Newburg Eggs, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 27, 2011

03-CA-027834 (N.L.R.B. Apr. 27, 2011)

JD–(ATL)–13–11
Woodridge, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
NEWBURG EGGS, INC.
and Cases 3-CA-27834
3-RC-11918
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL 342
Brie Kluytenaar and Alfred Norek, Esqs.,
for the Acting General Counsel.
Jay Jason and Aryeh Lazarus, Esqs.
(Tarshis, Catania, Liberth, Mahon &
Milligram, PLLC), for the Respondent.
Jonathan Friedman, Esq.,
for the Charging Party.
DECISION
Statement of the Case
ROBERT A. RINGLER, Administrative Law Judge. This case was tried in
Monticello, New York, on February 7, 2011. The charge in this proceeding was filed by
the United Food and Commercial Workers, Local 342 (the Union) on October 21, 2010.1
The charge resulted in the issuance of a series of complaints against Newburgh Eggs,
Inc. (the Respondent or the Company), which culminated in the second amended
complaint (the complaint) dated January 11, 2011. The Union also filed several
objections to the Company’s conduct at an election conducted by the National Labor
Relations Board (the Board) on July 29. The objections were based on the same
evidentiary record as the complaint and were, as a result, consolidated to be heard
simultaneously with the complaint.

1 All dates are in 2010, unless otherwise stated.
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The complaint alleges that the Company violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by, inter alia: soliciting and remedying grievances from
employees before the July 29 election; telling employees that selecting the Union as
their representative would be a futile act; granting employees benefits prior to the
election; and implying to employees that they would be granted future benefits, if they
voted against unionization.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the brief filed by the counsel for the Acting General Counsel,2 I
make the following
Findings of Fact
I. Jurisdiction
The Company, a corporation, operates an egg processing plant at its Woodridge,
New York plant. Annually, in conducting its operations, it purchases and receives at its
Woodridge plant goods and services valued in excess of $50,000 directly from points
located outside of New York State. Therefore, the Company admits and I find that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. It also admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Company distributes whole eggs and liquefied egg products from its
Woodridge plant. Its workforce is predominantly comprised of Spanish-speaking
employees, who are not fluent in English. It is run by Moses Goldstein, president and
chief executive officer. Joel Halpert serves as the plant manager. Grace Patricia
Finley, who is bilingual in Spanish and English, is the human resources manager.3
On August 18, 2009, the Union filed a petition with the Board seeking to
represent the Company’s production and maintenance employees at its Woodridge
plant. (GC Exhs. 2-3.) On October 1, 2009, the Board held an election, which the
Union lost.4 (GC Exh. 4.) Thereafter, the Union filed objections to the Company’s
preelection conduct, which the parties settled by entering into a Stipulation for a Rerun
Election. (GC Exhs. 5-6.) A rerun election was then conducted on July 29, which the
Union also lost.5 (GC Exh. 8.) Following this defeat, the Union filed objections to the
July 29 election, which are at issue herein.

2 The Union and the Company failed to submit posthearing briefs.
3 The Company stipulated that Finley was an agent within the meaning of Sec. 2(13) of the Act.
4 The tally resulted in 43 employees voting for, and 80 voting against, unionization.
5 The tally resulted in 41 employees voting for, and 77 voting against, unionization.
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The complaint and objections are based upon a series of captive-audience
meetings held at the plant shortly before the July 29 election. These meetings occurred
on July 15, 22, 25, and 27. Goldstein, Halpert, Finley, and labor relations consultant
Michael Rosado spoke at these meetings.
B. July 15 Meeting
Reina Campos-Saravia, who has worked for the Company for 5 years, testified
via an interpreter that she and 25 coworkers attended the July 15 meeting. She related
that Halpert primarily spoke and his comments were translated into Spanish by Finley.6
She recalled Halpert asking employees to share their work-related problems and
offering his help. She stated that she responded by asking him to not transfer her from
her current work area. She recounted Indiana Blandon, a coworker, asking him to train
her to work in the “breakers” area of the plant,7 and repair her assigned machine.8 She
recollected Nuvia Cisneros-Camacho requesting him to repair her workstation.9 She
stated that, within days, the Company fulfilled all of their requests. She added that,
before July, the Company had never asked employees to share their workplace issues.
Indiana Blandon, who has worked for the Company since May 2008, testified via
a translator that she attended the July 15 meeting. She recalled Halpert stating:
If employees had any problems, we could tell him because [Finley] was
there . . . to help us.
She confirmed that the Company responded to her concerns by promptly repairing her
machine and training her to work in the “breakers” area.10 She stated that she
previously asked the Company to repair her machine and was ignored.
I found Campos-Saravia and Blandon credible; they were consistent, reliable,
and candid. I will also draw an adverse inference from the Company’s unexplained
failure to rebut their testimonies. See Douglas Aircraft Co., 308 NLRB 1217 (1992)
(failure to call a witness “who may reasonably be assumed to be favorably disposed to
the party, [supports] an adverse inference . . . regarding any factual question on which
the witness is likely to have knowledge”).
C. July 22 Meeting
The transcript of the July 22 meeting provided:11

6 Goldstein was present, but, did not address the employees.
7 In the “breakers” area, eggs are broken and liquid contents are collected.
8 She asked him to solder certain metal ductwork, which was emitting hot chlorine gas.
9 This repair involved the removal of a piece of metal.
10 She was interested in the “breakers” area because it involved sedentary work.
11 The transcript is an English translation of a meeting, where Finley and Rosado spoke to employees in
Spanish.
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ROSADO: . . . . [Y]ou are going to be negotiating a contract. . . . this
takes a long time. . . . A strike can occur. . . . if you do not
accept the offer of the company. . . . You have the right to
go out on strike but the company also has the right to
continue its operation. . . . and . . . you can be permanently
replaced. . . .
No outside organization can . . . impact . . . the operation . . .
if I am the owner of this operation, and an organization
comes in, my only obligation is to try and reach an
agreement but if I want to make changes . . . in my
operation, change departments, to revoke to another . . .
state, to another city, change different things in the schedule,
they are . . . changes in production, in operation—they are
the company's. No organization has the right to change this
or tell the company they have to change this or do that. . . .
FINLEY: [N]o one says how to manage the company, it is always the
owner. He will be the only person that says . . . it's good for
the company and good for the employees or not. If
[Goldstein] decides that it's not good for the company or that
the company is losing money, then he will be the only one
who has the final say. . . .
ROSADO: Don't forget that negotiating is asking for something. It is all
asking, so this is coming here and asking the company and
the company always has the right to say yes or no. . . .
(GC Exh. 10 (grammar as in original).)
D. July 25 Meeting
The transcript of the July 25 meeting provided:12
FINLEY: . . . . [I]f the union does come, . . . things can improve, . . .
get worse, or . . . remain the same. . . . Let's say . . .the
union . . . get[s] a ten cent raise for the employees. In 40
hours, that's $4.00 a week. In four weeks, you would earn a
$16.00 increase. If you have to pay . . . union [dues],
assuming you pay . . . $30.00, you are losing $14.00. Now
. . . where is the benefit in that? . . . .
The other thing is the union security clause. . . . [T]he people
who disagree with the union are going to be forced to enroll

12 The transcript is an English translation of a meeting, where Finley spoke to employees in Spanish. Finley
also translated Halpert’s comments into Spanish.
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in the union. This means they will be forced to pay dues. . . .
HALPERT: . . . . We know our mistakes. We are correcting our
mistakes. We [were] . . . having a problem . . .
communicating with the people because of our language.
Now we correct this, [Finley’s] . . . so close . . . to the people
now. . . .
(GC Exh. 11 (grammar as in original).)
E. July 27 Meeting
In order to provide background information for the July 27 meeting, Campos-
Saravia explained that, after the first election, she was summoned to a meeting on
October 4, 2009. She related that the meeting occurred on the shop floor and was
attended by 60 workers. She recalled Halpert distributing bonus checks to employees
worth 8 hours of pay and congratulating them for their support in the election.13 She
added that, on October 27, 2009, she was called to another meeting with 150
coworkers, where workers received 11 paid leave days and $100 bonuses. She related
that the Company never previously offered paid leave or bonuses.
The transcript of the July 27 meeting provided:14
GOLDSTEIN: The first thing . . . [is that] we're not threatening anybody and
we're not offering anything and everybody has the right to
vote whichever way they want. I'm just here to give . . . my
honest advice. . . . [and] thank . . . all the people . . . on the
last vote . . . for the support and the trust . . . I couldn't say
what [I’d] . . . give you [last time] but I said, I promise you're
going to get something and I kept my promise. . . . And I
hope that this time even though I'm not offering anything
because I gave . . . whatever the company could do, I still
hope . . . the people that voted last time no, they're going to
vote this time also no . . . .
In January, . . . I was almost losing the company and I had to
put [in] a lot of money [and] . . . borrow from the banks . . . to
save the company. . . . [T]he benefits that we gave . . . is the
best that I can do . . . . Now I would like to talk . . . to the
people that voted yes . . . I'm sure a big part . . . voted yes
. . . because they didn't trust me that I'm going to give them
something. Now that I've proved myself, that I did give

13 She received a $57 check.
14 The transcript is an English translation of a meeting, where Finley spoke to employees in Spanish. Finley
also served as Goldstein’s translator.
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benefits, like we said the holidays and personal days and the
bonus and the raises, I'm sure that they're going to . . . vote
no. I can't believe that the people . . . believe that an outside
person could help them more than I can help. . . . And the
difference is that when I help, it doesn't cost you anything, if
they . . . help you, they charge you. . . .
I also think . . . one of the reasons . . . why some . . . people
voted yes last time and . . . have some complaints . . . is
because we never had good communication. . . . I hired
Patty [Finley] . . . so she has time to talk to all the people and
. . . understands your language . . . and . . . can help
everybody with whatever they need. And that's . . . a cost,
it's going to cost me but it's not going to cost you. . . .
[G]ive me one more chance . . . everybody should vote no,
to make sure they don't come again. . . .
FINLEY: . . . . Communication . . . has been very bad. You have been
right . . . but now the communication is direct. I understand
you. . . .
(GC Exh. 12 (grammar as in original).)
III. Analysis
A. Solicitation of Grievances
The Company violated Section 8(a)(1) when Halpert solicited and remedied
grievances on July 15,15 and informed employees that it had hired Finley, who is
bilingual, to remedy their grievances on July 25.16 In Reliance Electric Co., 191 NLRB
44, 46 (1971), the Board held that an employer violates Section 8(a)(1) under the
following circumstances:
Where, . . . an employer, who has not previously had a practice of
soliciting employee grievances or complaints, adopts such a course when
unions engage in organizational campaigns . . . there is a compelling
inference that [it] is implicitly promising to correct those inequities . . .
discover[ed] . . . and likewise urging . . . employees that the combined
program of inquiry and correction will make union representation
unnecessary.
See also Laboratory Corp. of America Holdings, 333 NLRB 284, 284-285 (2001).

15 This allegation is listed in par. VI(a) of the complaint.
16 This allegation is listed in par. VI(b) of the complaint.
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On July 15, Halpert asked employees to allow him to remedy their problems.
They responded by making various training, repair, and other requests, which were
promptly remedied. On July 25, Halpert informed employees that Finley was hired to
provide ongoing help with their grievances. Given that there is no evidence that the
Company had a prior practice of soliciting and remedying employee grievances,
Halpert’s solicitation of grievances, followup remedial action, and statements regarding
Finley were unlawful.
B. Futility of Bargaining
The Company violated Section 8(a)(1), when Rosado and Finley implied to
employees at the July 22 meeting that it would be futile for them to select the Union as
their collective-bargaining representative.17 The Board has held that, barring outright
threats to refuse to bargain in good faith with an incoming union, the legality of any
particular statement depends upon its context. See, e.g., Somerset Welding & Steel,
Inc., 314 NLRB 829, 832 (1994). Statements made in a coercive context are unlawful
because they, "leave employees with the impression that what they may ultimately
receive depends upon what the union can induce the employer to restore." Earthgrains
Co., 336 NLRB 1119, 1119-1120 (2001); see, e.g., Smithfield Foods, 347 NLRB 1225,
1230 (2006) (statement from highest official that company was in complete control of
future negotiations was unlawful); Aqua Cool, 332 NLRB 95, 95 (2000) (statement that
employees were unlikely to win anything more at the bargaining table than other
employees unlawfully implied that unionizing would be futile).
On July 22, Rosado told employees:
[I]f I am the owner of this operation, and an organization comes in, my
only obligation is to try and reach an agreement but if I want to make
changes here, in my operation . . . change different things in the schedule,
they are . . . changes in production, in operation . . . they are the
company's. No organization has the right to change this or tell the
company they have to change this or do that. . . .
(GC Exh 10. ) At the same meeting, Finley added:
[N]o one says how to manage the company, it is always the owner. He
will be the only person that says well, it's good for the company and good
for the employees or not. If [Goldstein] decides that it's not good for the
company or that the company is losing money, then he will be the only
one who has the final say. . . .
Id. I find that these comments, when taken as a whole, reasonably left employees with
the impression that collective bargaining would become an exercise in futility because

17 These allegations are listed in pars. VIII and IX of the complaint.
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the Company was in sole control over negotiations. Or put another way, these
comments conveyed to employees that they would solely obtain in bargaining what the
Company unilaterally chose to bestow. I find, therefore, that such comments were
unlawful.
C. Granting of Benefits
The Company violated Section 8(a)(1) when, on July 27, Goldstein told
employees that he was giving them a valuable Company-paid benefit by hiring Finley,
who would communicate with them in Spanish and help them address and remedy their
grievances.18 An allegation that an employer has unlawfully granted benefits in
response to union organizational activity is analyzed under NLRB v. Exchange Parts,
375 U.S. 405 (1964). In NLRB v. Exchange Parts, the Supreme Court held that, “the
conferral of employee benefits while a representation election is pending, for the
purpose of inducing employees to vote against the union,” interferes with their protected
right to organize.19 Moreover, “[a]lthough 8(a)(1) allegations are typically analyzed
under an objective standard, and motive is irrelevant, see American Freightways Co.,
124 NLRB 146, 147 (1959), the 8(a)(1) analysis under Exchange Parts is motive-
based.” Network Dynamics Cabling, 351 NLRB 1423, 1424 (2007), citing Hampton Inn
NY-JFK Airport, 348 NLRB 16, 18 fn. 6 (2006). In other words, the motive for the
conferral of benefits during an organizational campaign must be designed to interfere
with union organizing. Id. Under settled Board precedent, “[a]bsent a showing of a
legitimate business reason for the timing of a grant of benefits during an organizing
campaign, the Board will infer improper motive and interference with employee rights
under the Act.” Yale New Haven Hospital, 309 NLRB 363, 366 (1992); see also
Kanawha Stone Co., 334 NLRB 235 fn. 2 (2001).
I find that the Company hired Finley, in order to interfere with the Union’s
campaign. First, the timing of her hiring was suspicious, inasmuch as she was hired
shortly before the July 29 election. Second, the Company understood that her hiring
would be perceived by its mostly Spanish-speaking workforce as a substantial benefit,
which would enhance their ability to communicate with their employer and undercut their
need for a Union representative. Goldstein openly admitted this understanding, when
he stated:
[O]ne of the reasons . . . why some . . . people voted yes last time and . . .
have some complaints . . . is because we never had good communication
. . . . For that reason, I would like to announce . . .that's why I hired Patty
[Finley], especially for human resources so she has time to talk to all the
people and she understands your language … can help everybody with
whatever they need.

18 This allegation is listed in par. VII(a) of the complaint.
19 See also Mercy Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002) (“an employer cannot time the
announcement of the benefit in order to discourage union support, and the Board may separately scrutinize
the timing of the benefit announcement to determine its lawfulness”).
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(GC Exh 12.) Lastly, the Company, which did not call any witnesses or present any
evidence, failed to demonstrate that it had a legitimate business reason that was
unconnected to the Union’s organizational campaign, or otherwise explain the
suspicious timing of Finley’s hiring. As a result, I find that her hiring was unlawfully
timed to interfere with the Union’s campaign.
D. Implied Promise of Future Benefits
The Company violated Section 8(a)(1) of the Act, when Goldstein impliedly
promised employees future benefits on July 27.20 The Board has held that, when an
employer solely asks for an opportunity to prove itself, without suggesting that benefits
would be forthcoming following the election, such commentary is lawful. See Noah's
New York Bagels, 324 NLRB 266, 267 (1997), citing National Micronetics, 277 NLRB
993 (1985). However, employer requests for the chance to prove itself, which are
accompanied by express or implied promises of benefits, are unlawful. See, e.g., Reno
Hilton Resorts Corp., 319 NLRB 1154, 1156 (1995) (preelection plea to “give me a
chance and I’ll deliver” is unlawful); Sunset Coffee & Macadamia Nut Co-Op of Kona,
225 NLRB 1021, 1021 (1976) (announcement that there would be “good news” after
election is unlawful).
I find that Goldstein implicitly promised employees that the Company would grant
benefits after the July 29 election. On July 27, he stressed that he kept his earlier
promise to grant benefits after the first election. He added that he could not “believe
that the people . . . believe that an outside person could help them more than [he] can.”
(GC Exh. 12.) He also implored employees to give him “one more chance.” These
comments collectively implied that additional benefits might follow after the election, as
long as employees allowed Goldstein to continue to “help” them, instead of the Union. If
Goldstein did not intend to imply such a message, he would not have cited his earlier
largesse, petitioned for another chance or promised ongoing “help” after the election.21
Therefore, I find that employees could have reasonably interpreted the above-described
array of comments to mean that, if they trusted the Company and voted “no,” they would
receive unspecified rewards.22 I find, as a result, that Goldstein’s comments were
unlawful.
IV. The Representation Case
A. Objections
On August 4, the Union filed 26 objections to the Company’s conduct during the
critical period, i.e., the period between the initial election on October 1, 2009, and the

20 This allegation is listed in par. VII(b) of the complaint.
21 A pledge of ongoing “help” is sufficiently comparable to a promise of “good news.” See Sunset Coffee,
supra.
22 I also find that Goldstein’s introductory comment that he is not presently offering workers anything was
rendered almost meaningless by his later discussion of his prior grant of benefits, plea for another chance
and offer of ongoing help.
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rerun election on July 29. (GC Exh 1(h)); Star Kist Caribe, Inc., 325 NLRB 304 (1998)
(second critical period runs from first election to second). Many of these objections
duplicate the complaint allegations, which I have already analyzed and found unlawful.
At the hearing, the Union withdrew several objections,23 and provided oral
argument concerning its rationale for the remaining objections. Although the Company
was invited to respond to these objections, it failed to present any witnesses,24 offer oral
argument or submit a post-hearing brief.
1. Objection 1
Objection 1 alleged that, during the critical period, the Company implied that, “it
was futile for [employees] . . . to vote for the Union.” The Union asserted that this
objection was based upon comments made at the July 22 meeting, which I have found
unlawful. I find, therefore, that this objection is valid.
2. Objections 2 and 12
Objection 2 alleged that, during the critical period, the Company, “portray[ed] the
selection of the Union . . . as an economic hazard which would result in the loss of jobs.”
Objection 12 stated that the Company “threatened retaliation for union support.” The
Union explained that these objections were based upon Rosado’s discussion of strikes
and permanent replacement on July 22.
Rosado lawfully explained to employees that economic strikes and permanent
replacement were possibilities. See Novi American, 309 NLRB 544 (1992) (comments
about possible strike not coercive); Eagle Comtronics, Inc., 263 NLRB 515, 516 (1982)
(statements about economic strikers being potentially replaced not coercive). As a
result, I find that these objections lack merit.
3. Objection 3
Objection 3 three alleged that, within 24 hours of the election, the Company held
a captive-audience meeting and told employees to vote “no.” I find that this objection
lacks merit, inasmuch as there is no evidence that the Company held a meeting within

23 The union withdrew Objections 4, 5, 8, 10, 13, 16, 18, 19, 21, 24, and 25.
24 At the start of the hearing, the Company’s attorney announced, “[W]e don’t intend to call any witnesses.” Tr.
21. After Campos-Saravia was cross-examined and released, the Company’s attorney belatedly realized
that he neglected to request her Jencks statement. Upon recognizing his oversight, he requested her
Jencks statement and accused counsel for the Acting General Counsel of misrepresenting the statement’s
existence, which opposing counsel vehemently denied. Tr. 64-67. Following a ruling that the request for the
statement was untimely (see, e.g., Walsh Lumpkin Wholesale Drug Co., 129 NLRB 294, 296 (1960);
Earthgrains Co., 336 NLRB 1119, 1122 (2001); SBC California, 344 NLRB 243, 243 fn. 3 (2005)), and that
the misrepresentation claim was implausible, the Company’s attorney sought to recall Campos-Saravia as
his own witness. In responding to a request for an offer of proof regarding her testimony, he responded, “I
would be calling [Campos-Saravia] solely to question her about what’s in the affidavit.” Tr. 68-69. His
request to recall this witness was, as a result, rejected as an attempt to evade the earlier Jencks ruling. He
later rested, without seeking to call any additional witnesses.
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24 hours of the July 29 election.25
4. Objections 6 and 7
Objections 6 and 7 alleged that, during the critical period, the Company solicited
and adjusted grievances. The Union averred that this objection was based upon the
July 15 meeting and connected events, which I have found unlawful. Accordingly, I find
merit to these objections.
5. Objection 9
Objection 9 alleged that, within 24 hours of the election, the Company allowed
certain employees to conduct pro-Company electioneering and polling. The Union
failed to provide evidence supporting this objection; thus, I find that it lacks merit.
6. Objection 11
Objection 11 alleged that, during the critical period, the Company distributed
leaflets and played videos, which implied that employees’ job security “would be
jeopardized if they supported the Union.” The Union alleged that this objection was
based upon the Company’s distribution of leaflets and video presentation on July 22.
The Union, however, failed to adduce witness testimony or other evidence concerning
these matters. Moreover, the transcript of the July 22 meeting solely cited a video
presentation, but, failed to describe its contents. This objection, therefore, lacks merit.
7. Objection 14
Objection 14 alleged that, during the critical period, the Company granted
employees benefits, in order to persuade them to vote against unionization. The Union
explained that this objection was based upon the July 25 and 27 statements regarding
Finley’s hiring, which I have found to be unlawful. I, thus, find merit to this objection.
8. Objection 15
Objection 15 alleged that, during the critical period, the Company implied that
employees would receive certain unspecified benefits after the election, if they voted
against unionization. The Union asserted that this objection was based upon
Goldstein’s July 27 comments, which I have found unlawful. I will, as a result, sustain
this objection.
9. Objection 17
Objection 17 alleged that, during the critical period, the Company, “conducted

25 Cf. Peerless Plywood Co., 107 NLRB 427 (1953) (speeches to massed assemblies within 24-hours of an
election are unlawful).
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captive audience speeches on worktime . . . [and] made improper anti-union
representations and provided employees with ‘benefits’ not previously received.” The
Union asserted, without providing greater specificity, that this objection was based upon
the July 15, 22, 25, and 27 meetings. Given that I have found that certain comments
made at these meetings were unlawful, I find that this objection, although superfluous, is
valid.
10. Objection 20
Objection 20 alleged that the Company granted monetary and leave benefits to
employees, who voted against unionization. It is undisputed that the Company provided
such benefits after the first election and that the Union previously filed objections
concerning this issue. (GC Exh. 5 (Objections 18-19).) On March 17, however, the
Company and the Union entered into a Stipulation for a Rerun Election, which settled
the objections, set a rerun election and waived the Union’s right to re-file identical
objections following the rerun election:
The parties agree that the conduct alleged in the Petitioner’s objections
filed on October 8, shall not constitute a basis for objections to set aside
the rerun election engendered by this Stipulation, and the parties waive
their right to file objections based upon such alleged conduct.
(GC Exh. 6, par. 7 (emphasis added).)
The Union failed to adduce any evidence that the Company provided monetary
and leave benefits after October 2009, or in a manner beyond that previously alleged in
its earlier objections. I find, therefore, that this objection is simply a reiteration of prior
objections that were settled and waived. Accordingly, this objection lacks merit.
11. Objection 22
Objection 22 alleged that, during the critical period, the Company told employees
that, “they would suffer from an adverse change in working conditions,” if they
unionized. The Union asserted that this objection was based upon two matters: (1) the
July 22 strike and permanent replacement comments; and (2) the July 25 statements
that employees might receive a net decrease in wages, if they failed to secure a
negotiated raise that offset their new Union dues. As discussed under Objections 2 and
12, the strike and permanent replacement comments were lawful. The Union dues
comments, which occurred 4 days before the election, were also lawful. These
comments, which were solely campaign propaganda, were verifiable. See
York Furniture Corp., 170 N.L.R.B. 1487 (1968) (dues-related comments occurring 4
days before an election did not invalidate the election, where such comments were
campaign propaganda that could be independently verified); Kalin Construction Co.,
321 NLRB 649, 652 (1996). Accordingly, I find that this objection lacks merit.
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12. Objection 23
Objection 23 alleged that, during the critical period, the Company advised
employees during a captive audience meeting that the Union would cause the plant to
close or relocate. The Union contended that Rosado, unlawfully threatened employees
with plant closure on July 22, when he stated that if the Company “want[ed] to. . .
revoke26 to another . . . state, to another city, . . . they are the company's [decisions].”
(GC Exh. 10.) The Board has held, while an employer is free to make predictions
regarding the foreseeable economic consequences of unionization, a plant relocation
prediction must be carefully phrased on the basis of objective facts, in order to avoid
implying that the prediction is a threat of retaliation rather than objective and reasonable
opinion. Eldorado Tool, 325 NLRB 222, 222-23 (1997).
I find that Rosado’s statement was a veiled threat that the Company might
relocate, if it unionized. Rosado failed to support his prediction with objective facts. He
also failed to explain that relocation was not being entertained, and that he was solely
raising relocation in order illustrate the difference between mandatory and non-
mandatory bargaining subjects. I find, as a result, that this objection is valid.
13. Objection 26
Objection 26, a catchall objection, generally alleges that the Company “interfered
with . . . [employees’] ability to exercise their free . . . choice in the election.” Given that
I have already found that several objections are valid, I find that this objection, although
duplicative, is legitimate.
B. Conclusion
In sum, I find that Objections 1, 6, 7, 14, 15, 17, 23, and 26 are valid, and that the
conduct underlying these objections, much of which violated Section 8(a)(1), prevented
employees from exercising a free choice during the July 29 election. Accordingly, I
recommend that the election be invalidated. See General Shoe Corp., 77 NLRB 124
(1948) (conduct during the critical period that precludes free choice warrants
invalidating an election).27 Moreover, the Board has traditionally held that 8(a)(1)
violations serve as a basis for invalidating an election. See, e.g., IRIS U.S.A., Inc., 336
NLRB 1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28 (1988); Playskool
Mfg. Co., 140 NLRB 1417 (1963).

26 “Revoke” means, “to annul by recalling or taking back.” See http://www.merriam-webster.com/dictionary/revoke. I
find that Rosado’s usage of “revoke” in the phrase, “revoke [the company] to another . . . state,” awkwardly
communicated plant relocation.
27 “In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be
conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the
employees.” General Shoe Corp., supra, 77 NLRB at 127.
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Even though the Union lost the first two elections by substantial margins, I
nevertheless recommend that the results of the second election be set aside and a new
election be held. The unfair labor practices (the ULPs) and other objectionable conduct
committed by the Company were serious and created an atmosphere, which made the
exercise of free choice improbable. In addition, if a third election were not held, the
Company would, ironically, be the beneficiary of its ongoing pattern of illegal conduct.
Employees, as a result, should be afforded an opportunity to exercise their protected
right to vote in an untainted election.
Conclusions of Law
1. The Company is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Company violated Section 8(a)(1) of the Act by:
(a) Soliciting, remedying, and impliedly promising to remedy
grievances, in order to discourage employees from selecting the Union as their
collective-bargaining representative.
(b) Expressing to employees that it would be futile for them to select
the Union as their collective-bargaining representative.
(c) Granting employees benefits, in order to discourage them from
selecting the Union as their collective-bargaining representative.
(d) Impliedly promising employees unspecified benefits, in order to
discourage them from selecting the Union as their collective-bargaining representative.
4. The unfair labor practices set forth above affect commerce within the
meaning of Section 2(6) and (7) of the Act.
5. By the foregoing violations of the Act, which occurred during the critical
period before the second election, and by the conduct cited by the Union in Objections
1, 6, 7, 14, 15, 17, 23, and 26, the Company has prevented the holding of a fair election,
and such conduct warrants setting aside the election conducted on July 29, 2010, in
Case 3-RC-11918.
Remedy
Having found that the Company has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
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The Company is ordered to distribute appropriate remedial notices electronically
via email, intranet, internet, or other appropriate electronic means to its production and
maintenance employees, in addition to the traditional physical posting of paper notices
on a bulletin board. See J Picini Flooring, 356 NLRB No. 9 (2010).
In addition to the traditional remedies for the 8(a)(1) violations found herein,
counsel for the Acting General Counsel has requested additional remedies to cure the
effects of the Company’s unlawful conduct. Specifically, counsel seeks an order
“requiring that a Board agent read the notice to employees in English and Spanish
during worktime in the presence of Respondent’s representatives.” For several
reasons, I find that this request is appropriate. First, given that the forthcoming rerun
election will represent the Board’s third attempt to conduct an untainted election, a
reading of the notice will ideally foster the environment required for a fair and final
election result. Second, inasmuch as the Company’s employees are mostly not fluent in
English, a notice reading will present an effective way to share and distribute
information amongst a somewhat insular workforce. Lastly, a notice reading will
counteract the coercive impact of the instant ULPs, which were committed by high-
ranking management officials. See Consec Security, 325 NLRB 453, 454-455 (1998),
enfd. 185 F.3d 862 (3d Cir. 1999) (participation of high-ranking management in ULPs
magnifies the coercive effect). Accordingly, I conclude that a Board agent should read
the notice to production and maintenance employees in English and Spanish during
worktime, in the presence of the Company’s current president and plant manager. See
Mcallister Towing & Transportation Co., 341 NLRB 394, 400 (2004) (“[T]he public
reading of the notice is an ‘effective but moderate way to let in a warming wind of
information and . . . reassurance. [citations omitted].”’).
On these findings of fact and conclusions of law, and on the entire record, I issue
the following recommended28
ORDER
The Respondent, Newburgh Eggs, Inc., Woodridge, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting, remedying, and impliedly promising to remedy
grievances, in order to discourage employees from selecting the Union as their
collective-bargaining representative.
(b) Expressing to employees that it would be futile for them to select
the Union as their collective-bargaining representative.

28 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.
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(c) Granting employees benefits, in order to discourage them from
selecting the Union as their collective-bargaining representative.
(d) Impliedly promising employees unspecified future benefits, in order
to discourage them from selecting the Union as their collective-bargaining
representative.
(e) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Within 14 days after service by the Region, physically post at its
Woodridge, New York facility, and electronically distribute via email, intranet, internet, or
other electronic means to its production and maintenance employees who were
employed by the Respondent at its Woodridge, New York facility at any time since July
15, 2010, copies of the attached notice marked “Appendix”29 in both English and
Spanish. Copies of the notice, on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representative, shall be physically
posted by the Respondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the
facility 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 15, 2010.
(b) Within 14 days after service by the Region, hold a meeting or
meetings during working hours, which will be scheduled to ensure the widest possible
attendance of production and maintenance employees, at which time the attached
notice marked “Appendix” is to be read to its employees by a Board agent in English
and Spanish in the presence of its current president and plant manager.
(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.
IT IS FURTHER ORDERED that the Regional Director for Region 3 shall set
aside the representation election conducted in Case 3-RC-11918, and that a new

29 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.”
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election be held at a date and time to be determined by the Regional Director.
Dated, Washington, D.C., April 27, 2011.
____________________________
Robert A. Ringler
Administrative Law Judge
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Woodridge, NY
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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 do anything that interferes with these rights. Specifically:
WE WILL NOT ask you to tell us your problems at work, fix your problems at work, or
promise to fix your problems at work, in order to persuade you to vote against the Union
in an election.
WE WILL NOT tell you that it would be useless or pointless for you to choose the Union
as your representative.
WE WILL NOT give you benefits, in order to persuade you to vote against the Union in
an election.
WE WILL NOT promise to give you benefits after the election, in order to persuade you
to vote against the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL hold a meeting or meetings during working hours and have this notice read to
you and your fellow workers in English and Spanish by an agent of the National Labor
Relations Board in the presence of the Company’s current president and plant manager.
NEWBURG EGGS, INC.
(Employer)
Dated: ____________ By: ___________________________________________
(Representative) (Title)
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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.
Leo W. O'Brien Federal Building, Clinton Ave and N Pearl Street, Room 342, Albany, NY 12207-2350
(518) 431-4155, Hours: 8:30 a.m. to 5 p.m.
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, (716) 551-4931.