NFI Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 8, 2010

04-CA-036842 (N.L.R.B. Jan. 8, 2010)

JD-01-10
Burlington, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NFI INDUSTRIES, INC.,
and
WAREHOUSE EMPLOYEES UNION Case 4–CA–36842
LOCAL 169 a/w INTERNATIONAL
BROTHERHOOD OF TEAMSTERS.
Margaret McGovern, Esq. (Region 4, NLRB),
of Philadelphia, Pennsylvania, for the General Counsel
James R. Redeker, Esq. (Duane Morris LLP),
of Philadelphia, Pennsylvania, for Respondent
Claiborne S. Newlin, Esq. (Meranze and Katz),
of Philadelphia, Pennsylvania, for the Charging Party
DECISION
Introduction
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves an employer that
maintained an employee handbook at its approximately 50 facilities with unlawfully overbroad
restrictions on disclosure of pay and other information. The General Counsel of the National
Labor Relations Board (Board) issued an unfair labor practice complaint over the handbook
restrictions, and other matters arising out of a union organizing effort at the employer’s
Burlington, New Jersey facility. The employer then revised the offending handbook provisions.
It posted the revisions at all of its facilities (with the exception of the Burlington facility that had
been the subject of the organizing drive). The employer also distributed copies of a letter
announcing the handbook revisions to employees at each of the facilities (again, with the
exception of the Burlington facility).
The stipulated remaining issue in dispute is one of remedy for the handbook violations.
The employer concedes that its original handbook provisions violated Board precedent. It
agrees that, at its Burlington facility, it must post a Board notice to employees as part of the
remedy for the violation. However, the employer contends that Board precedent requiring the
posting of a Board notice at each location where the unlawful handbook provisions were
maintained is unnecessary. The employer contends that at facilities other than the Burlington
facility, because it has taken action on its own to revise the unlawful handbook provisions, and
to post and disseminate notice of the revisions to employees, a Board-ordered notice posting is
unwarranted.
The Government and the charging party—the union involved in organizing the Burlington
facility--contend that a Board notice-posting remedy is appropriate at each facility where the
unlawful handbook provisions were maintained. They contend that the employer’s remediation
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efforts—the posting and distribution to employees of its rule revisions—does not obviate the
necessity for a Board posting at each facility at which the unlawful handbook provisions were
maintained.
Statement of the Case
On June 12, 2009, the Warehouse Employees Union, Local 169 (Union) filed an unfair
labor practice charge, docketed by Region 4 of the Board as Case 4–CA–46832. The charge
alleged that NFI Industries, Inc. (NFI or Employer) was violating the National Labor Relations
Act (Act). The Union filed an amended charge in the case on July 2, 2009, and on August 21,
2009, filed a second amended charge.
On August 21, 2009, the Board’s General Counsel, acting through the Regional Director
for Region 4, issued a complaint against NFI, alleging that NFI was violating Section 8(a)(1),
and (3) of the Act. Specifically, the General Counsel alleged that NFI maintained certain rules
and policies in its employee handbook, applicable to all of its facilities that were violations of the
Act. The complaint also alleged the promulgation of certain rules and certain conduct by NFI,
undertaken at its Burlington, New Jersey facility, some of it in response to and/or to discourage
union activity. NFI filed an answer to the complaint on September 4, 2009, denying all alleged
violations of the Act.
On August 13, 2009, pursuant to an informal settlement agreement, the Regional
Director issued an order withdrawing several paragraphs of the complaint, leaving as the only
alleged violation of the Act NFI’s maintenance of rules and policies in its employee handbook,
applicable to all of its facilities.1
A hearing in this case was held November 2, 2009 by telephone, with counsel for all
parties participating. The parties waived their right to present testimony, and, instead, submitted
into evidence a Joint Stipulation of Facts and Issues. That stipulation, along with the formal
papers contained in General Counsel’s Exhibit 1, and the transcript of the hearing, constitute the
record in this matter. The General Counsel and the Employer filed briefs in support of their
positions on December 7, 2009. On the entire record, I make the following findings of fact,
conclusions of law, and recommendations.
JURISDICTION
The complaint alleges, Respondent admits, and I find that Respondent has been
engaged in the operation of distribution centers throughout the United States, including one in
Burlington, New Jersey, and that during the last year Respondent has purchased and received
at the Burlington facility goods valued in excess of $50,000 directly from points outside the State
of New Jersey. The complaint further alleges, Respondent admits, and I find that Respondent
is, and at all material times has been, an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The parties stipulate (Jt. Stip. at ¶3) that at all material
times, the Union has been a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.

1In the August 13, 2009 order the General Counsel withdrew the allegations of paragraphs
6, 7, 8 and the portions of paragraph 9 related to paragraphs 6, 7, and 8.
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Findings of Fact
NFI operates distribution centers throughout the United States, including one in
Burlington, New Jersey. NFI admits that it maintained the following rules and policies in its
employee handbook, applicable at all (approximately 50) of its facilities:
. . . [DISCIPLINE at page 12)
27. Disclosing confidential payroll information to others.
... (at page 17)
SALARY CONFIDENTIALITY
The Company takes precautions to assure that your pay rate and the amount of
your paycheck is confidential and it is expected you do the same. This is a
private matter between you and The Company and should not be disclosed to
others. Failure to comply with this request will be considered grounds for
immediate termination.
... (at page 30)
CONFIDENTIALITY
Naturally, all company affairs are strictly confidential. Employees should never
discuss or disclose to persons outside The Company or any other employees
who do not have a need to know (without the written authorization of the
President of The Company), confidential company information, particularly
relating to services, customers, pricing, vendors, wage rates, expenses, systems,
policies or procedures.
While Respondent admits maintaining these rules “at all material times” until September
14, 2009, there is no pending complaint allegation or evidence that any NFI employee was
disciplined or discharged for violating these handbook rules. Respondent’s search of its
personnel files uncovered no evidence of any such action taken against any employee for
breach of these rules.
Effective on or about September 14, 2009, Respondent posted a revision to these rules
at all of its warehouses and logistics facilities except the Burlington, New Jersey warehouse.
This notice stated:
NOTICE TO ALL EMPLOYEES
NFl Distribution is in the process of revising its Employee Handbook and expects
that an updated version will be available for you in the near future. In the
meantime, we want to bring to your attention several changes, effective
immediately.
1. Disciplinary Rule 27 on page 12 pertaining to confidential payroll information
and the policy titled SALARY CONFIDENTIALITY on page 17 are revoked and
being removed from the policies of the Company.
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2. The policy titled CONFIDENTIALITY on page 30 has been modified to remove
the words "wage rates" and to add clarifying language. These changes are
intended to eliminate any limits that employees believe may exist on their right to
discuss their wages and working conditions among themselves or with others.
The policy of the Company pertaining to confidentiality of information now reads:
CONFIDENTIALITY
All company affairs are strictly confidential. Employees should never discuss or
disclose to persons outside The Company or to any other employees who do not
have the need to know, (without the written authorization of the President of The
Company). Confidential company information, particularly relating to services,
customers, pricing, vendors, expenses, systems, policies or procedures that do
not relate to the terms and conditions of the employment of company employees.
Some employees may be required, as part of their employment, to sign a separate
Confidentiality Agreement and/or Propriety Agreement. All employees are
required to maintain as confidential, any confidential information of The Company
as defined in this policy and in the Confidentiality Agreement and/or Propriety
Agreement.
3. The current Handbook is silent with respect to access to the Company's
premises by off-duty employees. To answer any questions employees may have
concerning this subject and to ensure that all of our facilities operate with the
same rules, again, effective immediately, the following rule regarding access to
Company premises applies to all Company facilities and property:
ACCESS TO COMPANY PREMISES
The Company has a very active business and the area around its buildings
is often congested with truck and automobile traffic, creating safety risks
to all pedestrians.
Employees are encouraged to be careful when on the property
surrounding our building(s) and to go to and from buildings promptly,
without loitering or "hanging around." While all employees must keep in
mind the Importance of safety, especially around driveways and parking
lots, off-duty employees are not prohibited from being on the property of
the Company, so long as they remain outside of the buildings. Off-duty
employees are prohibited from being in any of the Company's buildings,
unless they are actively going to or from work.
Non-employees are prohibited from being on the Company's property or in its
buildings at all times, unless they are invited onto the property by the Company
for the purpose of conducting business with the Company.
If you have any question about these changes, please contact your facility
manager.
(Emphasis in original.)
Also on or about September 14, 2009, NFI distributed copies of the foregoing notice,
with minor changes, in the form of a letter dated September 2, 2009, from NFI’s human
resources department to employees at all its facilities except the Burlington, New Jersey
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warehouse.
On or about September 23, 2009, Respondent reposted its notice previously posted
September 14, with some minor corrections, at the same facilities, again excluding Burlington.2
Through these notices and letter, Respondent communicated the revised rules to its
employees (with the exception of Burlington facility employees) at approximately 50 facilities,
across the country in approximately 18 States. There were no other communications to NFI’s
employees concerning the revisions to the handbook.
Analysis
Respondent admits, and does not challenge, that the handbook rules prohibiting the
disclosure of payroll, salary, and “company information, particularly relating to . . . wage rates,”
in place at its facilities until September 2009, and set forth above, “are overly broad and violate
the Act.” (Jt. Exh. 1 at ¶4.) Respondent is correct. Under settled Board precedent, the
maintenance of such rules is violative of the Act. Pontiac Osteopathic Hospital, 284 NLRB 442,
465 (1987); Waco, Inc., 273 NLRB 746, 748 (1984); International Business Machines Corp., 265
NLRB 638 (1982); Blue Cross-Blue Shield of Alabama, 225 NLRB 1217, 1220 (1976).
Accordingly, Respondent’s maintenance of the rules violated the Act, as alleged in the
complaint.3
The nub of the dispute between the parties is the appropriate remedy for NFI’s admitted
violation of the Act.4
The affirmative action the Board typically orders in a handbook violation case—at least
in cases, like this one, where no discipline has resulted from the maintenance of the unlawful
rule—includes the posting of and obedience to a Board designated informational notice. In the
notice, the employer informs employees that it will not engage in the proscribed conduct found

2The text of the posted notices and the letter to employees was almost identical, each
containing a few minor changes from the others. None of the differences are material to the
issues in dispute. Copies of the original documents are in the record as attachments to the
Joint Stipulation of Facts and Issues.
3The complaint issued before NFI’s revisions to the handbook, and therefore, the complaint
does not reference the revisions. Although not entirely clear from the parties’ stipulation, I do
not understand the General Counsel to allege that Respondent’s new handbook rules, revised
as of September 14, continue to independently violate the Act. Without regard to whether those
revisions adequately repudiate the admitted prior violation of the Act, the General Counsel
presents no argument that the revisions continue to violate the Act. Accordingly, I assume,
without analyzing the revisions, that with the revised handbook rules, Respondent ceased
violating the Act.
4See, Joint Stipulation of Facts and Issues at ¶7 (“The legal issue in this case is whether
a Notice to Employees, posted at the direction of the National Labor Relations Board at all
locations . . . (as opposed to the Burlington, New Jersey facility only), is necessary to remedy
the unfair labor practice, notwithstanding Respondent’s internal publications of the revisions.”);
R. Br. at 3 (“The sole issue presented in this case, therefore, is whether NFI should be required
to post a complete Board Notice regarding the change in Confidentiality Policy at its facilities
nationwide, in addition to [the Burlington facility]”) .
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to violate the Act, or “in any like or related manner” otherwise interfere with the rights
guaranteed to employees under the Act.
Board precedent provides that this notice should be posted by the Employer at each of
its facilities at which the unlawful handbook provisions were maintained. See, e.g., Long Drug
Stores of California, 347 NLRB 500, 501 (2006) (“The Board has ‘consistently held that, where
an employer's overbroad rule is maintained as a companywide policy, we will generally order
the employer to post an appropriate notice at all of its facilities where the unlawful policy has
been or is in effect.’”) (quoting Guardsmark, LLC, 344 NLRB 809, 812 (2005)); Jack in the Box
Distribution Center Systems, 339 NLRB 40 (2003) (“we deem it an appropriate remedial
measure to require that the rescission of the provision, and the posting of the notice, be
coextensive with the Respondent's application of its handbook”); North American Pipe Corp.,
347 NLRB 836, 853–854 (2006) (requiring “posting of the notice coextensive with Respondent's
application of its handbook”); Kinder-Care Learning Centers, 299 NLRB 1171, 1176 (1990)
(“because the Respondent has maintained its [unlawful] rule as a companywide policy, we shall
order the Respondent to modify this rule or policy by deleting those portions that we have found
to be unlawful, as discussed above, and to post an appropriate Board notice to employees at all
its centers where this rule or policy has been or is in effect”).
This precedent would seem to settle the issue of the scope of the posting remedy
required in this case. The Board’s policy, and it is self-evident in its reasonableness, is that the
scope of the remedy must be coextensive with the violation found. The rationale for deviating
from this Board policy in this specific case must be based on facts and circumstances that justify
removing this case from the ambit of the Board’s consistent precedent on this issue.
Respondent advances three arguments why posting a notice at each facility where the
offending rules were in place is not warranted in this case. The first two are entirely misplaced
and must be rejected out of hand.
NFI first contends (R. Br. at 3–7) that it is not a “recidivist or recalcitrant employer” and,
therefore, “broad” or “special remedies” are not warranted. Second, and mingled with the
argument against “special remedies,” is NFI’s assertion (R. Br. at 6–7) that requiring it to post a
notice at each facility where the handbook was in force constitutes an attempt to remedy
“speculative” consequences of an unfair labor practice.
The Board’s approval of “broad” or “special” remedies in cases involving egregious
respondents or those with a demonstrated proclivity to violate the Act has no bearing on the
remedy sought by the General Counsel here. It is true that “special remedies” may include the
posting of notices at employer facilities not directly involved with the specific unfair labor
practices being remedied. See, e.g., J.P. Stevens & Co., 245 NLRB 198 (1979), enfd. in
relevant part 638 F.2d 676 (4th Cir. 1980). But not notwithstanding NFI’s rhetorical conflation of
the remedy sought in this case with the seeking of “companywide” or “nationwide” remedies, the
remedies sought here do not extend to any facility uninvolved in the unfair labor practices found.
Nor is the remedy in this case “speculative”—i.e., an effort to remedy an unfair labor practice
beyond the violation of employee rights found.
The stipulated fact is that the admittedly unlawful handbooks were maintained at each of
Respondent’s facilities. Thus, the remedy sought by the General Counsel is tailored to and
coextensive with the scope of unfair labor practices alleged, admitted, and found. That the
Charging Party (presumably) initially discovered the handbook violation at only one facility, in no
way mitigates the unlawfulness of the maintenance of the same handbook provisions at its other
facilities. Similarly, that no one associated with those facilities complained about, or was
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disciplined over the handbooks, does not mean the Board has no violation to remedy. It is the
mere maintenance of handbook provisions that employees would reasonably read as restricting
discussion and conduct protected by Section 7 that proves the violation of employee rights at
every facility at which the unlawful rule was maintained. The violation is not speculative. The
fact that no employee complained, the fact that no employee was disciplined—indeed, the fact
that there is no evidence of enforcement of the rule—is beside the point precisely because the
mere maintenance of the rule “would reasonably tend to chill employees in the exercise of their
Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998). Under settled precedent,5
expressly unchallenged by Respondent here,6 that is sufficient to find an unfair labor practice at
every facility at which the unlawful provision was maintained. And having found the unfair labor
practice interfered with employee rights, it is reasonable, perhaps incumbent upon the Board, to
remedy it in a manner coextensive with the scope of the violation of employee rights. The
remedy sought by the General Counsel is not broad, special, or based on speculation about the
extent of the unfair labor practices.
Respondent’s final contention is more substantial. Respondent contends (R. Br. 7–10)
that its voluntary actions to revise the offending rules and distribute notice of the revision to
employees at facilities other than Burlington constitute sufficient repudiation of the unfair labor
practices to “cure” the violation and render further remedial action at those facilities
unnecessary.
The potential for a party that has committed an unfair labor practice to repudiate the
unfair labor practice, and thereby obviate the need for a Board-imposed remedy, or even a
finding of a violation, has long been a part of Board precedent.7
In Passavant Memorial Area Hospital, 237 NLRB 138 (1978), the Board
articulated its understanding of the steps which a respondent must take to repudiate an unfair
labor practice. Drawing together a number of strands from prior cases, the Board in Passavant
reaffirmed that “under certain circumstances an employer may relieve himself of liability for

5Lafayette Park Hotel, supra; Cintas Corp., 344 NLRB 943, 946 (2005) (“the law is clear
that the mere existence of such a rule, even if it is not enforced, constitutes an unlawful
interference with employees' Section 7 rights, in violation of Section 8(a)(1) of the Act”), enfd.
482 F.3d 463, 468 (D.C. Cir. 2007) (“as we have recently clarified, the ‘”mere maintenance”' of a
rule likely to chill section 7 activity, whether explicitly or through reasonable interpretation, can
amount to an unfair labor practice “even absent evidence of enforcement”’’) (quoting
Guardsmark v. NLRB, 475 U.S. 369, 374, 376 (D.C. Cir. 2007) (internal quotations omitted));
Franklin Iron & Metal, 315 NLRB 819, 820 (1994) ("Nor does it matter if the rule was unenforced
or unheeded."), enfd. 83 F.3d 156 (6th Cir. 1996).
6Joint Stipulation of Facts and Issues at ¶4 (“under current Board law, which
Respondent agrees it will not challenge in these proceedings, these rules are overly broad and
violate the Act”). Joint Stipulation of Facts and Issues at ¶5) (“Respondent represents that . . .
to the best of its knowledge, no employees at any location have been disciplined or discharged
for breach of [the challenged] rules”).
7I note that while the repudiation of an unfair labor practice is sometimes relied upon to
remove the need for a Board finding of a violation, not just the need to order a remedy,
Respondent here contends only that its repudiation eliminates the need for further remedying of
a violation it admits. R. Br. at 3; Jt. Stipulation at ¶7. Given my resolution of the dispute, the
distinction is of no consequence.
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unlawful conduct by repudiating the conduct.” The Board announced the Passavant test, all
factors of which must be satisfied in order to cure the unfair labor practices:
To be effective, however, such repudiation must be "timely," "unambiguous,"
"specific in nature to the coercive conduct," and "free from other proscribed illegal
conduct." Douglas Division, The Scott & Fetzer Company, 228 NLRB 1016
(1977), and cases cited therein at 1024. Furthermore, there must be adequate
publication of the repudiation to the employees involved and there must be no
proscribed conduct on the employer's part after the publication. Pope
Maintenance Corp., 228 NLRB 326, 340 (1977). And, finally, the Board has
pointed out that such repudiation or disavowal of coercive conduct should give
assurances to employees that in the future their employer will not interfere with
the exercise of their Section 7 rights. See Fashion Fair, Inc., et al., 159 NLRB
1435, 1444 (1966); Harrah’s Club, 150 NLRB 1702, 1717 (1965).
In Passavant, the unfair labor practices at issue were statements made by an
administrative assistant to employees that they would be fired if they participated in a strike.
The Board considered the contention that the employer had sufficiently repudiated these
violations through its subsequent publication in its employee newsletter of the following notice
signed by the employer’s administrator:
It has come to my attention that some of our employees, in response to a
question, were told that employees who go out on a strike for economic reasons
can be fired. This is not correct.
Employees have a legal right to engage in an economic strike; however,
management has a duty to continue operation of the hospital and has a right to
permanently replace any employees who do go out on an economic strike. If the
striker is permanently replaced, he cannot return to his job when he wishes. He
will be recalled only when an opening occurs for which he is qualified.
The ALJ in Passavant found this statement to be “an effective repudiation and
disavowal” of the unfair labor practices. As discussed, herein, the Board, applying the seven-
part Passavant test set forth above, did not agree and reversed.
In the instant case, Respondent contends that its revision of the offending handbook
rules, and its notice and explanation to employees, “obviate the need for further remedial
action.” In pressing this contention, Respondent suggests that in the years since Passavant,
“the Board has loosened its application of the Passavant criteria and permitted a greater
exercise of discretion based on the reality of the circumstances.”
Although Board members, in a number of cases, have expressed unwillingness “to pass
on the validity of all the factors required for an effective repudiation as set forth in Passavant,” it
is also the case that Passavant remains “extant Board law.” Intermet Stevensville, 350 NLRB
1349, 1350 fn. 6 (2007). It is also true, as Respondent points out, that in River’s Bend Health &
Rehabilitation Service, 350 NLRB 184 (2007), the Board adopted an ALJ’s dismissal of an
8(a)(5) violation of “relatively minor importance” (a unilateral 75-cent increase in the price of
employee meals, actually paid by one employee in three instances), even though the ALJ found
that the employer’s “repudiation does not completely accord with the Passavant criteria with
regard to timeliness and lack of ambiguity.” Id. at 193.
I will assume, without deciding, that what Respondent characterizes as “slavish
adherence” to the Passavant factors is not required, and that it is not always necessary that
every factor cited in Passavant be satisfied in order for a respondent to successfully repudiate a
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violation. Still, I think that under the circumstances Respondent’s purported repudiation misses
not only many of the details, but the gravamen of Passavant.
First, it must be stated that the violations at stake here are not trivial, or unimportant, but
significant violations. Although there is no evidence of discipline being meted out for violation of
these unlawful rules, the flouting of employer rules carries the potential discipline. Indeed, one
of the rules declared that “your pay rate and the amount of your paycheck is confidential” and “a
private matter between you and The Company and should not be disclosed to others. Failure to
comply with this request will be considered grounds for immediate termination.” And these
unlawful rules were in place and violating the rights of employees at every facility of NFI. While
the maintenance of these rules may not have the emotional force of a supervisor orally
announcing to employees that they can be discharged for striking, the Board recognizes that
employee conversations about wages are at the core of activity covered by Section 7’s “mutual
aid and protection” clause. Scientific-Atlanta, Inc., 278 NLRB 622, 624 (1986) (“The Board has
held that Section 7 ‘encompasses the right of employees to ascertain what wage rates are paid
by their employer, as wages are a vital term and condition of employment’”) (quoting, Triana
Industries, Inc., 245 NLRB 1258 (1979)). Indeed, the discussion of salaries has been termed by
the Board “an inherently concerted activity clearly protected by Section 7 of the Act.” Automatic
Screw Prods. Co., 306 NLRB 1072 (1992), enfd w/o op. 977 F.2d 582 (6th Cir. 1992). This is
not a case about trivialities or technicalities, but about rules that can reasonably be understood
to impede fundamental Section 7 rights.
Second, Respondent’s repudiation was untimely under the standards set forth in
Passavant. The offending handbook provisions have long been in place. They were modified
more than 10 weeks after the Union’s filing of an amended charge challenging the provisions,
and more than 3 weeks after the General Counsel issued a complaint alleging that maintenance
of the provisions violated the Act. By comparison, the Board in Passavant found the “disavowal
was not timely” where the disavowal was not made until 7 weeks after the commission of the
unlawful unfair labor practice, but just 3 days after the filing of the charge mooting the issue.
Even if timeliness is measured from the time the charge was filed, and not from the time that the
unfair labor practice first occurred, Respondent’s revision was untimely under Passavant.
Moreover, specifically as to timeliness, the Board in Passavant stated: “Nor can we
ignore the fact that Respondent delayed until very nearly the eve of the issuance of the
complaint before publishing its disavowal.” Here, NFI waited until more than 3 weeks after
issuance of a complaint, with a trial on the matter set, to issue its “disavowal.” While NFI
asserts that it should be “applauded and embraced” for voluntarily repudiating its unlawful
policies, like the Board in Passavant, I cannot ignore that NFI took its voluntary steps only after
the prosecutor had loaded, cocked, and aimed his legal weapon. Clearly, NFI’s repudiation was
untimely under Passavant.8
Similarly, under the standards set forth in Passavant, NFI’s repudiation was neither
“unambiguous” nor “specific in nature to the coercive conduct.” In Passavant, the Board
concluded that the employer’s remediation statement “was neither sufficiently clear nor
sufficiently specific” as “Respondent did not admit any wrongdoing but merely informed

8The Board in Passavant rejected the ALJ’s reliance on Kawasaki Motors Corp., 231
NLRB 1151 (1978) as “misplaced,” distinguishing that case, in part, on the basis that “in
Kawasaki the employer's remedial action was completely voluntary with no threat of the
Regional Director's further action.” 237 NLRB at 139. The Board noted that, by contrast, in
Passavant, “Respondent admittedly published its statement as a result of the unfair labor
practice charge filed in this case, almost 2 months after the threats were uttered.” Id.
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employees that information given them was ‘not correct.’” The Board also faulted the
respondent in Passavant for failing to provide more specificity by failing to name the
administrative assistant who committed the unfair labor practice, “nor does it mention the
circumstances in which [the assistant] made the unlawful threats.”
In this case, NFI’s remediation notice does not meet even the failed standards of clarity
and specificity rejected in Passavant. NFI’s notice does not concede that the handbook
provisions were unlawful, or even incorrect. Indeed, NFI’s notice does not even admit that the
provisions limited employees in discussion of wages. Rather, NFI’s notice explains that it is
changing the handbook provisions to “eliminate any limits that employees believe may exist on
their right to discuss their wages and working conditions.” The phrasing is not without
significance. Respondent is saying that the changes are being made to correct the subjective
(perhaps, misplaced) views of employees about the rules. It avoids admitting that the prior rule
limited employee discussion, and avoids admitting any wrongdoing by NFI. This evasion is not
impressive in the context of a legal standard for remediation that values admissions of
wrongdoing, explanations of the circumstances of the unlawful conduct, and much more than
announcements that the old provisions were incorrect, an insufficiency that is not even met by
NFI’s notices. See, Branch Intern’l Services, 310 NLRB 1092, 1105 (1993) (“Respondent's
attempt to ‘clarify’ the ‘misunderstanding’ clearly does not meet the Board's test for repudiation
of the unfair labor practice. Passavant Memorial Hospital, 237 NLRB 138 (1978) requires a
disavowal of the unlawful Act”), enfd w/o op. 12 F.3d 213 (6th Cir. 1993).
Finally, and, according to the Board in Passavant, “most importantly,” NFI’s notice to
employees “did not assure employees that in the future Respondent would not interfere with the
exercise of their Section 7 rights by such coercive conduct.” Indeed, as the General Counsel
presses, NFI’s notice provides no indication that the revisions in the rules were made to secure
a Federal right for employees, or to conform NFI’s handbook and policies to Federal law. As far
as NFI’s notice to employees lets on, this change is unilaterally being carried out by NFI, for its
own purposes, and is not grounded in or otherwise buttressed by Federal law. Indeed, as
noted, above, the phrasing of the explanation for the revision leaves doubt as to whether the
Employer is motivated by a desire to change the rule, or simply a desire to change employees’
“beliefs” about the rule. All of this adds to the ambiguity and lack of specificity, described above.
It also flatly fails to provide assurance to employees that their Section 7 rights—violated by
these rules whether the employees know it or not—are secure in the future. As far as someone
reading the notice can ascertain, what NFI gives, NFI can take away.
The lack of reference to even the potential legal basis for the change in the handbook is
instructively compared to the remediation notice in River’s Bend Health, 350 NLRB 184 (2007),
a case relied upon by NFI. As discussed above, in that case, the Board accepted the
remediation effort as to a “relatively minor” unfair labor practice, even though every Passavant
factor was not satisfied. Still, as to this “most important” Passavant factor, the employer in
River’s Bend was far more forthcoming than NFI. Thus, in River’s Bend, the employer posted a
notice entitled “Unfair Labor Practices,” which, in listing the Region’s findings, stated “[t]he 50
cent price increase in meals was not legal. River's Bend will agree to cancel the price increase
and reimburse employees." 350 NLRB at 193. In a subsequent memo, the employer stated:
We have been advised by the Regional Director for the National Labor Relations
Board that River's Bend improperly increased meal prices on February 16, 2004,
because we changed the meal price without negotiating with the union. The
Regional Director has requested that we return meal prices to the prices that
were in effect prior to February 16, 2004, and reimburse any bargaining unit
employees who paid the increased price. We are honoring the Regional
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Director's request, effective immediately, by returning meal prices to $ 2.25 for
dinner and $ 3.00 for lunch, and reimbursing the price difference to any
bargaining unit employees who purchased meals since February 16. [Id.]
Based on this, the Board in River’s Bend adopted the ALJ’s finding that “the
memoranda, at least implicitly, concede that the price increase violated the Act due to
Respondent's failure to bargain with the Union and implicitly provides assurance that
Respondent will not increase meal prices in the future without bargaining.” Nothing remotely as
straightforward regarding employees’ Section 7 rights, NFI’s legal situation, or its intent to not
interfere with employees’ section 7 rights in the future, can be gleaned from NFI’s cryptic
explanation that the rule change was being undertaken by NFI to remove any limitations on
discussion “employees believe may exist.”
Under these circumstances, Respondent’s remediation is inadequate. I accept that
NFI’s actions were "free from other proscribed illegal conduct"—other alleged misconduct was
confined to the Burlington facility, and settled, and, therefore, never proven. In addition, there is
no fault to be found with the publication and distribution of the repudiation notice to employees.
That notice went to employees at each facility (other than at Burlington). These two parts of
Passavant are satisfied.
But compliance with these two parts of Passavant cannot transform an inadequate
repudiation into a “cure” that can substitute for Board action. It is the Board’s role to vindicate
employees’ Section 7 rights when violated. Indeed, the standard Board notices that are posted
make clear that the vindication of Federal rights are at the core of remedial action ordered by
the Board. Respondent’s purported remedy for its violations of the Act would obfuscate the role
of Federal rights in the rule change announced by Respondent. Respondent’s remediation
notice fails to mention, let alone assure future compliance with employee Section 7 rights. It
gives no hint of the Employer’s legal obligations, wrongdoing, or even a suggestion that the
timing of the announcement was related to the threat of action by the Board’s General Counsel.
The heart of Passavant is the timely, specific, and unambiguous acknowledgement by a
respondent to employees of how it has run afoul of their Section 7 rights and that it will not do so
in the future. All of this is missing from Respondent’s remediation notice. This cannot satisfy
the Board’s standards for effective repudiation.
Respondent shall be ordered to post a Board-prepared notice at all facilities where its
employee handbook has been in effect.
CONCLUSIONS OF LAW
1. Respondent NFI Industries, Inc. is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Charging Party Warehouse Employees Union Local 169 a/w International
Brotherhood of Teamsters is a labor organization within the meaning of Section 2(5)
of the Act.
3. At all material times through September 14, 2009, Respondent maintained rules and
policies in its employee handbook that were overly broad in violation of Section
8(a)(1) of the Act.
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4. The unfair labor practices committed by Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist. It also must be ordered to take certain affirmative action
designed to effectuate the policies of the Act.
Respondent shall post an appropriate informational notice, as described in the Appendix,
attached. This notice shall be posted in all its facilities where its employee handbook as been,
or is in effect, wherever notices to employees at those facilities are regularly posted, for 60 days
without anything covering it up or defacing its contents. When the notice is issued to
Respondent, it shall sign it or otherwise notify Region 4 of the Board what action it will take with
respect to this decision.
In this case, the evidence is undisputed that Respondent has revised the offending
handbook rules. Accordingly, the remedy need not include direction to undertake that revision.
Further, the record also establishes that at each facility other than the Burlington facility,
Respondent has distributed to employees a letter that furnishes all current employees with the
language of the revised lawful provisions of the handbook and along with the language that has
been rescinded. This satisfies the Board’s traditional requirement that either inserts for the
current handbook, or a revised handbook, be provided to employees. Thus, this affirmative
action will be required only at any facility where Respondent has not, to date, undertaken such
action, namely, the Burlington facility.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
Respondent, NFI Industries, Inc., Burlington, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining overly broad provisions in its employee handbook at any of its
facilities that prohibit, or reasonably could be read to prohibit, employees from
discussing wages, hours, and other terms and conditions of employment, among
themselves or with nonemployees.
(b) 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.

9If 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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2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Furnish all current employees at the Burlington facility with inserts for the
current edition of the NFI employee handbook that (1) advise that the unlawful
provisions above have been rescinded, or (2) provide the language of lawful
provisions; or publish and distribute to all current employees a revised reference
guide that (1) does not contain the unlawful provisions, or (2) provides the
language of lawful provisions.
(b) Within 14 days after service by the Region, post at each of its facilities in the
United States copies of the attached notice marked "Appendix."10 Copies of the
notice, on forms provided by the Regional Director for Region 4, after being
signed by Respondent's authorized representative, shall be posted by
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 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, Respondent has gone out of business or
closed any facility involved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current and former employees
employed by Respondent at any time since January 2, 2009.11
(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 Respondent has taken to comply.
Dated, Washington, D.C. January 8, 2010.

____________________
David I. Goldman
U.S. Administrative Law Judge

10If 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.”
11The unlawful handbook provisions were in effect “at all material times.” Their
maintenance was a continuing violation. January 2, 2009, is the first date within the limitations
period—six months before the July 2, 2009 filing of the amended charge that first alleged the
maintenance of unlawful handbook provisions.
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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 maintain overly broad provisions in our employee handbook that prohibit, or reasonably
could be read to prohibit, you from discussing wages, hours, and other terms and conditions of
employment among yourselves or with nonemployees.
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 National Labor Relations Act.

WE WILL, as we have previously done for employees at all other facilities where overly broad provisions
of our employee handbook were in effect, furnish all current employees at our Burlington, New Jersey
facility with inserts for the current edition of the NFI employee handbook that (1) advise that the unlawful
provisions above have been rescinded, or (2) provide the language of lawful provisions; or publish and
distribute to all current employees a revised reference guide that (1) does not contain the unlawful
provisions, or (2) provides the language of lawful provisions.
NFI Industries, 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.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106–4404
Hours: 8:30 a.m. to 5 p.m.
215–597–7601.
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 THISNOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 215–597–7643.