IMAGE FIRST

National Labor Relations Board - Administrative Judge Opinions

Apr 18, 2017

22-CA-161563 (N.L.R.B. Apr. 18, 2017)

JD–25–17
Clifton, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
IMAGEFIRST
and Cases 22–CA–161563
22–CA–181197
LAUNDRY DISTRIBUTION AND FOOD SERVICE
JOINT BOARD, WORKERS UNITED, A/W
SERVICE EMPLOYEES INTERNATIONAL UNION
Eric B. Sposito, Esq., for the General Counsel.
Christopher J. Murphy and Michael K. Taylor, Esqs. (Morgan Lewis & Bockius LLP,
Philadelphia, Pennsylvania) for the Respondent.
Cristina Gallo, Esq.,(Kennedy, Jennix & Murray, P.C., New York, New York)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Newark, New
Jersey on October 18-21 and November 29-30, 2016. The Laundry Distribution and Food
Service Joint Board, Workers United, filed the initial charges in case 22-CA-161563 on October
5, 2015. Four amended charges were also filed. Case 22-CA-181197 has been withdrawn. The
General Counsel issued the complaint on May 31, 2016 and then an Order consolidating cases
and amended complaint on September 21, 2016.
Subsequent to September 21, the General Counsel withdrew the allegations in paragraphs
6, 13, 23, 31 and 32 of the amended complaint and references to those paragraphs contained in
paragraph 33 of the complaint.
This case involves an organizing drive by the Charging Party Union at Respondent’s
Clifton, New Jersey facility. Many of the allegations in the complaint concern statements made
or allegedly made by Respondent’s regional vice-president and general manager James Kennedy,
JD–25–17
2
and Respondent’s president and owner Jeffrey Berstein1 at meetings conducted for employees
during the early part of the organizing drive.2
The General Counsel also alleges that Respondent violated the Act in discharging a
supervisor and a lead person at the start of the organizing campaign in order to discourage 5
employees from supporting the Union. The General Counsel further alleges that Respondent
solicited grievances and impliedly promised to remedy those grievances and increased the
frequency and quality of food provided to employees after the beginning of the organizing drive
to discourage support for the Union. Finally, the General Counsel alleges Respondent, by
supervisor David Rivera, violated the Act by engaging in a confrontation with a union 10
representative outside the gate to Respondent’s facility and by maintaining an illegal rule in its
employee handbook.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following15
FINDINGS OF FACT
I. JURISDICTION
20
Respondent, a corporation, operates commercial laundries at a number of locations
throughout the United States. Its headquarters is located in King of Prussia, Pennsylvania. At
the facility at issue in this case in Clifton, New Jersey, it annually purchases and receives goods
valued in excess of $50,000 directly from points outside of New Jersey. Respondent admits, and
I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and 25
(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
30
The Union began an organizing drive at Respondent’s Clifton, New Jersey facility in
mid-July 2015. Respondent became aware of this on Sunday, July 12, when union
representatives visited the company’s service supervisor, Andre Cherry, at his home. Cherry
called company Vice President/General Manager James Kennedy that day to inform him of the
visit. Kennedy is the highest ranking official of Respondent who is present at Clifton on a daily 35
basis.
Allegedly illegal rule (complaint paragraphs 14 and 15)
Respondent maintains a rule in its employee handbook that makes the discussion of 40
payroll information a disciplinary matter, Tr. 478. The Board has held that an employer violates
Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the

1 Mr. Berstein’s name appears in the transcript incorrectly as Bernstein.
2 Complaint paragraph 28 alleges that Respondent’s Chief Financial Officer, Joseph Geraghty
violated the Act in August 2015 by creating the impression that employees’ union activities were under
surveillance. The General Counsel appears to have abandoned this allegation.
JD–25–17
3
exercise of their Section 7 rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). As stated
above, a rule is unlawful if it explicitly restricts activities protected by Section 7. If this is not
true a violation is established by a showing that 1) employees would reasonably construe the
language to prohibit Section 7 activity; and/or 2) that the rule was promulgated in response to
protected activity and/or 3) that the rule has been applied to restrict the exercise of Section 7 5
rights, Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
In undertaking this analysis, I consider the fact that in Lutheran Heritage the
Board retreated somewhat from its prior decisions in light of the decision of United States
Court of Appeals for District of Columbia in University Medical Center v. NLRB, 335 F. 10
3d 1079 (D.C. Cir. 2003). In that case the Court declined to enforce the Board’s decision
at 335 NLRB 1318 (2001) regarding a rule prohibiting “disrespectful conduct.” In
Lutheran Heritage, the Board stated that it would not conclude that a reasonable
employee would read a rule to apply to Section 7 activity simply because the rule could
be so interpreted.15
Respondent’s maintenance of its rule against the discussion of payroll information
violates Section 8(a)(1) regardless of why it was promulgated or whether it was ever
enforced or disseminated. On its face it prohibits the discussion of wages, hours and
benefits. There is no other “payroll information” to which a rank and file employee
would be privy. A reasonable employee would interpret it to warn against discussing 20
wages, hours and benefits, which they clearly have a right to do under Section 7 of the
Act, with other employees and with others from whom they wish to enlist support in
improving their working conditions.
James Kennedy’s alleged conversation with Miriam Farez on July 13, 2015 (complaint
paragraph 16)25
Former lead person Miriam Farez testified that General Manager/VP James
Kennedy called her into his office of July 13 and told her she was his eyes and ears at the
plant. She testified that Kennedy asked her to report back to her which employees were
in favor and which were opposed to the Union. Kennedy denies that any such meeting or
conversation took place. Given the fact there are no witnesses to this alleged 30
conversation and that Respondent fired Farez 2 days later, I find no reason to credit Farez
over Kennedy. This citation allegation is dismissed.
James Kennedy’s July 13, 2015 meeting (complaint paragraph 18)3
35
The next day, Kennedy held a meeting for all production employees4 at the end of the
first/beginning of the second shift. There is a great deal of conflicting testimony as to what
Kennedy said at this meeting. His remarks were translated into Spanish and into Creole for the

3 The complaint does not specifically mention Kennedy’s July 13 meeting with production employees
but I conclude that whether or not he violated the Act at that meeting was tried by consent.
4 Production employees are distinguished from customer advocates, who drive trucks delivering clean
laundry to customers and pick up dirty laundry.
JD–25–17
4
employees of Haitian background. It is undisputed that Kennedy told employees that he was
aware that the Union was visiting employees at home.5
The General Counsel alleges that Kennedy created the impression that the employees’
union activities were under surveillance. According to the General Counsel this is because 5
Kennedy did not tell employees how knew of the union’s home visits. Kennedy testified that he
told employees that employees had notified management about the home visits.
I decline to credit the employee witnesses’ testimony on this point and others regarding
the meetings conducted by Kennedy and Owner Berstein—unless otherwise specifically 10
credited.6 As Respondent points out in its brief, there is no common theme to this employee
testimony and much that is inconsistent and/or clearly erroneous. Carmen DeJesus, Nora
Palasio, Maria Alacote, Carmen Gonzalez and Claudia Ulloa testified through a Spanish
interpreter. The recollection of the various meetings with Kennedy and Berstein was also the
product of listening to someone translate Kennedy and Berstein’s remarks from English into 15
Spanish.
Dejesus testified that James Kennedy told employees they would be fired if they signed a
union authorization card. No other witness corroborated DeJesus’ testimony on this matter.
20
Several witnesses, Palasio, Alacote and Claudia Ulloa, testified that Luis Betancourt
translated for Kennedy at the July 13 meeting. This is clearly incorrect.
Alacote testified that Kennedy did not speak about home visits at the July 13 meeting.
She also testified that Kennedy told employees to bring management their signed union 25
authorization cards; no other witness so testified.
Exana Estellus and Marie Dorceliin testified through a Creole translator. Estellus
testified that Jeff Berstein told employees they would lose their one month vacation if they
selected union representation. No other witness so testified and I infer that Berstein’s remarks at 30
all the meetings he conducted on a particular day were virtually identical in content.
For these reasons I dismiss all complaint items alleging that James Kennedy created the
impression that employees’ union activities were under surveillance.
35
Jeffrey Berstein’s July 14 meetings and the terminations of Miriam Farez and Joe Ventura
(complaint paragraphs, 17, 21, 22, 25)
Respondent’s president and owner, Jeffrey Berstein, who is based in King of Prussia,
Pennsylvania, conducted 5 or 6 meetings with different groups of Clifton employees on July 14, 40
2015. When Spanish or Creole speaking employees were present, Berstein’s remarks were

5 I discredit Kennedy’s testimony at Tr. 536 that he did not know that Cherry’s visitors were union
representatives. Cherry’s emails to Kennedy on July 12 and the morning of July 13 make it quite clear
that he knew that Cherry’s visitors represented a union, R. Exh. – 7.
6 After July 13, many of the meeting were conducted in smaller groups and separated by the language
into which Kennedy and Berstein’s remarks were being translated.
JD–25–17
5
translated. Berstein mentioned that some employees were being visited by the Union. He
testified that he told employees that Kennedy had told him that Andre Cherry had informed
Kennedy about the Union’s visit to Cherry’s home. Berstein also testified that he told employees
that management had heard rumors that the Union had visited other employees, Tr. 678.
5
Berstein also asked employees if their bosses were treating them with respect. Some
employees then complained to Berstein about production supervisor Joe Ventura and lead person
Miriam Farez, Tr. 680-81. After the meeting Berstein instructed James Kennedy to terminate the
employment of Ventura and Farez. Kennedy terminated Farez the next day and Ventura on July
20. The company did not apply its progressive discipline policy in making these termination 10
decisions.
Employee complaints about Farez and Ventura were not new. Prior to his July 14
meeting with employees, Berstein was aware of written reports authored by human resource
representative Caitlin Payne which discussed employees’ complaints about both individuals, 15
G.C. Exhs. 9 and 10, Tr. 676-77. General Manager James Kennedy was aware of complaints
about Farez prior to April 1, 2015, Tr. 623-24.
Payne made three visits to the Clifton facility prior to Berstein’s July 14 meeting, April
13, May 27-29 and July 9, 2015. In her report of her May 2015 visit, G.C. Exh. 9, Payne 20
recorded that employees complained that Ventura had an aggressive approach to supervision and
yelled at them. 5 employees in the garment department complained that lead person Miriam
Farez was rude to them to the point that some did not want to come to work. They told Payne
they had complained about Farez to supervisor Luis Betancourt but Farez’s attitude had only
gotten worse. Payne shared the complaints about Farez with General Manager James Kennedy, 25
Tr. 623-24. Despite Kennedy’s denial, Tr. 630, I find that Payne also shared the complaints
about Ventura with Kennedy. It is highly unlikely that Payne reviewed the complaints about
Farez with Kennedy, but not those about Ventura, whose behavior was as much a focus in
Payne’s May report as was the behavior of Farez.
30
In a report of her July 9 visit, G.C. Exh. 10, Payne noted that there was a big focus on
Ventura’s supervisory approach at all the meetings she had with employees. Employees
characterized Ventura as very reactive and snappy. Employees complained that Ventura never
thanked them. Payne was aware that higher level management had talked to Ventura about his
supervisory style previously. No employees specifically complained to Payne about Farez 35
during her July visit.
Legal Analysis with regard to the terminations of Ventura and Farez
In NLRB v. Exchange Parts, 375 NLRB 405, 409 (1964), the Supreme Court held that 40
“the conferral of employee benefits while a representation election is pending, for the purpose of
inducing employees to vote against the union” interferes with employees’ protected right to
organize. The rule set out in Exchange Parts is also applicable to promises or conferral of
benefits during an organizational campaign but before a representation petition has been filed,
Curwood Inc., 339 NLRB 1137, 1147-48 (2003) enfd. in pertinent part 397 F. 3d 548, 553-54 45
(7th Cir. 2005); Network Dynamics Cabling, 351 NLRB 1423, 1424 (2007). The termination of
JD–25–17
6
an unpopular supervisor in order to grant a benefit to discourage union activity violates Section
8(a)(1), Burlington Times, 328 NLRB 750 (1999).
Respondent contends that all reported cases in which the Board has found the termination
of an unpopular supervisor to violate the Act are cases in which the termination occurred in the 5
critical period between the filing of a representation petition and the representation election.
Thus, Respondent argues that since the Charging Party Union had not filed a representation
petition before Farez and Ventura were terminated it did not violate Section 8(a)(1).
Regardless, the Board has made it clear that termination of an unpopular supervisor to 10
discourage union activity is a Section 8(a)(1) violation. It has never stated that the termination
must occur in the “critical period” in order to constitute a violation. In fact the Burlington Times
case establishes that is not the case. The Administrative Law Judge rejected the contention of
the General Counsel and Charging Party that the discharge of the Burlington’s supervisor could
not be relitigated in an unfair practice proceeding because it had been litigated in a prior hearing 15
on objections, 328 NLRB 750, 754 n. 15. The Board affirmed the Judge’s rulings, findings and
conclusions. It also found that the supervisor’s termination violated Section 8(a)(1) without
mentioning that he was terminated after a representation petition had been filed. Thus, as
discussed below, the law as applied to the facts of this case establishes that Respondent violated
Section 8(a)(1) by terminating Farez and Ventura.20
At page 21 of its brief, Respondent suggests that since the Union in this case has not filed
a representation petition, a finding that it violated the Act in terminating Ventura and Farez
would prevent it from terminating any unpopular supervisor during an organizing campaign.
That would not be the case if an employer terminated a supervisor for conduct during the 25
organizing campaign that was not motivated by its desire to discourage its employees from
organizing. In this case, the terminations of Farez and Ventura were not based on any conduct
occurring after Respondent became aware of the organizing campaign. Employee grievances
against Farez and Ventura predated the organizing campaign and Respondent was aware of those
grievances before the campaign started. It is noteworthy in this regard that while Caitlin Payne’s 30
May report discussed complaints against Farez, Payne’s July report did not mention Farez at all.
There is no evidence that Farez did anything between July 12 and July 14 to warrant her
termination.
Although motive is usually irrelevant in analyzing Section 8(a)(1) allegations, analysis 35
under Exchange Parts is motive based. I conclude that this record establishes that the
terminations of Ventura and Farez were motivated by the unlawful purpose to restrain, coerce
and/or interfere with union activity and thus violate Section 8(a)(1).
James Kennedy’s meeting on July 15 (complaint paragraph 18)40
James Kennedy met with employees again on July 15. He discussed the Union’s visits to employees’
homes. He testified that employees voluntarily shared information. The General Counsel’s testimony is
too unreliable to support a finding that Respondent, by Kennedy, violated the Act in any respect at this
meeting. The testimony of Marie Dorceliin, one of the General Counsel’s witnesses at Tr. 348-49 tends 45
to support Respondent’s denials. It is very unlikely that Kennedy told some employees they were free to
sign an authorization card and told others not to sign the cards or that they would be fired for doing so.
Thus, I dismiss complaint paragraph 18.
JD–25–17
7
James Kennedy’s meetings with employees on July 20
James Kennedy met with Creole speaking employees on the first shift at 10:45; Spanish
speaking first shift employees at noon; Creole speaking second shift employees at 3:45 and 5
Spanish speaking second shift employees at 5:00. Kennedy testified that he read from a prepared
text, R. Exh. 12, and that his remarks were translated for non-English speakers. Employee
attendance at these meetings was mandatory.
Kennedy announced that Miram Farez and Joe Ventura had been terminated. He then 10
told the employees that some employees had voluntarily shared with management the fact that
the Union had visited their homes and called them on their cellphones.
His knowledge about the cellphone calls emanated from Luis Betancourt. Since
Betancourt did not testify, the record is silent as to how he acquired this information, such as did 15
Betancourt solicit this information from employees. However, the General Counsel did not
present any evidence of interrogation or surveillance by Betancourt. Thus, I find no basis for
concluding that Kennedy gave employees the impression that their union activities were under
surveillance at the July 20 meeting.
20
Kennedy read verbatim from a document he prepared prior to the meeting, Tr. 549-555,
Exh. R-12. This document shows that Kennedy solicited employee grievances and promised to
remedy them. In addition to suggesting, (even with its significant redactions), that Ventura and
Farez were fired due to the complaints solicited by Berstein on July 14, Kennedy’s memo states
as follows:25
As always your feedback is much appreciated. After further review of the
feedback some significant changes have been made. I take full responsibility and share
with each of you that I should have made those changes sooner…
30
Please feel free to continue to voluntarily share any question that you may have
and as promised we will continue to provide answers.
Kennedy conducted similar meetings on July 22 and afterwards at which the Union was
discussed.35
Jeffrey Berstein meets with customer advocates on July 21.
Owner Berstein met with 13 customer advocates (i.e., drivers) on July 21. Among the
subjects discussed were some managers who were disliked and rumors that production associates 40
were unhappy about having to work on Sundays.
Jeffrey Berstein meets with employees on July 28, August 4 and 11.
Berstein met with employees in 5-6 meetings on July 28; he addressed them using a 45
Power Point Presentation, R. Exh. 18, which was translated into Spanish or Creole depending on
the composition of the attendees. Berstein discussed the Union’s home visits and their
JD–25–17
8
authorization cards. He told employees that the Union might, based on complaints made to the
NLRB, pressure, lie or even threaten them to sign authorization cards.
Berstein held similar meetings with employees on August 4 and 11 at which he again
spoke from a Power Point, R. Exh. 19 and 20. Berstein told employees on August 11 that since 5
the Union would not have a representative in the plant it would be unable to deal with
employees’ concerns in a timely fashion. He told employees that they would have to file a
grievance and then wait weeks or months in the hope that the grievance would be resolved in the
employee’s favor. This statement regarding a long delay in resolving grievances appears not to
violate the Act, Pyramid Management Group, 318 NLRB 607 n. 3 (1995).10
Owner Berstein has continued to meet with employees about the Union since August
2015.
Supervisor David Rivera’s confrontation with organizer Marcia Almanzar outside 15
Respondent’s gate on August 6, 2015 (complaint paragraph 29)
Respondent stipulated that David Rivera had a physical confrontation with a union
representative on August 6. It also stipulated that by this conduct Respondent coerced or
restrained employees in the exercise of their Section 7 rights, Tr. 7. In its post-hearing brief, 20
Respondent states that it does not contest the allegations contained in complaint paragraph 29.
The General Counsel introduced a video showing Rivera operating leaf blower inside
Respondent’s gate and then approaching union representative Marcia Almanzar who was
standing just outside the gate with other union representatives. Almanzar testified about the 25
incident; Rivera did not. Thus Almanzar’s account is uncontradicted and credited. Rivera
initiated the confrontation by calling Almanzar a whore and blowing debris on her. Almanzar
began filming Rivera with her cellphone. Rivera disparaged the Union. Almanzar called Rivera
a “boot licker.” Rivera then tried to pry Almanzar’s cellphone away from her. Rivera or another
company official called the local police, who arrived on the scene after Rivera went back inside 30
the plant.
Almanzar filed a criminal complaint against Rivera, who pled guilty. I do not credit the
testimony of the General Counsel’s witnesses as to the presence of employees when this assault
took place. However, Rivera’s assault of Almanzar violates the Act regardless of whether or not 35
employees witnessed it, McBride H.R. Construction. Company., 122 NLRB 1634,1635 (1959).
Respondent provides food to employees; General Counsel alleges that it increased the
frequency and quality of the food (complaint paragraphs 25 – 27)
40
It is clear from the record that both before and after July 12, Respondent provided food to
employees at the Clifton facility. The question now is whether the quality of the food and the
frequency with which food was provided was significantly augmented after the appearance of the
Union. The employees’ testimony is not particularly helpful in determining the facts regarding
these allegations. That testimony varies a great deal. However, Caitlin Payne’s reports of her 45
visits to the Clifton facility make clear that Respondent’s “Lunch with the Boss” program was
moribund during the months just prior to the start of the organizing campaign. From the
JD–25–17
9
testimony of James Kennedy and Caesar Sanchez, I conclude that the program was revived after
July 12, Tr. 511-12, 528-29.
The record also establishes that shortly after he was hired as an Assistant General
Manager, Caesar Sanchez took employees off site for lunch on 3 occasions (different employees 5
each time). Employees were asked to choose what they wanted to eat from a menu. On later
occasions, Sanchez had employees choose what they wanted to eat and had it delivered to the
plant. Respondent had not given employees such choices prior to the appearance of the Union.
I find that the change in quality and frequency of the food provided to employees after 10
the organizing campaign started as compared to the months before the campaign were significant
enough to constitute an illegal benefit motivated by a desire to discourage employees from
supporting the Union. Thus, I find that Respondent violated Section 8(a)(1) as alleged in
paragraphs 25-27, Caterpillar Logistics, Inc., 362 NLRB No. 49 (2005), slip op. 1, n. 4, enfd.
835 F. 3d 536 (6th Cir. 2016).15
Solicitation of employee complaints/offer of better working conditions by James Kennedy
and Jeffrey Berstein
Section 8(a)(1) prohibits employers from soliciting employee grievances in a manner that 20
interferes with, restrains or coerces employees in the exercise of Section 7 activities. Solicitation
of grievances is not unlawful but raises an inference that the employer is promising to remedy
the grievances. Additionally, an employer who has a past policy of soliciting employees’
grievances may continue such a practice during an organizing campaign. However, an employer
cannot rely on past practice to justify solicitation of grievances where the employer significantly 25
alters its past manner and methods of solicitation, American Red Cross Missouri-Illinois Blood
Services Region, 347 NLRB 347, 351 (2006); Carbonneau Industries, 228 NLRB 597, 598
(1977), Montgomery Ward & Co., 225 NLRB 112, 117-118 (1976).
First of all, on July 14, Jeffrey Berstein solicited employee’s grievances by asking 30
employees if they were being treated with respect. He already knew from Caitlin Payne’s
reports that he was likely to get complaints about Joseph Ventura and Miram Farez. Berstein not
only impliedly promised to remedy the employees’ grievances about Ventura and Farez, he did
so by firing them both.
35
R. Exh. 12, discussed at page 7, establishes that James Kennedy solicited grievances and
expressly promised to remedy them at his meeting with employees on July 20.
As set forth below, I find that Respondent repeatedly and materially altered its practice of
soliciting grievances, impliedly remedying them and remedying grievances after the union 40
organizing campaign began in other respects.
The General Counsel in paragraph 20 of the complaint alleges that Respondent by James
Kennedy offered employees better working conditions in order to discourage employee support
for the Union. Kennedy testified that he conducted about 10 “remarkable” meetings with 45
employees in September and October 2015, Tr. 578. At these meetings he routinely asked
employees, “If you could waive a magic wand and could change anything about your job or
JD–25–17
10
work environment, what would it be?”Tr. 578, R. Exh. 14. Respondent’s solutions to concerns
raised in these meetings were shared with employees at later meetings in September and
October. Thus, I find that Respondent not only regularly solicited employee grievances during
the campaign and impliedly promised to remedy these grievances, it did so.
5
In response to a leading question from his counsel, Kennedy testified that this has been
his business practice throughout his tenure with ImageFirst. There is no evidence to support this
contention other than the self-serving testimony of Kennedy and Berstein . Respondent did not
call any rank and file witnesses to establish that this solicitation was an established past practice.
In this regard, Andre Cherry testified about several rank and file employees who were suspicious 10
enough about the Union that they voluntarily told him about the home visits. Cherry shared this
information with James Kennedy. However, Respondent did not call any of these employees, or
any other rank and file employees to corroborate the testimony of Kennedy and Burstein that
their practice with regard to solicitation and remedying grievances did not significantly change
after the start of the union campaign. This omission leads me not to credit the testimony of 15
Kennedy and Berstein on this point, E-Z Mills, Inc., 101 NLRB 979, 987 (1952).
Counsel for Respondent inquired of witness Claudia Ulloa as to the company’s practice
of meeting with employees before the Union campaign. Ulloa, who had worked for Respondent
since 2012, testified that Respondent conducted meetings with employees in the morning, but 20
they were not like the meetings conducted since the arrival of the Union. This is consistent with
other evidence that Respondent’s supervisors conducted daily “huddles” with employees, G.C.
Exhs. 9 and 10, R. Exh. 11. Ulloa confirmed that managers asked how things were going and
what employees needed to do their jobs. Sometimes, according to Ulloa, employees received
what they asked for and sometimes they did not, Tr. 250-51. Unlike much other employee 25
testimony, there is no employee testimony inconsistent with Ulloa’s account of Respondent’s
pre-campaign meetings. Therefore, I credit her testimony.7
There is no credible evidence that indicates that employees were solicited by Kennedy
and/or Berstein prior to the union campaign in the manner that they were afterwards.30
On the other hand, the record establishes that after the beginning of the union campaign,
Respondent markedly increased the frequency of its meetings with employees and its “lunches
with the boss.” Caitlin Payne noted in her reports of April 13 and May 27, their neither was
taking place in the months prior to July 12, G.C. Exhs. 9 & 10, R. Exh. 11.35

7 Some of Ulloa’s testimony is not accurate. For example, she remembered that Luis Betancourt
translated at the July 13 meeting. However, that is not a reason to discredit her testimony regarding
Respondent’s meetings with employees prior to July 13. I would note that Respondent’s counsel spent
some time examining Ulloa as to whether she knew who was the owner of ImageFirst, but did not ask her
whether the owner (Berstein) or Kennedy made the same kind of grievance solicitations and implied
promises before the Union showed up that it did afterwards. The testimony of Exana Estellus, although
unreliable on many subjects, is probative as to the lack of credibility of Kennedy and Berstein’s assertions
that their solicitation of grievances after the union campaign was no different than it was before the
campaign. Respondent also asked Marie Dorceliin about Berstein’s visits to the Clifton facility prior the
union campaign, but did not ask her whether Berstein solicited employee grievances before the campaign,
Tr. 355-56.
JD–25–17
11
Kennedy testified that Respondent conducted “remarkable” meetings in the third quarter
of every year. Assuming this is so, there is no evidence as to what was discussed at these
meetings prior to 2015. For example, there is no evidence that Respondent solicited grievances
in the manner that it did in 2015.
5
James Kennedy authored an email, R. Exh. 13, which establishes the Respondent’s
supervisor Luis Betancourt solicited grievances Nadia DeJesus and promised to remedy them.
From the lack of any disapproval in Kennedy’s email, I infer that Betancourt was acting in
accordance with Respondent’s standard practice during the organizing campaign.
10
Conclusions of Law
Respondent, ImageFirst, violated Section 8(a)(1) of the Act in the following respects:
1. Discharging a supervisor and a lead person at the start of the organizing campaign in 15
order to discourage employees from supporting the Union.
2. Soliciting grievances and impliedly promising to remedy those grievances in a
manner different than it did prior to the start of the union campaign.
20
3. Increasing the frequency and quality of food provided to employees after the
beginning of the organizing drive to discourage support for the Union.
4. By supervisor David Rivera initiating confrontation with a union representative
outside the gate to Respondent’s facility25
5. Maintaining an illegal rule in its employee handbook.
REMEDY
30
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
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the 35
following recommended8
ORDER
The Respondent, ImageFirst, its officers, agents, successors, and assigns, shall40
1. Cease and desist from

8 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–25–17
12
(a) Discharging unpopular supervisors and lead persons in order to discourage
employees from supporting the Union.
(b) Soliciting grievances and impliedly promising to remedy those grievances in a
manner different than it did prior to the start of the union campaign.5
(c) Increasing the frequency and quality of food provided to discourage support for
the Union.
(d) Initiating confrontations with union representatives.10
(e) Maintaining an illegal rule in its employee handbook which provides for discipline
for discussing payroll information.
(f) In any like or related manner interfering with, restraining, or coercing employees 15
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind its handbook rule which provides for discipline for employees discussing 20
payroll information.
(b) Within 14 days after service by the Region, post at its Clifton, New Jersey facility
copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by
the Regional Director for Region 22 after being signed by the Respondent’s authorized 25
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
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps 30
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since July 14, 2015.35
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
40

9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–25–17
13
Dated, Washington, D.C., April 18, 2017
____________________
Arthur J. Amchan5
Administrative Law Judge
8
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge unpopular supervisors and lead persons in order to discourage
employees from supporting the Union.
WE WILL NOT solicit grievances and impliedly promise to remedy those grievances in a
manner different than we did prior to the start of the union campaign.
WE WILL NOT increasing the frequency and quality of food provided to you in order
discourage support for the Union.
WE WILL NOT initiate confrontations with union representatives.
WE WILL NOT maintain an illegal rule in our employee handbook which provides for discipline
for discussing payroll information.
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.
IMAGEFIRST
(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.
20 Washington Place, 5th Floor, Newark, NJ 07102-3110
(973) 645-2100, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-161563 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, (973) 645-3598.