor practices, the Board has broad discretion in fashioning a remedy to fit the
circumstances of each case. Casino San Pablo, 361 NLRB 1350, 1354 (2014); Excel Case Ready, 334
NLRB 4, 4‒5 (2001). I find that the unfair labor practices found in this case should be sufficiently remedied
by the Board’s traditional remedies, and that a special remedy of notice reading is not supported or
warranted by the record evidence.
69 The Board has broad discretionary authority under Sec. 10(c) of the Act to fashion remedies that
will best effectuate the policies of the Act, and remedial matters are traditionally within the Board’s
province and may be addressed sua sponte. Danbury Ambulance Service, supra, slip op. at 3, fn. 3; Indian
Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996).
70 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–21–20
52
ORDER
The Respondent, Boar’s Head Provisions Co., Inc., its officers, agents, successors, and 5
assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of benefits (including a 7 minute donning and doffing10
time allowance and bonuses) and that negotiations would start from zero to the minimum
if the employees select the Union as their collective-bargaining representative;
(b) Interrogating employees about their union membership, activities, and sympathies;
15
(c) Soliciting employee complaints and grievances (including by statement and
inducement to use the suggestion box) and promising to remedy them by actions, including
increased benefits and improved terms and condition of employment, if the employees do not
select the Union as their collective bargaining representative;
20
(d) Conducting surveillance of employees’ union or protected activities;
(e) Maintaining rules or policies that are overbroad by denying employees the right to wear
unauthorized badges and pins on exterior garments;
25
(f) Promising increased benefits and terms and conditions of employment and granting
increased employee benefits, including an increase in wages, increased vacation and attendance
benefits, and purchasing tools at no cost for maintenance employees, to induce them to abandon
support for the Union or any other labor organization;
30
(g) Informing employees that the Union would not be able to get them reinstated if
Respondent discharges them or telling them that they will end up in court, thereby informing them
that it would be futile for them to select the Union as their bargaining representative.
(h) In any like or related manner, interfering with, restraining, or coercing its employees 35
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, revise or rescind employee rule or policy 40
stating that “wearing unauthorized badges, pins, or other items on helmet or exterior garments” is
an example of misconduct that is very serious and will result in progressive discipline (Class II
Offenses, 2.9 of the Employee Handbook).
(b) Furnish all current employees with inserts for the current Employee Handbook that (1) 45
advise employees that the above-mentioned unlawful rule or policy has been rescinded, or (2)
provide employees with the language of the revised lawful rule or policy on adhesive backing that
JD–21–20
53
will cover the above-mentioned rule; or (3) publish and distribute to employees rules or policies
that do not contain the above-mentioned unlawful rule or policy, or which contain or provide the
language of the lawful rule or policy.
(c) Post at its Holland, Michigan facility copies of the attached notice marked 5
“Appendix.”71 The notices shall be posted in English and Spanish, and any other languages spoken
by employees at Respondent’s Holland, Michigan facility. Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are customarily posted. In 10
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. The Respondent shall take
reasonable steps to ensure that the notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or closed the facility involved in these 15
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 August
1, 2017.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn 20
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. May 14, 202025

Thomas M. Randazzo
U.S. Administrative Law Judge30
71 If the facility involved in these proceedings is open and staffed by a substantial complement of
employees, the notices must be posted within 14 days after service by the Region. If the facility involved
in these proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices
must be posted within 14 days after the facility reopens and a substantial complement of employees have
returned to work, and the notices may not be posted until a substantial complement of employees have
returned to work. Any delay in the physical posting of paper notices also applies to the electronic
distribution of the notice if the Respondent customarily communicates with its employees by electronic
means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
0,,k.‘
t(-4.,,e,r--
JD–21–20
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 a representative 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.
WE WILL NOT threaten you with the loss of benefits including the loss of “donning and doffing”
time and bonuses if you support or choose to be represented by the United Food and Commercial
Workers International Union (UFCW), AFL‒CIO (the Union) or any other union.
WE WILL NOT inform you that negotiations will begin from zero to the minimum if you select
the Union as your bargaining representative.
WE WILL NOT ask you what working conditions you would like to see changed or solicit your
grievances, and then offer to change those working conditions or promise to remedy your
grievances in order to discourage your union activity.
WE WILL NOT ask you whether you support the union or unlawfully interrogate you with regard
to your union activities, support, or sympathies.
WE WILL NOT inform you that the Union will not be able to get you reinstated if we discharge
you or that you will end up in court, thereby inferring or informing you that selecting the Union is
futile.
WE WILL NOT conduct surveillance of your union activities and support.
WE WILL NOT grant or increase benefits for you, including making changes to our vacation and
attendance policies or by providing hand tools to maintenance employees, in order to discourage
you from engaging in union and/or protected concerted activities or dissuade you from supporting
the Union.
WE WILL NOT increase benefits for you by raising your wages or paying you retroactive
backpay in order to discourage you from engaging in union and/or protected concerted activities.
WE WILL NOT maintain rules of policies that are overbroad by denying you the right to wear
unauthorized badges and pins on exterior garments.
JD–21–20
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL revise or rescind employee rules or policies that are overbroad by denying employees
the right to wear unauthorized badges and pins on exterior garments, such as the rule that states
“wearing unauthorized badges, pins, or other items on helmet or exterior garments” is an example
of misconduct that is very serious and will result in progressive discipline (Class II Offenses, 2.9
of the Employee Handbook); and WE WILL advise you in writing that we have done so and that
the unlawful rule or policy will no longer be enforced.
WE WILL furnish you with inserts for your current Employee Handbook that advise you that the
above-mentioned policy has been rescinded or provide you with language of a lawful policy on
adhesive backing that will cover the above-mentioned unlawful policy, or WE WILL publish and
distribute to you a revised Employee Handbook that does not contain the above-mentioned
unlawful rule or that provides the language of an lawful policy or rule.
BOAR’S HEAD PROVISIONS CO., 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.
Gerald R. Ford Building
110 Michigan St., NW, Room 299
Grand Rapids, MI 49503-2363
(616) 456- 2679
Hours: 8:15 a.m. to 4:45 p.m. ET
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-209874 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, (616) 456-2679.