U.S. Cosmetics Corporation

National Labor Relations Board - Administrative Judge Opinions

May 17, 2016

01-CA-135282 (N.L.R.B. May. 17, 2016)

JD–41–16
Dayville, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
U.S. COSMETICS CORPORATION
and
TYLER HOAR, an Individual CASES 01–CA–135282
01–CA–139115
and
WILLIAM ST. HILAIRE, an Individual
JoAnn P. Howlett, Esq., for the General Counsel.
Kristan Peters-Hamlin, Esq., for the Respondent.
Robert V. Scalise, Esq., for Charging Party Hoar.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter arises out of a consolidated
complaint and notice of hearing (the complaint) issued on August 28, 2015, against U.S.
Cosmetics Corporation (the Respondent or the Company),1 stemming from unfair labor
practice (ULP) charges filed by Tyler Hoar and William St. Hilaire, individuals.
Pursuant to notice, I conducted a trial in Hartford, Connecticut, on November 17–20
and December 7–9, 2015, and February 22–24, 2016, at which I afforded the parties full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.
I will not address the myriad of accusations made during the trial, other than to
strenuously deny the assertions of the Respondent’s counsel that I was biased against her or
her client and demonstrated that bias in my rulings. She did not formally request that I recuse
myself, but I advised her that she had the right to file a request for a special appeal to the
Board under Board’s Rules Section 102.26 if she felt as though I could not be fair and
impartial. She did not do so.

1 The name of the Respondent recently changed to Miyoshi America, Inc.
JD–41–16
2
During the investigation, the Respondent furnished documents pursuant to the Board’s
May 15, 2014 Order (GC Exh. 23), denying the Respondent’s motion to revoke the Region’s
subpoena duces tecum. The Respondent also furnished documents pursuant to the General
Counsel’s subpoenas duces tecum, both before and during the trial. The General Counsel did 5
not ask that I impose sanctions for subpoena noncompliance. In any event, production of
documents at various times, and (sometimes acrimonious) disputes concerning such
production, complicated and unduly prolonged the proceeding, as did the inability of the
parties to reach stipulations on facts or documents. In addition, the Respondent’s counsel’s
constant interruptions impeded getting reliable witness testimony into the record in an orderly 10
fashion.
Issues
(1) On about July 10, 2014,2 did the Respondent time the announcement and15
implementation of a wage increase for its hourly employees to discourage them
from engaging in a union organizational activities, or was the timing purely
serendipitous vis-à-vis the posting of two copies of a sign in favor of
unionization (the union sign) at the Respondent’s facility on July 8?
20
(2) During the week of July 16, did Human Resources (HR) Manager Judy Jones
(aka Judy White) interrogate Michael McCoil and Andrew Rucci about their
and other employees’ union activities by asking if they knew who had posted
the union sign?
25
(3) On July 17, did the Respondent terminate St. Hilaire because he had threatened
fellow employee Jon Lasko by text or telephone during non-work hours, after
learning that Lasko was dating his ex-wife; or because he had engaged in union
activities, more specifically, posting the union sign?
30
(4) On July 24, did the Respondent terminate Hoar because he had taken packets
of coffee from the cafeteria and placed them in his car on about July 15; or
because he had engaged in union activities, more specifically, posting the
union sign?
35
(5) On August 20 and 21, did the Respondent, by Jones, interrogate McCoil,
Rucci, and other employees about their union activities, in connection with an
investigation into the vandalism of Lasko’s locker?
(6) On November 6, did the Respondent’s issuance of a written memorandum that40
offered employees free legal representation from the Respondent’s counsel
when they met with a Board agent discourage employees from engaging in
protected activities, and otherwise interfere with their Section 7 rights?

2 All dates hereinafter occurred in 2014 unless otherwise indicated.
JD–41–16
3
(7) On about November 8, did Jones interrogate McCoil about his protected
concerted activities, to wit, his participation in the Board’s investigation of
ULP charges?
5
(8) Has the Respondent maintained rules in its employee handbook (the handbook)
that interfere with employees’ Section 7 rights?
Witnesses and Credibility
10
The witnesses, with their job titles at all times relevant, were as follows.
The General Counsel called Hoar, production employee McCoil and, as adverse
witnesses under Section 611(c), the following Company representatives: President Kaoru
“Tim” Takagi; Treasurer and HR Director Louise Pockoski (to whom Jones reported); and 15
Jones.
The Respondent’s counsel called St. Hilaire as an adverse witness under Section
611(c), as well as production employees Lasko and Rucci. She also called Pockoski, Jones,
Production Manager Dennis Desjardin, Senior Technical Center Manager Allen (Al) Tiebout, 20
Jr., and Team Leader Jason Martin.3
The following individuals are no longer employed by the Respondent: Desjardin
retired; Jones resigned to take other employment; and McCoil was terminated. The
circumstances of McCoil’s termination are not before me. In making my credibility 25
resolutions of witnesses, I have fully taken into account the evidence of criminal convictions
contained in the record. None of the conduct occurred at the Respondent’s workplace, and I
will not subject the individuals in question to unnecessary embarrassment by going into the
details of the offenses.
30
Deciding most of the issues in this case hinges on credibility resolution, including the
plausibility of certain accounts of conversations and actions. Before going into specifics, I
cite the well-established precept that “‘[N]othing is more common in all kinds of judicial
decisions than to believe some and not all’ of a witness’ testimony.” Jerry Ryce Builders, 352
NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 35
(2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951). The trier of fact must consider
the plausibility of a witness’ testimony and appropriately weigh it with the evidence as a
whole. Golden Hours Convalescent Hospitals, 182 NLRB 796, 787–799 (1970).

3 The Respondent’s answer admitted that Martin was a supervisor within the meaning of Section 2(11) of
the Act and an agent of the Respondent within the meaning of Sec. 2(13) of the Act. However, at trial,
the Respondent’s counsel represented that this had been an error and that his status as a supervisor and
agent was denied. I allowed her to amend her answer accordingly. I need not address the General
Counsel’s suggestion (GC Br. at 11) that such conduct by the Respondent’s counsel may subject her to
disciplinary action under Sec.102.21 of the Board’s Rules.
JD–41–16
4
The Respondent’s Witnesses
The primary management witnesses were Takagi, the highest ranking official at the
facility; and Jones and Desjardin, who were most directly involved in the planning and
implementation of the pay increase, the terminations of Hoar and St. Hilaire, and other 5
incidents forming the basis of the complaint allegations.
Pockoski was more peripherally involved in the pay increase process and the
terminations. Moreover, although Takagi, Jones, and Desjardin all testified about
management’s reaction to the union sign, and the timing of the announcement and 10
implementation of the pay increase, Pockoski did not.
Tiebout’s testimony was limited to his discovering the union sign, discussions with
Desjardin in 2013 regarding changing the pay structure to be skills based, and a conversation
with Desjardin in June 2014 concerning implementation thereof.15
For reasons described below, none of management’s primary witnesses were
satisfactorily reliable. On important matters, all of them contradicted their own and/or each
other’s testimony; were contradicted by other evidence that the Respondent furnished; offered
explanations or descriptions that were implausible; and failed, collectively, to provide a 20
coherent, consistent, and credible explanation of why the Respondent took certain actions.
President Takagi
Based upon email communications that Takagi had with Jones on July 9 and Company 25
Chairman Taizo Miyoshi in Japan on July 11,4 I find unbelievable his testimony that the
timing of the wage increase was completely disconnected from the union sign; that at a 4:30
p.m. management meeting held on the afternoon of July 9, Jones brought up the union sign
but no one asked any questions, and there was no discussion about it; and that the union sign
was not discussed at any other management meetings. In this regard, the following testimony 30
shows that management did have discussions on the subject. Thus, Tagaki testified that he
advised Miyoshi in the email that “[w]e through [sic] of two possibilities” as to who had
posted the union sign: “some union organization” or an “internal person.” He further told
Miyoshi that they considered the first possibility “very low” because other companies in the
industry in the area did not have that kind of activity, and the Respondent was a small 35
business.5 Takagi said the exact opposite in his sworn declaration of January 21, 2015 (GC
Exh. 21 at 2), that the Respondent provided, “I assumed that was done by an outside organizer
who was posting such signs around town at a number of companies.”
With respect to the wage increase, it is undisputed that Miyoshi had to give final 40
approval. Yet, Tagaki testified that the announcement of the wage increase was planned 30
days prior to July 10, and Desjardin testified at one point that he learned at least a week before

4 GC Exhs. 20, 35(a) (certified translation of GC Exh. 20).
5 Tr. 387, 468.
JD–41–16
5
on or about 10 July that the announcement would be made. On the contrary, Jones testified
that Tagaki did not give her his final approval until July 9, after he returned from a trip to
Japan and saw Miyoshi. I note here that none of the documents that the Respondent
submitted, either before or during the trial, definitively establish the dates on which the final
wage rates were decided or would be announced to employees. Indeed, some of them 5
appeared contradictory.
As to Hoar’s termination, Tagaki testified that either before or after he went to Japan
in July, he had a conversation with Jones and Desjardin in his office about Hoar stealing
coffee, that they recommended Hoar be terminated, and that he agreed because Hoar’s 10
conduct violated the Company’s code of contact. However, this testimony is contradicted by
July 24 and 25 emails between Desjardin and Tagaki (R. Exhs. 2 and 18), showing that
Tagaki was not aware that Hoar had been terminated, or the reasons why, until Desjardin
notified him when he was away on vacation, presumably in Japan.
15
HR Manager Jones
Jones seemed nervous, was frequently evasive, directly contradicted herself a number
of times, and sometimes provided testimony that was wholly unbelievable.
20
Based upon the contents of Jones’ July 9 email to Tagaki, as well as Tagaki’s July 11
email to Miyoshi, I do not believe her testimony that that the timing of the wage increase had
nothing to do with the posting of the notice and that she did not give any thought to who had
posted it.
25
I will not hazard to speculate on why she offered the following utterly perplexing
testimony.6 The Respondent furnished to the General Counsel a document (GC Exh. 16),
which was an email from Jones to Takagi sent at 8:41 a.m. on July 9, with the subject “Sign
on front door 7-9-14.” It states, “As discussed . . . .” The rest of the page is blank, other than
a handwritten notation on the bottom, “attorney/client privileged.” Jones testified she wrote 30
that in and that no one asked her to write it.
Judge: “[H]ow did you decide that it was attorney/client privileged?
Answer: I don’t—honesty, I don’t understand the term.35
. . . .
Judge: So you wrote that, but you didn’t know what it meant?
Answer: Right.
40
She then offered the unconvincing explanation that she meant it was confidential. She
repeated that it was her decision to write “attorney/client privileged” but could not recall

6 Tr. 1046–1047.
JD–41–16
6
when she wrote it. She indeed may have written it but, based on her own testimony, I
seriously doubt that she did so sua sponte.
With further regard to attorney/client privilege, Jones offered directly conflicting
testimony on what she did after Rucci came to see her about his conversation with Board 5
Agent Essie Ablavsky, who was investigating the ULP charges against the Respondent. She
first testified that she did not take notes of her conversation with Rucci, write anything
afterward, or send an email about it to anyone. However, she later testified, “I took down as
much information as he could give me. . . .”7 And, her earlier testimony was contradicted by
her November 6 email to Attorney Peters-Hamlin, in which she described her conversation 10
with Rucci and sought counsel’s advice.
In connection with the investigation of vandalism to Lasko’s locker in August, Jones
interviewed 15 employees on August 20 and 21. General Counsel’s Exhibit 13 consists of her
interview notes. Page one lists a series of questions. After questions regarding knowledge of 15
who was responsible, are the following:
Are you aware anyone put someone up to it?
Have you been talking to him
May I see your phone/text history?20
The notations in her interview notes, consistent with McCoil’s testimony and Rucci’s
affidavit, reveal that even when the employee answered that he was not aware of anyone
putting someone up to the vandalism, Jones nevertheless specifically asked about the
employee’s communications with St. Hilaire (see the repeated references to “Bill,” which she 25
acknowledged was St. Hilaire); and, further, that she asked to see the employee’s cell phone
communications with him.
In this regard, her answers to questions regarding certain notations revealed a lack of
credibility. When the General Counsel asked her about the notation, “FB only. Don’t know if 30
Bill would do that” (id. at 3), Jones answered that she was not sure what she meant and could
not recall if she asked the employee if he had communicated recently with St. Hilaire. She
then said that the note was there because he must have volunteered the information.
The General Counsel asked her about the notation (id. at 8): “N/A. Didn’t bring 35
phone. Think you’re trying to get me to say it was Bill. Don’t get that.”
Ms. Howlett: If he didn’t suspect anyone why would you ask to see his phone?
Answer: I can’t answer that.40
. . .
Ms. Howlett: Why would you have followed up with a question if he told you he
didn’t think anyone did it and he didn’t mention Bill?

7 Tr. 2198.
JD–41–16
7
Answer: I don’t know. 8
Finally, as to the notation on page 10, “Was not approached by Bill”:
5
Ms. Howlett: [I]s it fair to assume that you asked him if he had been approached by
Bill?
Answer: We could assume. 9
10
Despite the above, Jones testified “I don’t believe I ever asked to see anybody’s
phone,”10 and that she did not ask specifically ask about communications with St. Hilaire.
As to Hoar’s termination, Jones first testified that she took statements from Rucci and
Rodriguez (on July 23 and 24, respectively), concerning what they had observed. Later, she 15
testified that she asked Rodriguez to sign a statement, and he agreed. However, the
Respondent never produced statements from either Rucci or Rodriguez from July. I therefore
draw an adverse inference against the credibility of Jones’ testimony from the Respondent’s
failure to provide documents that would reasonably be assumed to be favorable to its position.
See PCC Fabricators, Inc., 352 NLRB 701 fn. 5 (2008); Martin Luther King Sr. Nursing 20
Center, 231 NLRB 15 fn. 1 (1977).
Further as to Hoar’s termination, Jones testified at one point that when Desjardin and
she had Hoar brought in, he was given an opportunity (to defend). However, she contradicted
this with other testimony. Thus, she also testified that based on what Rucci and Rodriguez 25
reported, she and Desjardin decided to terminate Hoar before they met with him. In this
respect, she testified that when Hoar first came into her office, she told him, “You’ve been
called in because you were seen stealing coffee packets from the cafeteria. It’s against our
code of conduct, that’s stealing. You’re being released today.”11
30
When Jones was questioned why an employee (Bryan Kelly) who had engaged in
“loan-sharking” was not terminated but instead received a final written warning, Jones replied
that loan-sharking was not a criminal act, whereas Hoar’s theft and St. Hilaire’s threats of
violence were. However, Kelly’s warning notice—which Jones herself signed on July 17—
specifically states, “It is illegal to loan-shark. . . .”12 She also testified that Hoar and St. 35
Hilaire were terminated because their conduct violated the code of conduct but that Kelly was
not because loan sharking is “not specifically called out in the handbook,”13 even though she

8 Tr. 884–885.
9 Tr. 893.
10 Tr. 842.
11 Tr. 2296.
12 GC Exh. 7 at 13.
13 Tr. 2233.
JD–41–16
8
herself said in Kelly’s warning notice that loan sharking “is against our company code of
conduct.”
Moreover, the way that Jones conducted the investigations that led to the terminations
of St. Hilaire and Hoar also raises serious questions about her reliability as a witness. I will 5
discuss this in the facts and analysis sections.
Production Manager Desjardin
I do not believe Desjardin’s testimony that he never saw the union sign prior to the 10
date when he testified (February 23) and that he chose not to look at it if it was passed around
at the 4:30 p.m. meeting on July 9. That would not have been a normal reaction, especially
when other evidence shows that management was quite concerned.
Desjardin’s testimony of when he learned the wage restructuring had been finally approved 15
was contradictory and totally confusing. He testified that he received an email from Jones in
June stating that Tagaki had approved the pay restructuring but that it was a different email
from Respondent’s Exhibit 3. Later, he back-tracked, equivocating on whether there was
another email. Desjardin testified at another point that he learned of the final approval at a
June 20 meeting with Tagaki, Jones, and Pockoski. At yet another point, he testified that he20
understood that Tagaki had given final approval by telephone after the June 20 meeting.
However, Desjardin also testified that Tagaki told him personally in June that Miyoshi had
given final approval to the wage increases, contrary to Jones’ testimony.
Desjardin testified that no changes were made after June 20 in the pay rates that 25
employees would be receiving. However, internal management documents, including General
Counsel’s Exhibits 38, 39, and 42, contradict him, as does Jones’ testimony that at a June 20
meeting, Tagaki indicated only that he favored the concept of skill-based pay, not any specific
rates.
30
Both Jones and Lasko testified that when the latter reported what had occurred with St.
Hilaire, he stated that he had deleted the threatening messages and had to call his girlfriend to
send him one of the texts. Neither Jones nor Lasko said that Lasko took out his phone and
showed Jones and Desjardin the texts, as Desjardin initially testified. Then, obviously
prompted by the Respondent’s counsel, he changed his version to comport with Jones’ 35
account. Further as to St. Hilaire, Desjardin’s testimony about the nature of the threats that
Lasko reported was inconsistent with both Jones’ complaint investigation (R. Exh. 13) and
Jones’ testimony.
Contrary to Jones’ testimony that the decision to terminate Hoar had been made before 40
she and Desjardin met with him regarding the accusations against him, Desjardin testified that
the decision had not been made because they wanted to hear his side. Desjardin’s description
of what Hoar purportedly said at the meeting was purely nonsensical:14

14 Tr. 2459.
JD–41–16
9
He had all of the time to explain anything as to what was the reason—he
denied putting it in. It wasn’t about anything. He denied putting it in his car.
It wasn’t about were you taking it somewhere else. We told him what people
had seen. He didn’t deny not putting it in his car. But he didn’t give us a 5
reason why he put it in his car.
HR Director and Treasurer Pockoski
Pockoski made obvious attempts to minimize Martin’s authority, even though she at 10
one point, perhaps inadvertently, volunteered that that the team leaders (including Martin)
attended a meeting of managers and supervisors regarding a new antiharassment policy that
the Respondent implemented. Moreover, her professed total ignorance of Martin’s pay vis-à-
vis other production workers was suspicious considering her position in the Company. In any
event, with regard to Martin’s authority, Pockoski had little direct first-hand knowledge. 15
Pockoski was also unconvincing in emphasizing that the Respondent felt obliged to
terminate St. Hilaire for violating the antiharassment policy in order to practice what it
preached. In this regard, neither Jones, Desjardin, nor Tagaki specifically mentioned the
antiharassment policy when they recited the reasons for St. Hilaire’s termination.20
Manager Tiebout
Tiebout was the sole fully credible management witness. He consistently answered
questions readily and smoothly and at no time demonstrated unease or an apparent effort to 25
stilt his testimony in the Respondent’s favor. Thus, he testified that when Desjardin told him
in approximately late June that management had given final approval for the wage increases,
he took this as meaning that Takagi had given final approval for the skills-based wage system
concept (not the actual amounts of wage increases). He further testified that Desjardin told
him that the program was going to be implemented “very shortly” but did not give him a 30
specific date that this would occur.15
Team Leader Martin
Martin, who has been a team leader for about 11 years, seemed ill at ease and often 35
hesitated in answering questions, particularly on cross-examination (when his face flushed).
He seemed to deliberately downplay his authority, particularly with respect to the disciplinary
actions in General Counsel’s Exhibit 7 that he signed on behalf of management. Martin was
markedly evasive on recross-examination when asked if Desjardin ever requested that he tell
employees something on Desjdardin’s behalf (“My memory’s not that good”),16 and to 40
describe his role in counseling employees on attendance. Finally, I find unbelievable his
testimony that he did not even hear about the posting of the union sign until after the instant

15 Tr. 2940.
16 Tr. 2384.
JD–41–16
10
trial was scheduled. Inasmuch as both he and Desjardin were not credible witnesses, I
consider other evidence in the record more reliable than their testimony.
Production Employee Lasko
5
As was Martin, Lasko seemed uneasy and somewhat reticent, but I recognize that he
was largely testifying about an unpleasant personal situation and will not consider this to
reflect negatively on his credibility.
Lasko’s testimony about the nature and extent of St. Hilaire’s July 9 threats, by phone 10
or text, was fairly consistent with the complaint investigation documents (R. Exh. 13).
Moreover, he generally seemed to answer questions spontaneously and without attempting to
calculate what he should say. Thus, when the General Counsel asked him to whom he
reports, he readily answered, “Jason Martin. . . . [H]e’s one of my bosses . . . . ever since I was
there,” with the title of floor manager,17 contrary to the Respondent’s position that Martin is 15
not a supervisor.
On two specific points, I credit St. Hilaire’s denials of the following. The first is
Lasko’s testimony that St. Hilaire threatened to slash his tires. Jones’ notes of her interview
with Lasko state, “I asked Jon if there was anything else that he was aware of that would 20
make him think Bill would carry out his threats . . . He has slashed tires. . . .” (id. at 2
(emphasis added)). There is no other mention of slashing tires in her notes.
Secondly, Lasko testified that during the course of the threatening communications,
St. Hilaire mentioned the pay increase and did not want him to say anything to St. Hilaire’s 25
ex-wife because she might go after him for more child support. St. Hilaire might have said
this to Lasko at some later date, but I highly doubt that he would have thought of this and
brought it up during the highly emotionally-charged time when he was verbally attacking
Lasko for betraying their friendship.
30
Production Employee Rucci
Rucci was an exceptionally enigmatic and unbelievable witness. Throughout his
testimony, he seemed to go out of his way to stress points and volunteer information that
supported the Respondent’s position, as though trying to curry favor with management rather 35
than to provide a truthful recitation of the facts. Related to this, as I will describe in more
detail below, he repudiated numerous statements antithetical to the Respondent’s case that he
made in a Board affidavit of January 16, 2015 to Board Agent Ablavksy (GC Exh. 40, which I
received over the Respondent’s objections).
40
Rucci confirmed that the signature on page six of the affidavit was his. He averred,
however, that he did not read the top of page six and did not read (nor was shown) the
previous five pages, because he was in a rush to pick up his child, and Ablavsky said that he

17 Tr. 1814.
JD–41–16
11
could sign the affidavit without reading it and showed him only the last page. Moreover, he
denied writing in the initials “AR” at the bottom right hand corner of each page.
He did concede that Ablavsky asked “a lot of questions,” that there was “[a] lot of
back and forth” because the restaurant was noisy, that he frequently asked her to repeat or 5
rephrase a question, and that “a couples of times when I said something, sometimes she would
read it back and then I would say no, that’s not what I said. And she’s like oh, I’m sorry, it
was loud. Can you rephrase it? Or can you tell me what you meant and stuff like that.”18
On re-direct examination, Rucci denied the following statements in his affidavit are 10
true:
(1) “Jason Martin hired me.”
(2) “Both [Martin and LePage] . . . have the authority to issue discipline.”15
In denying this, Rucci testified that Martin told employees “way back” that all
discipline went to HR or Desjardin.”19 I note that even though Rucci at one point testified
that he did not consider a team leader a supervisor, he later testified that Team Leader Martin
was “[m]anager to me. I thought, he was, you know, a manager.”2020
(3) Regarding the July 9 afternoon management meeting, “Co-workers said that they were
probably discussing the union signs.”
(4) As to the July 10 wage increase announcement, “Employees were suspicious that the 25
wage increase was in reaction to the union signs and believed that it was designed to
discourage forming a union.”
(5) After Jones called him into her office in the third week of July, “[Jones] asked me if I
knew who had posted the union signs.”30
When specifically asked if ever told this to Ablavsky, he replied no.
(6) A couple of days later, “I was approached by Jason Martin while working. He told me
that he heard from someone that I knew who posted the union[sic]. I told him I didn’t 35
know who did it. He asked me if I was sure but I affirmed that I did not know.”
When asked if he told this to Ablavsky, he replied no and, in response to Ms. Peters-
Hamlin’s question “So this is just made up?” answered “Yeah.”21
40

18 Tr. 2860, 2919, 2925.
19 Tr. 2883.
20 Tr. 2747, 2771.
21 Tr. 2893–2894. The General Counsel has not alleged this as a violation of Sec. 8(a)(1).
JD–41–16
12
(7) Regarding the incident between St. Hilaire and Lasko, “[A]ll production employees
indicated that Jon Lasko had also been threatening Bill St. Hilaire by text message.”
Ms. Peters-Hamlin: Did you tell that to Ms. Ablavsky?
5
Answer: No.
Ms. Peters-Hamlin: Did that ever happen?
Answer: No.2210
(8) Concerning the investigation into the vandalism of Lasko’s locker, “[A]pproximately
five employees were called into [Jones’] office and asked to bring our phones. This
included me. . . . ”
15
On the contrary, Rucci testified, he volunteered to bring it in.
(9) When Jones saw Rucci and others in her office, she asked to look at their phones and
said that “it would be suspicious if we didn’t hand over our phones.”
20
In denying that Jones said this, Rucci stated, “[S]he didn’t even ask. I offered my cell
phone to her.”23 However, he testified at another point, “She asked me if it was okay if I
could show her if I talked to Billy [St. Hilaire],” to which he replied yes, that he had nothing
to hide.24
25
(10) After McCoil and Rucci were written up by Jones for horseplay revealed during that
investigation, “McCoil said that if the written warnings don’t get removed from our
records he would be calling Board Agent Essie Ablavsky at the NLRB to report the
incident.”
30
Rucci specifically denied telling this to Ablavsky.
I do not credit Rucci’s testimony that he told Jones when she interviewed him in
August that he heard a rumor that St. Hilaire had offered to pay people $20 to vandalize
Lasko’s locker. Neither his affidavit nor Jones’ notes of her conversation with him (GC Exh. 35
13 at 3) show any indication that he said this, even though the “$20” appears in her notes of
conversations with other interviewees. Nor do I credit Rucci’s testimony that St. Hilaire
called him 3 week before Jones’ interviewed him and asked if he knew somebody who would
vandalize Lasko’s car. He admittedly failed to mention this to Jones, nor did he mention it in
his Board affidavit, and I suspect that this was concocted. 40

22 Tr. 2984.
23 Tr. 2898.
24 Tr. 2778.
JD–41–16
13
On the other hand, I do credit Rucci’s testimony that he was upset at Hoar and others
for taking food from the cafeteria on various occasions and that he brought this to the
attention of Jones and Martin prior to July. He expressed what appeared to be genuine
emotion when testifying thereon, and such testimony was consistent with his complaint about
Hoar’s taking coffee in July, as set out in his affidavit and Jones’ notes. 5
Whether statements in Rucci’s affidavit should be admitted as substantive evidence
hinges on the answers to the following:
(1) Are the statements reliable, considering both the contents of the affidavit as a10
whole and their consistency with other credible evidence of record?
(2) If so, are such statements admissible as nonhearsay under Federal Rule of
Evidence (FRE) Rule 801(d)(1)(A); alternatively, should such statements be
admissible even if they are not encompassed by that rule?15
(3) Has the Respondent had an adequate opportunity to address and rebut those
statements?
(1) Reliability20
I discredit Rucci’s attempt to disavow the affidavit by claiming that Ablavsky was
guilty of fabricating statements in the affidavit, of fraudulently putting his initials on the
pages, and of telling him to sign the statement without reading it. I do not believe that she
engaged in such unprofessional—possibly criminal—misconduct. Based on his own 25
description of their communications when she was typing up his statements, and their joint
efforts to accurately put down what he was saying, I am satisfied that the affidavit accurately
reflects what he in fact told her.
The dates of events described in the affidavit are consistent with the dates that I find 30
that they occurred, based on documents of record. His statements of what Jones asked him in
the third week of July about knowing who put up the sign and what she said to him in August
about wanting to see his cell phone are very similar to the testimony of McCoil, which I
credit. Moreover, his statements concerning Martin’s supervisory status are consistent with
the testimony of McCoil, Hoar, and St. Hilaire, and with documents of record. The affidavit’s 35
description of events is appropriately detailed in addressing events that occurred
approximately 6 months earlier.
Also noteworthy is that although many statements in his affidavit are adverse to the
Respondent and favor the General Counsel’s case, this is not always the case. Thus, Rucci 40
corroborates Jones’ account of what he related to her regarding what he observed about Hoar
taking coffee. Furthermore, even though Rucci states in the affidavit that many employees
suspected that St. Hilaire had posted the union sign, he mentions nothing anywhere in the
affidavit about actual or perceived union activity by Hoar.
45
JD–41–16
14
Based on all of the above factors, I find that Rucci’s affidavit is reliable.
(2) FRE Rule 801(d)(1)(A)
Rule 801(d)(1)(A) provides that a prior statement of a witness is not hearsay if:5
The declarant testifies at trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the
declarant’s testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a declaration. . . .10
The Board in Alvin J. Bart & Co., 236 NLRB 242, 242 (1979), enf. denied on other
grounds 598 F.2d 1257 (2d Cir. 1979), strongly suggested that sworn pretrial affidavits may
be regarded as depositions that fall within the exception to the hearsay rule (“And there is
good reason to treat them as such because there is no requirement under the Federal Rules that 15
the prior statement embodied in a deposition be subject to cross-examination when made.”).
In P*I*E* Nationwide, 297 NLRB 454,455 (1989), the Board discussed the holding in Bart
and also implied support for the proposition that sworn pretrial affidavits fall under the
hearsay exception of Rule 801(d)(1)(A):
20
The statements discussed in Bart were of such high evidentiary value that the
Board stated that they were arguably not even hearsay, as they were given
under oath and the declarant was subject to cross-examination at the hearing
concerning them.
25
The Congressional subcommittee that considered proposals to permit broader
substantive use of prior inconsistent statements, which ultimately led to the adoption of Rule
801(d)(1)(A), stated that the legislative purpose of this was “based largely on the need to
counteract the effect of witness intimidation.” H.R. Commn. Print at 26–27 (June 28, 1973),
included in the Hearings on Proposed Rules of Evidence before the H.R.Subcomm. on 30
Criminal Justice of the Commn. On the Judiciary, 93rd Cong. (1973) at 170–171, reprinted in
1974 U.S.C.C.A.N. 7075, 7086–7087.
As Judge David Goldman aptly observed in Conley Trucking, 349 NLRB 308 (2007),
enfd. 520 F.3d 629 (6th Cir. 2008), in determining whether to admit portions of a witness’ 35
Board affidavit as substantive evidence:
The danger of witness intimidation is particularly acute with respect to current
employees—whether rank and file, supervisory, or managerial—over whom
the employer, by virtue of the employment relationship, may exercise intense40
leverage. Not only can the employer fire the employee, but job assignments
can be switched, hours can be adjusted, wage and salary increases held up, and
other more subtle forms of influence exerted. . . . [D]ue to the “peculiar
character of labor litigation[,] the witnesses are especially likely to be inhibited
by fear of the employer’s . . . capacity for reprisal and harassment.” Roger J. 45
JD–41–16
15
Au & Son, Inc. v. NLRB, 538 F.2d 80, 83 (3d Cir. 1976). Accord: NLRB v.
Hardeman Garment Corp., 557 F.2d 559 (6th Cir. 1977).
Here, Rucci’s transparent and strained attempt to give testimony favorable to the
Respondent, his flat-out repudiation of numerous portions of his affidavit that could be 5
considered unfavorable to the Respondent, and his preposterous attempts to deny
responsibility for the statements therein on the basis that the Board agent fabricated them, lead
me to suspect that Rucci was intimidated from giving truthful testimony by an agent or agents
of the Respondent, either intentionally or unintentionally. I can think of no other conceivable
reason for his incredible about-face. 10
In light of expressed Congressional intent, especially in the context of the employee
witness in a ULP hearing, and the Board’s Bart decision, I conclude that the hearsay
exception in FR 801(d)(1)(A) should apply.
15
However, recognizing that the law on this point is unsettled, I will address in the
alternative whether the affidavit, if considered hearsay, should nonetheless be received.
Section 10(b) of the Act, 29 U.S.C. §160(b), provides that ULP proceedings “shall, so
far as practicable, be conducted in accordance with the rules of evidence applicable in the 20
district courts of the United States.” In Bart, above at 242, the Board cited Section 10(b) and
specifically considered and rejected the proposition that pretrial affidavits are necessarily
inadmissible on the grounds of hearsay: “We would be reluctant to adopt a rule . . . which
mechanically excludes evidence, regardless of its intrinsic reliability, because it is technically
hearsay. Administrative agencies ordinarily do not invoke a technical rule of exclusion but 25
admit hearsay evidence and give it such weight as its inherent qualities justifies.” The Board
noted that in administrative proceedings, there is discretion to receive in evidence and rely on
hearsay as substantive evidence. Id. at 243.
In St. John Trucking, 303 NLRB 723, 723 fn. 1 (1991), citing Bart, the Board rejected 30
the specific exception that the judge erred in crediting an employee’s affidavit over his
testimony at the hearing, stating that “we note that this action is well within settled Board
precedent.” In that case, the employee-witness, as did Rucci, disavowed statements in his
affidavit adverse to the respondent, testified that he did not read the affidavit before he signed
it, and claimed that the affidavit was inaccurate. The judge noted in particular that, as here, 35
the affidavit on its face contained an acknowledgement by the witness that he read the
affidavit before signing it. Id. at 726.
In this respect, in Conley v. NLRB (520 F.3d at 639–641), the Sixth Circuit Court of
Appeals stated that the germane inquiry in deciding whether to admit portions of an 40
employee’s affidavit was:
whether the relaxation of the Federal Rules of Evidence by the administrative
law judge was reasonable under the circumstances and limited in its
application to the practicalities of the situation. Here, the administrative law 45
JD–41–16
16
judge’s first-hand observations of Jeremy Thompson’s demeanor raised a
concern that the company, wielding superior economic power, had intimidated
Thompson at a time when, as an employee, he was still dependent upon the
company for his livelihood. The judge clearly found that, without adoption of
a relaxed evidentiary rule to permit a more complete picture of the situation 5
faced by Conley Trucking’s workers, there was a distinct possibility that
company officials would succeed in suppressing evidence otherwise available
for consideration in determining whether an unfair labor practice had occurred.
As in Conley Trucking, the fact that the Respondent objected to the use of the affidavit 10
is not controlling. Indeed, to allow the Respondent in the circumstance presented to preclude
use of the affidavit as substantive evidence because it is hearsay would lead to the untenable
result of turning the search for truth on its head and reward the Respondent for what I
perceive to have been witness intimidation.
15
Accordingly, I conclude that statements in the affidavit should be admissible even if
they are considered hearsay.
(3) The Respondent’s Opportunity to Defend
20
The Respondent had a full opportunity to address and rebut all of the pertinent
statements in Rucci’s affidavit that he denied.
Conclusion: Based on all of the above, statements in Rucci’s affidavit are
appropriately treated as substantive evidence.25
The General Counsel’s Witnesses
Hoar
30
Hoar appeared straightforward, he testified consistently and in detail, and he had a
good recall. However, his testimony was not flawless.
As to the alleged theft of coffee, the Respondent did not call Rodriguez, so I will not
consider hearsay evidence of what he witnessed, nor do I believe that Rucci was a trustworthy35
witness on the stand. However, for reasons that I have stated, I am confident that the affidavit
Rucci gave to the Board was reliable, as opposed to his testimony.
In the affidavit, Rucci’s account of observing Hoar take coffee out of the cafeteria and
place it in his car is detailed and I can think of no reason why Rucci would have invented such40
a story out of thin air, particularly when he told Jones that Rodriguez was also a witness, and
Rodriguez confirmed his account. Thus, one would have to conclude that both Rucci and
Rodriguez conspired to falsely accuse Hoar. Such a conclusion is too far-fetched to be
plausible. I therefore credit the account in Rucci’s affidavit and, further, find that he did
report that to Jones. 45
JD–41–16
17
Even had Rucci and Rodriguez lied, it is what they reported to Jones, and
management’s reaction, that are determinative of whether Hoar’s termination did or did not
violate the Act.
5
St. Hilaire
In a rather unusual scenario, St. Hilaire’s only testimony was as an adverse witness
under Section 611(c); the General Counsel did not call him in her case in chief or ask him any
questions after his 611(c) testimony.10
St. Hilaire was poor on recalling specific dates and had a tendency to rush when
giving his answers, sometimes providing more information than necessary. He also exhibited
something of an aggressive personality. On the other hand, his testimony about what he told
Lasko by text, and then Jones and Desjardin when he met with them, was appropriately 15
detailed and internally consistent. Moreover, he seemed candid, as reflected by the fact that
his testimony about what he told Lasko was stronger than the words contained in Jones’
complaint investigation (“I’m going to kick your butt” and similar words.)25
Because of my previously-stated issues with Jones’, Desjardin’s, and Lasko’s 20
credibility concerning the events surrounding St. Hilaire’s termination, I credit his accounts of
what occurred over theirs. This includes crediting his unrebutted testimony that Lasko also
threatened him in their telephone communications on July 9.
Production Employee McCoil25
McCoil testified in a low key but straightforward manner and answered questions as
readily on cross-examination as he did on direct. He did not appear to be trying to slant his
testimony against the Respondent, as reflected by his testimony that he had heard about a
possible wage increase for a little over a year before it was announced. 30
Significantly, McCoil’s testimony that Jones called him into her office about a week
after the sign was posted, and asked him if he knew who had put it up, was remarkably similar
to what Rucci stated in his affidavit. The same holds true for what Jones asked them during
her investigation of the vandalism to Lasko’s locker. On these matters, I credit McCoil and 35
what Rucci averred in his affidavit over Jones, reiterating that she was not a generally
believable witness.
For all of the above reasons, and taking into account that McCoil was terminated, I
also credit him in general and where his testimony diverged from that of management’s 40
witnesses.

25 Tr. 2631.
JD–41–16
18
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents, and stipulations, as well as the posttrial briefs that the General Counsel 5
and the Respondent filed, I find the following.
I will first address the allegations that certain written promulgations of the Respondent
violate the Act on their face: the offer of free legal assistance from the Respondent’s counsel,
and certain provisions in the employee handbook. After that, I will address facts pertaining to 10
the other allegations.
Offer of Free Legal Assistance
Board Agent Ablavsky, who was investigating the charges in the instant matter, called 15
Rucci on about November 4 and asked him his knowledge of who had posted the union sign.
The next day, Rucci went to see Jones and expressed to her concerns about answering
Ablavsky’s questions. On November 6, Jones sent an email to Attorney Peters-Hamlin, in
which she described her conversation with Rucci and asked for counsel’s advice.26
20
On November 6, the Respondent announced and disseminated to employees a
“Statement to Employees about Legal Services.”27 Here is its full text:
 We wanted to let our employees know that a college student named Essie, who is
interning at the NLRB, has called one of our employees yesterday and stated that 25
she plans to call other employees.
 We have engaged an attorney to represent our company in relation to this matter.
 We understand that most employees would feel more comfortable having an 30
attorney available to them to represent them in relation to investigatory questions
being asked by the NLRB, and therefore we have agreed to make our attorney
available to all employees who want the attorney to represent them in such an
investigation. The services of the attorney, Kristan Peters-Hamlin, will be
provided free of charge to our employees, as the company will pay for her 35
services.
 Certainly, having an attorney available to you to participate in such an interview
would make it less likely that your words could be misinterpreted or misquoted.

26 GC Exh. 37. The Respondent’s counsel provided this to the General Counsel but objected to its receipt
on the grounds that her disclosure of the document was the result of an “inadvertent error” (see Federal
Rule of Evidence Rule 502(b)), and because only the client could waive the privilege. I told her that I
would reconsider my ruling admitting it if she provided me in her brief with persuasive authority in
support of her position. Her brief does not address the issue.
27 GC Exh. 14.
JD–41–16
19
 We do not know which of you will be called by the NLRB, or whether any of you
will be. However, if you are called, and you inform the NLRB that you are
represented by counsel and would like your counsel to participate in any such call
or interview, it is the obligation of the NLRB to stop the interview to allow you to 5
have your counsel present. If the NLRB does not allow you to have your counsel
present, you can pause the interview to allow yourself the requested opportunity to
get your counsel to participate before proceeding further.
 We thought you should all know about this free service the company is affording 10
you and we encourage you to take advantage of it.
Kristan Peters-Hamlin[sic] contact number is 203-504-2050
Analysis and conclusions15
The Respondent (R. Br. at 29) cites two circuit court of appeals cases in support of its
position that its offer of free legal services did not violate Section 8(a)(1). The first is Florida
Steel Corp. v. NLRB, 587 F.2d 735 (5th Cir. 1979), in which the company advised employees
that they had a right to consult with counsel before talking with the agent and that the 20
company could recommend an attorney if the employee so desired. Nothing was said about
the company paying any of the costs. The second is NLRB v. Garry Mfg., 630 F.2d 934 (3d
Cir. 1980), which involved two letters. The first explained that employees were not obligated
to talk to a Board agent or sign anything; the second, issued after a ULP charge, advised
employees that they were free to talk to a Board agent and explained the agent’s role. Neither 25
letter mentioned attorney representation.
In any event, the Board found those cases distinguishable in S. E. Nichols, 284 NLRB
556 (1987), enfd. 862 F.2d 952 (2d Cir. 1988), where the employer’s agent told employees
that “if [they] needed any protection [when they met with Board agents] he would get his 30
lawyer to sit in on the meeting” and could see the company’s attorney if they needed help in
connection with anticipated requests by Board agents for employee statements.
The Board held:
35
Essentially, telling employees that they might need protection in an action
against the Respondent would tend to dissuade them from cooperating with the
Board. Secondly, here the Respondent did not recommend obtaining
independent counsel but offered only its own attorney, thus, in the judge's
words, "temptingly proposing a serious conflict of interests." 40
284 NLRB at 559 fn. 9.
JD–41–16
20
The Second Circuit Court of Appeals, which has jurisdiction over this case, affirmed
the Board’s finding that the employer’s statements violated Section 8(a)(1). The court
specifically cited and distinguished Florida Steel Corp., stating:
[T]he company objects to a finding that it violated the Act by telling 5
employees that they could receive the advice of the company’s attorney in
connection with interviews by Board investigators. Nichols claims that it was
simply advising workers of their right to counsel. The ALJ discounted this
explanation because the advice seems to imply the need for protection and
would have the effect of dissuading employees from cooperating with the 10
Board’s investigation since the “most fearless employee would find it difficult
to provide the Board with information against his employer when he was
accompanied and being ‘advised’ by the employer’s counsel.” The Board
agreed, and so do we.
15
862 F.2d at 959. See also KFMB Stations, 349 NLRB 373 (2012) (Board affirmed judge’s
finding that offering free representation by the respondent’s counsel to employees who had
been subpoenaed during a Board-conducted investigation violated the Act).
In sum, I conclude that the offer here was improper. It clearly suggested to 20
employees’ that their words would be misinterpreted or misquoted by the Board agent unless
they had an attorney present, and that they needed an attorney, thus discouraging them from
cooperating in the investigation. More egregiously, it sought to inject the Respondent’s
counsel into the Board’s interviews with employees—gutting the confidentiality of Board
affidavits and compromising the integrity of the Board’s investigatory process. Thus, the 25
presence of the Respondent’s counsel would discourage employees from giving honest
answers adverse to the Respondent and would reveal to the Respondent the protected
activities of the witness and of other employees.28
I therefore conclude that this offer of free legal assistance coerced employees and 30
violated Section 8(a)(1) of the Act.
Handbook Provisions
The August 2014 handbook (GC Exh. 8) contains the following ten rules that the 35
General Counsel contends are coercive. A number of changes in these rules were made in the
September 2015 revised handbook (R. Exh. 23). I have starred the four rules that were

28 In this regard, Attorney Peters-Hamlin would face a conflict of interest situation inasmuch as she would
essentially occupy the position of a dual-agent; her fiduciary duties to the Company and her fiduciary
duties to the employee witness might well conflict, particularly as to what matters she could disclose to
each client without running afoul of attorney canons of ethics. See Cinema 5, Ltd. v. Cinerama, Inc.,
528 F.2d 1384,1386 (2d Cir. 1976) (an attorney owes a client the “fiduciary duty of undivided loyalty
and allegiance.”).
JD–41–16
21
eliminated. I will not venture to render an opinion on whether modifications to other rules
cure any of their defects. Number references track their order in the complaint.
Two of the rules expressly prohibit employees from discussing their pay with other
employees:5
*(3) Code of Ethics and Conduct (p. 15): “Under no circumstances may an
employee . . . [d]iscuss [his or her] pay rate with other employees, or ask fellow
employees about their pay rate.”
10
*(5) Payment of Wages (p. 21): “Pay rates are personal and confidential and
are not to be shared with fellow employees.”
Three limit what kind of language can be used on social media:
15
(4) Code of Ethics and Conduct (p. 16): “Under no circumstances may an
employee . . . [p]ost financial, confidential, sensitive or proprietary information about
the Company, clients, employees or applicants on social media. Additionally,
employees may not post obscenities, slurs or personal attacks that can damage the
reputation of the Company, clients, employees or applicants. . . .”20
(8) Electronic Communication and Internet Use (p. 39), prohibiting
employees from “using disparaging, abusive, profane or offensive language; creating,
viewing or displaying materials that might adversely or negatively reflect upon USCC
or be contrary to USCC’s best interests. . . .”25
(10) Social Media--Acceptable Use (p. 40): “Employees may not post
obscenities, slurs or personal attacks that can damage the reputation of the company,
clients, employees or applicants.”
30
The following four rules concern confidentiality:
(1) Welcome (p. 3): “This handbook and the information in it should be treated
as confidential. No portion of this handbook should be disclosed to others, except
USCC employees and others affiliated with USCC whose knowledge of the 35
information is required in the normal course of business.”
(2) Code of Ethics and Conduct (p. 15): “Under no circumstances may an
employee . . . prematurely disclose confidential and proprietary information to any
unauthorized person.”40
(6) Confidentiality (p. 36), relating to clients and other parties with whom the
Company does business: “It is our policy that all information considered confidential
will not be disclosed to external parties or to employees without a ‘need to know.’ If
JD–41–16
22
an employee questions whether certain information is considered confidential, he/she
should first check with his/her immediate supervisor.”
*(9) Social Media--Acceptable Use (p. 40): “Employees may not post
financial, confidential, sensitive or proprietary information about the company, clients, 5
employees or applicants.”
*The final rule (7) under Confidentiality (p. 36) is: “All inquiries from the
media must be referred to Human Resources.”
10
Jones testified that the language in rule 5 prohibiting employees from discussing their wages
was removed from the electronic form of the handbook in January 2015, and that the
Respondent made certain at the time that every employee got a revised page 21 and signed off
on it. However, the Respondent provided no documents to substantiate these claims or a valid
explanation of why they could not be produced. I again draw an adverse inference against the 15
credibility of Jones’ testimony from the Respondent’s failure to provide corroborating
documents. See PCC Fabricators, Inc., supra; Martin Luther King Sr. Nursing Center, supra.
I also note that neither of the current employees whom the Respondent called as witnesses
(Lasko and Rucci) offered any testimony supporting her claim. Accordingly, I do not find as
a fact that the Respondent did this. Jones also testified that the revised page 21 was read to 20
employees at a morning meeting, but she gave no date or time frame, thus failing to lay a
proper foundation.
Analysis and Conclusions
The leading decision in this area is Lutheran Heritage Village-Livonia, 343 NRB 646, 25
646 (2004), citing Lafayette Park Hotel, 326 NLRB 824, 825 (1998). The Board therein held
the following.
An employer violates Section 8(a)(1) when it maintains a work rule that reasonably
tends to chill employees in the exercise of their Section 7 rights. In determining whether a 30
challenged rule is unlawful, the Board must give the rule a reasonable reading, refrain from
reading particular phrases in in isolation, and not presume improper interference with
employee rights. The first inquiry is whether the rule explicitly restricts Section 7 activities;
if so, the rule is unlawful. If the rule does not explicitly restrict Section 7 activity, it violates
the Act if one of the following is shown: (1) employees would reasonably construe the 35
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
I will first address the impact of the Respondent’s elimination of some of the rules in
September 2015. Under Pasavant Memorial Area Hospital, 237 NRB 138, 138–139 (1978), 40
an employer may relieve itself of liability from unlawful conduct by (1) repudiating that
conduct, if the repudiation is timely, unambiguous, and specific to the coercive conduct; (2)
adequately publishing the repudiation to the employees; (3) not engaging in any further
proscribed conduct; and (4) giving employees assurances that in the future, the employer will
not interfere with the exercise of their Section 7 rights.45
JD–41–16
23
The Respondent’s conduct here failed to meet the Pasavant standard for repudiation.
First, the revisions were untimely. In Passavant, the Board found that a repudiation made just
prior to the issuance of the complaint was untimely; it follows that revisions made after
issuance of the complaint are similarly untimely. Lily Transportation Corp., 362 NLRB No. 5
54 (2015), citing Fresh & Easy Neighborhood Market, Inc. v. NLRB, 468 Fed. App. 1 (D.C.
Cir. 2012) (unpublished decision).
Secondly, there is no evidence that the Respondent distributed the revised handbook to
all employees. 10
Thirdly, even if the Respondent distributed the revised handbook to employees, the
Respondent took no steps to admit any wrongdoing or to assure employees that, going
forward, it would not interfere with the exercise of their Section 7 rights. See Boch Honda,
362 NLRB No. 83, slip op. at 1 fn. 3 (2015); Lily Transportation, above, slip op. at 1; 15
Intermet Stevensville, 350 NLRB 1349, 1350 fn. 6, 1383 (2007). As the Board stated in
Casino San Pablo, 361 NLRB No. 148, slip op. at 6 (2014) (fn. omitted), “[T]he Respondent
did not effectively repudiate the unlawful handbook rules simply by issuing a revised
handbook subsequently that deleted the rules.”
20
Accordingly, I will now address the rules contained in the August 2014 handbook,
noting that the elimination of certain rules affects the remedy.
Rules prohibiting employees from discussing their pay rates
25
Board law is well settled that an employer violates Section 8(a)(1) of the Act in a
nonretail setting by maintaining a rule prohibiting employees from discussing their earnings.
See, e.g., Double Eagle Hotel & Casino, 341 NLRB 112 (2004), enf. granted as modified, 414
F.3 d 1249 (10th Cir. 2005); Fredericksburg Glass & Mirror, Inc., 323 NLRB 165 (1997).
Therefore, these rules expressly restrict employees’ Section 7 rights and are hence unlawful. 30
Rules limiting permissible language on social media
As in Costco Wholesale Corp., 358 NLRB 1100, 1101 (2012), each of these rules
“clearly encompasses concerted communications protesting the Respondent’s treatment of its 35
employees” and contain nothing “even arguably suggesting that protected communications
are excluded from the broad parameters of the rule.” Employees reading these rules would
reasonably assume that the Respondent would regard statements of protest or criticism as
“damaging” the Company’s reputation or “adversely or negatively reflecting” upon it. See
Karl Knauz Motors, Inc., 358 NLRB 1754, 1754 (2012). Therefore, employees would 40
reasonably construe them as prohibiting Section 7 activity.
JD–41–16
24
Rules concerning confidentiality
Rules prohibiting employees from disclosing “confidential” information are
unlawfully broad if they could “reasonably be construed by employees to prohibit them from
discussing information concerning terms and conditions of employment, including wages….” 5
University Medical Center, 335 NLRB 1318, 1320 (2001); see also Flamingo Hilton-
Laughlin, 330 NLRB 287, 288 (1999).
Numbers 1 and 9 clearly could encompass information about employees’ pay and
other benefits, and numbers 2 and 6 contain such vague terms (“prematurely,” “unauthorized 10
person,” “confidential,” and “need to know”) that an employee would have no way of
knowing if and when he or she could discuss terms and conditions of employment. Nothing
in any of them clarifies that they do not apply to the employees’ right to discuss such
information. Thus, all of these rules would reasonably tend to chill employees in the exercise
of their Section 7 rights.15
Rule regarding media inquiries
It has long been settled that employees seeing to “improve terms and conditions of
employment or otherwise improve their lot” have the Section 7 right to seek the support for 20
their cause “outside the immediate employee-employer relationship.” Eastex, Inc. v. NLRB,
437 U.S. 556, 565–566, 569–570 (1978); see also Misericordia Hospital Medical Center v.
NLRB, 623 F.2d 808 (2d Cir. 1992). This protection extends to a variety of communications
with third parties, including appeals to the press. For example, in Trump Marina Associates,
LLC, 354 NLRB 1027 (2009), affd. 355 NLRB 585 (2010), enfd. 435 F.3d Appx. 1 (D.C. Cir. 25
2011), the Board found unlawful a rule prohibiting employees from releasing statements to
the news media without prior authorization. And, in Crown Plaza, Hotel, 352 NLRB 382,
386 (2008), a rule prohibiting employees from talking to the press was found to be unlawfully
broad because it could reasonably be construed as “prohibiting all employee communications
with the media regarding a labor dispute;” or at the very least, the rule could be viewed as 30
“ambiguous.”
Although this rule relates to communications initiated by the media, rather than to
employee-generated contact, the same rationale is appropriate. Indeed, in light of the
importance of allowing employees unimpeded access to public forums, applying different 35
standards would be illogical and anomalous.
In Eschostar Technologies, LLC, 2012 WL 4321039 (2012), Judge Clifford H.
Anderson addressed a rule similar to this one. Even though his decision is not precedential, I
find his reasoning persuasive and adopt it here. He held that an instruction to employees to 40
direct media inquiries to the corporate communications department was overbroad insofar as
it did not clarify that employees might also choose to speak to the inquiring media about labor
disputes on their own behalf. Similarly, this rule is susceptible to the reasonable
interpretation that it bars Section 7 activity.
45
JD–41–16
25
Accordingly, I conclude that all of the ten cited rules are coercive and violate Section
8(a)(1).
The Respondent’s Business Operation
5
The Respondent is a subsidiary of Miyoshi Group, an international conglomerate
headquartered in Japan. It is a Delaware corporation with an office and place of business
located in Dayville, Connecticut (the facility), where it engages in the manufacture of
cosmetic products. The Respondent has admitted jurisdiction as alleged in the complaint, and
I so find. 10
The facility consists of four buildings in an industrial complex, at three of which
employees work full time. There are five designated plants, with plant 5 physically located
within plant 1. Management offices and the cafeteria are in plant 1; the other plants have
smaller lunch or coffee rooms.15
President Takagi is the highest-level management official at the facility, and he reports
to Chairman Miyoshi in Japan. At all times material, HR Director Pockoski reported to
Takagi, and HR Manager Jones reported to her.
20
In July, the facility had about 65–70 employees, of whom Manager Desjardin
supervised about 23 production or manufacturing employees, and five shipping and receiving
employees. He had two salaried team leaders, Martin and LePage, assisting him in the
production department.
25
On a daily basis, management regularly held 8 a.m. meetings in the training room with
all employees, for reports by the various departments. Afterward, Desjardin sometimes
continued meeting with the employees who reported to him. On most days, meetings of
management took place in the main conference room at 4:30 p.m.
30
Martin’s Status under Section 2(11)
As previously noted, the Respondent first admitted Martin was a supervisor, then later
amended its answer at hearing to deny it.
35
Section 2(11) of the Act defines “supervisor” as
any individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their 40
grievances, or effectively recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical
nature but requires the use of independent judgment.
JD–41–16
26
Possession of any one of the indicia is sufficient to make its possessor a supervisor.
Sheraton Universal Hotel, 350 NLRB 1114, 1115 (2007); Avante at Wilson, Inc., 348 NLRB
1056, 1056 (2006). The burden of proving supervisory status falls on the party asserting it.
NLRB v. Kentucky River Community Care, 532 U.S. 706, 711 (2001).
5
In General Counsel’s Exhibit 7, the disciplines issued from January 1, 2011, to the
date of the trial, one of the forms used was entitled Employee Warning Notice. In that form,
the supervisor’s name is typed in at the top, and there is a box for “management signature.”
On three of them, Martin’s name alone is given, and he signed as the management
representative; on a fourth, Desjardin, Martin, and LePage are listed (LePage signed it for 10
management). On two other disciplines, Martin signed as “production supervisor.” Martin
also signed as the supervisor on the written warning that St. Hilaire received on January 31,
2011.29 No other supervisor’s or manager’s name appears in those disciplines.
Although evasive, Martin conceded that he initiated the disciplines that he signed, that 15
there was a “good chance” that he was the one who prepared the narratives contained in them,
and that he presented them to employees after receiving approval from HR.30 The
Respondent cited no instance in which HR or other management disapproved Martin’s
recommended discipline. Consistent with these written documents, Rucci stated in his
affidavit that that both Martin and LePage had authority to issue discipline. 20
Despite the obvious efforts of Martin and members of management to minimize his
role in disciplining production employees, I find that he had the authority to issue discipline
on his own or, at the very least, to effectively recommend it. Accordingly, I find that he was a
supervisor within the meaning of Section 2(11) and an agent within the meaning of Section 25
2(13).
In the alternative, the testimony of production workers called by both the General
Counsel and the Respondent abundantly reflects that they uniformly and reasonably believed
that Martin reflected company policy and spoke and acted for management. Accordingly, he 30
had agency status under Section 2(13) regardless of whether he was or was not in fact a
supervisor within the meaning of Section 2(11). See Albertson’s, Inc., 344 NLRB 1172, 1172
(2005); Pan-Oston Co., 336 NLRB 305, 306 (2001); Waterbed World, 286 NLRB 425, 426–
427 (1987), enfd. 974 F.2d 1329 (1st Cir. 1992).
35
Events prior to July 2014
Hoar’s and St. Hilaire’s Employment
For many years, the Company utilized staffing agencies to furnish temporary 40
production employees. Typically, if the employees were good workers, they were hired as

29 GC Exh. 27 at 11.
30 Tr. 2373–2376.
JD–41–16
27
permanent employees after they completed 520 hours (after 520 hours, the staffing agency did
not charge a fee).
In mid-October 2013, Advance Staffing sent Hoar to the Company to be interviewed.
He met with Martin and LePage. Shortly afterward, Advance Staffing told him to report there 5
the following Monday. On about March 17, he was notified of his conversion to permanent
employee status, as a production operator.31 The Respondent’s counsel represented at trial
that the sole reason that Hoar was terminated was for taking coffee from the cafeteria, on
about July 15,32 although she expanded this in her brief to alleged theft of both coffee and
soup.”3310
St. Hilaire worked for the Respondent for approximately 9 years and was either first or
second in seniority among the 23 or so production employees.34 The sole reason that the
Respondent advances for St. Hilaire’s termination was his threats of physical violence to
Lasko on about July 8.15
Prior to July, Hoar and St. Hilaire talked in favor of unionization to other production
employees at work, but there is no direct evidence of management knowledge of this.
Employee Wage Increase20
As a result of changes that had occurred in the nature of the business, resulting in more
skills being required of production employees, Managers Desjardin and Tiebout first
discussed in early 2013 the formulation of a skill-based structure for hourly employees.
25
The record does not reflect that management took any further steps along these lines
until after Jones was hired in March 2014. Shortly after her arrival, she prepared a self-
review for the period from March 10—December 31,35 which included a listing of her goals
for that time frame. She deemed three items as “high” priority, and six items as “medium”
priority. Among the latter was “[r]eview compensation structure for production hourly 30
employee,” in order to make the pay structure more competitive to lower turnover and to
begin the culture change from entitlement to merit/skill based pay. She would research
competitive rates, define roles and skill levels, and recommend structure. The time frame was
completion by August 31 for implementation in December.
35
The General Counsel does not dispute that the Respondent was contemplating
changing the wage structure prior to July. However, management representatives were not
consistent, definitive or credible on the events leading up to implementation of the wage
increase; and documents pertaining thereto were introduced in a piecemeal and confusing

31 See GC Exh. 34.
32 Tr. 552.
33 R. Br. at 20.
34 Tr. 1815 (Lasko).
35 GC Exh. 10.
JD–41–16
28
manner and utterly fail, collectively, to show that final wage rates were determined prior to
the week of July 7.
Antiharassment Policy
5
In around April,36 the Respondent promulgated an antiharassment policy, 37 on which
it trained both supervisory and nonsupervisory employees. It states that harassment will not
be tolerated and describes three categories of prohibited conduct: discrimination, harassment
(including sexual), and sexual harassment. The discipline to be imposed for violating the
policy is dependent on (i) the severity, frequency and pervasiveness of the conduct, (ii) prior 10
complaints made by the complainant, (iii) prior complaints made against the respondent, and
(iv) the quality of the evidence (first-hand knowledge, credible corroboration, etc.).
Events the Week of July 7
15
July 7 – 8
General Counsel’s Exhibit 39 consists of the following emails. On the morning of
Monday, July 7, Desjardin sent an email to Tagaki, “checking to make sure I understood you
correctly in going ahead with the proposed raises I had requested earlier” regarding three 20
employees.
On the morning of July 8, Tagaki responded with an email to Desjardin and Jones,
stating, “Can we discuss the operation new job skill/level matrix and as below salary rate this
week? Please set ups[sic]meeting.” Desjardin replied in part, “Judy, would you please send 25
me what you had sent to Takagi san in regards to the levels/rate of pay? I believe that you
had made changes to my proposed numbers and want to review them tonight at home so I can
add to the discussion.” Finally, Jones told Tagaki and Desjardin, “Yes, let’s meet tomorrow
(7/9) as an add-on to our 2 pm meeting. Dennis, I’ve attached the skill set matrix and a
spreadsheet showing the impact of the recommended rates.”30
On the evening of July 8, between 9 and 10 p.m., Hoar and St. Hilaire posted the
following sign38 at the doors to the two entrances at plant 1 used by production employees
(the main entrance) and office employees, respectively:
35
WOULD YOU LIKE?
*BETTER WAGES
*BETTER BENEFITS
*BETTER WORKING CONDITIONS
VOTE UNION40
YES”

36 See GC Exh. 12 at 9.
37 GC Exh. 12 at 1–8.
38 GC Exh. 16 at 2.
JD–41–16
29
July 9
When Manager Tiebout arrived at between 6:30 and 7 a.m., he saw the union sign at
the outside door to the main entrance. He took it down and brought it to Jones after she 5
arrived to work that morning. Moments later, she and Tiebout brought it to Takagi. Tiebout
told them that another such sign had been found. Jones told Takagi that Tiebout or someone
else had investigated to see if other nearby plants had received similar postings, and they had
not. Either then, or shortly later, Takagi asked Jones to scan and send the sign to him by
email. 10
At 8:41 a.m., Jones sent Takagi an email with the subject, “Sign on front door 7-9-
14,”39 with the sign attached.
At 9 a.m., Jones sent Tagaki another email,40 stating, “Please note–we have not been 15
targeted yet. And I firmly believe we won’t be targeted if we take action this week on the
wages, announce the coming sick pay and vacation enhancements, and stay vigilant on
watching over the employees in the hottest areas of the plant(s).” She attached a page from
HR Specialist entitled “Unions in the spotlight: What employers can and can’t do.”
20
The subject of the union sign was brought up at the 4:30 p.m. management meeting
that day. The only witness who testified about it was Tagaki and, as earlier noted, I discredit
his testimony that no one asked any questions about it and that there was no discussion about
it, as well as his testimony that the subject was never brought up at any other meetings.
25
Another management meeting took place that day at 2 p.m. to discuss the skill set
matrix, levels/rates of pay, and the impact of the recommended rates.41 The wage rates were
evidently discussed and finalized at that meeting. Thus, General Counsel’s Exhibit 38, which
the General Counsel received from the Respondent pursuant to subpoena, contains the final
rate adjustments for production and other employees. At the top of page 1 is the handwritten 30
notation, “7/9 after mtg.,” and at the top of page 3 is the handwritten notation, “7/9 changes.”
The Respondent’s counsel refused to stipulate whose handwriting that is, but I have to
logically assume that someone from management wrote in those notations and that they
accurately reflect that changes were made that day.
35
Hoar told other employees that morning that he had posted the union sign, and Rucci
heard many of his coworkers say that day that St. Hilaire had posted them.42

39 Id. at 1.
40 GC Exh. 17.
41 GC Exh. 39.
42 GC Exh. 40 at 2.
JD–41–16
30
July 10
At a regular morning meeting, management announced to employees the contents of
General Counsel’s Exhibit 18, along with a power point presentation:43
5
(1) Skill level definitions.
(2) Approved pay rates effective July 7.
(3) Changes in compensation and benefits, including introduction of a paid sick10
time benefit; an enhanced paid vacation time benefit; replacement of monthly
sales goal and gas incentive programs by automatic pay increases; and for the
production and shipping/receiving crew, a new pay structure based on skill set.
The changes in pay rates would be reflected in the pay check next Thursday,
the 17th [July 17]. 15
The increased remuneration applied to both rank-and-file hourly employees and
supervisory employees.
July 1120
Tagaki sent an email to Chairman Miyoshi, with the subject line, “Sign on front door
7-9-14 and Employee Code of Conduct.”44 He began by describing the circumstances in
which the two signs were discovered. In the second paragraph, he stated that either an outside
labor union organization or an “insider” was responsible, with the first possibility being 25
“extremely low due to the content of the attachment, its geographic particularity and the fact
that no attachments were found on a business-wide level at USCC or in other companies.”45
In the third paragraph, Tagaki turned to the subject of the wage rate changes and stated
that timing was “perfect.” He next described planned improvements to the air conditioning 30
systems in the plants. In the concluding sentence, he stated, “The contents of the attachment,
although this was a coincidence, were posted immediately the next day and dealt with, so the
situation should be carefully monitored for a little while but the opinion inside the company is
that it is very likely that any new activities similar to that one will quiet down.”
35
The email had two attachments: (1) the union sign; and (2) a code of ethics and
conduct. With regard to the latter, Tagaki stated:
[S]tarting this week for the first time at USCC – we set up a Code of
Ethics/Code of Conduct and from this past Monday until yesterday we 40

43 Jones at 1052; R. Exh. 17, Tr. 2292–2293.
44 GC Exh. 20 (in Japanese); GC Exh. 35(a) (certified translation into English).
45 GC Exh. 35(a) at 1. As I noted earlier, he directly contradicted this in the declaration that the
Respondent’s counsel submitted, GC Exh. 21. I must believe that he was truthful with his superior.
JD–41–16
31
conducted training for all employees except for several people who were
absent.
The code of ethics and conduct, set out in the handbook (General Counsel’s Exh. 8 at 14–16),
sets out a wide range of prohibited actions. I earlier addressed those that the General Counsel 5
contends violate Section 7.
Jones’ Interrogation of McCoil and Rucci the Week of July 16
McCoil and Rucci were called to Jones’ office, where they each had separate one-on-10
one meetings with her. Jones asked Rucci if he knew who had posted the union signs, and he
replied that he did not know. She asked McCoil if he had seen the sign. He said no, and she
asked what time he had arrived. He replied, usually around 5:15 a.m. Jones made a comment
similar to, “[Y]ou got there early and didn’t see the sign?”46 She then asked him if he knew
who had put it up. He told her no.15
St. Hilaire’s Termination
General Counsel’s Exhibit 8 is the employee handbook issued in August. Pockoski
testified there was an earlier version, issued in late May, but the Respondent did not produce 20
it. The progressive discipline policy, set out on page 23, states that “[d]egrees of discipline
are generally progressive and are used to ensure that the employee has the opportunity to
correct his or her performance. . . . In general, one or more verbal warnings should be
followed by a written warning, followed at the next infraction by suspension or discharge....”
25
The following factors are to be considered:
*how many different offenses are involved
*the seriousness of the offense
*the time interval and employee response to prior disciplinary action(s)30
*previous work history of the employee
The policy also states that for “serious offenses,” such as fighting, theft,
insubordination, threats of violence, the sale or possession of drugs or alcohol on company
property, etc., termination may be the first and only disciplinary step taken. Furthermore, any 35
step or steps may be skipped after investigation and analysis of all of the circumstances.
The normal procedure for disciplining production workers was that Desjardin and
Jones discussed a situation; decided on a recommended discipline; and reviewed it with
Pockoski and Tagaki, who always made the final decision.4740

46 Tr. 1215.
47 Tr. 2434 (Desjardin).
JD–41–16
32
Prior to July, St. Hilaire and Lasko were longtime good friends outside of the
workplace. However, on about July 9, St. Hilaire learned that Lasko was dating St. Hilaire’s
ex-wife, Tara St. Hilaire (Tara), and on July 9, obviously agitated, St. Hilaire initiated an
angry exchange of phones calls or texts with Lasko. St. Hilaire accused him of betraying their
friendship, and they made threatening remarks to one another.5
The following morning, Lasko reported to Desjardin that he had received threatening
calls and texts from St. Hilaire. Desjardin and Jones then met with Lasko in Jones’ office.
Lasko reported that St. Hilaire had called him the previous evening after learning of 10
his relationship with Tara. St. Hilaire had stated that he was going to hit Lasko if Lasko
looked his way at all the following Monday (St. Hilaire was on leave on July 10 and 11). He
further stated that he had also received a threatening text from St. Hilaire. Jones asked to see
it. Lasko replied that he had erased St. Hilaire from his contacts list but had forwarded one of
the texts to Tara. He called Tara, who forwarded the text to him. It said words to the effect of 15
don’t get near me. Jones asked how long this had been going on, and Lasko replied that it had
just started. Lasko expressed fears that St. Hilaire might be violent against him at work.
Jones “encouraged” Lasko to call the police,48 but he did not do so. Lasko testified without
controversion that he had no further meetings with Jones on the subject. 49
20
When St. Hilaire came to work on Monday, July 14, Jones and Desjardin met with
him. Jones began by asking if something had happened that weekend, and he said no. She
then stated that she had seen the text messages that he had sent to Lasko and that they were
threatening and serious. St. Hilaire agreed that he had had a heated argument with Lasko, that
they had gone back and forth by phone and texts, and that both he and Lasko had made 25
threatening remarks to one another. St. Hilaire asked them to see his side, that he had just
found out something personally devastating—that his best friend had betrayed him. However,
he emphasized that he did not have a problem with Lasko now and could go up, shake his
hand, and work with him.50
30
Jones and Desjardin asked St. Hilaire to wait outside, after which they told him that he
was being suspended for 3 days until they did further investigation. They gave him nothing in
writing about the suspension. Desjardin testified that there was no further investigation
before the decision was made to terminate him.
35
When St. Hilaire returned on July 17, he was terminated for the threats to Lasko. Any
termination letter that he received is not in the record. St. Hilaire testified without

48 Tr. 1859 (Lasko).
49 To the extent that Jones stated in the complaint investigation (R. Exh. 13 at 3) that she and Desjardin
spoke with Lasko on July 11, neither she nor Desjardin so testified. Thus, her written account
constituted uncorroborated and inadmissible hearsay. See Midland Hilton & Towers, 324 NLRB 1141,
1141 fn. 1 (1997).
50 This credited testimony of St. Hilaire is corroborated almost word-for-word by Desjardin at Tr. 2433
and supported by Jones’ complaint investigation concluding statement, GC Exh. 27 at 1.
JD–41–16
33
controversion that Desjardin told him afterward, “I fought to keep you here, but we just can’t
have it here.”51
Jones’ complaint investigation concluding statement, General Counsel’s Exhibit 27 at
1, states that she, Tagaki, Pockoski, and Desjardin all agreed that5
“[T]he Company could not forgive Bill St. Hilaire’s threatening behavior
toward Jon Lasko. The risk was too high that the behaviors would continue
and employees would be put in danger of physical harm or vandalism . . . . It
was agreed that [he] would be released from employment for violation of 10
Company Code of Conduct.”
She noted that St. Hilaire had participated in antiharassment on May 7 and company code of
ethics/code of conduct training on July 9.
15
Inasmuch as the stated reason for St. Hilaire’s termination was violation of the code of
conduct, not the antiharassment policy, I need not detail testimony that management turned a
blind eye toward frequent incidents of blatant sexual harassment, perhaps amounting to
bullying, in the locker room.
20
Her concluding statement makes no mention of his being terminated because the
conduct was illegal (as Jones testified) or because of the Company’s fear of legal liability (as
Tagaki testified). According to Jones and Pockoski, St. Hilaire’s prior employment record
was not considered, although that is a factor mentioned in the progressive discipline
provisions in the handbook. 25
Hoar’s Termination
The Company provided free coffee and soups for employees at the cafeteria in plant 1
and at break rooms in the other plants. The stock of such products was kept in the kitchen 30
cabinets in the plant 1 cafeteria, and designated individuals made deliveries to the other plants
when they ran out of products. Every 3 or 4 weeks, the Company provided a free lunch
(“outing”) for employees in the cafeteria. On very hot days, the Company would also furnish
free Gatorades.
35
The Company had no written policies regarding removal of coffee or foodstuffs from
the cafeteria, but at least six times a year at morning meetings, “on a normal regular basis,”
Desjardin told all of the employees on his team that taking home any of the disposables
(coffee, sugar, scrub brushes, etc.) was wrong, cost the Company money, and lessened the
opportunity to get wage increases.52 He also told employees that drinks were not allowed in 40
production areas. Other than Hoar, no employees have ever been disciplined for coffee-
related or food-related offenses.

51 Tr. 2643.
52 Desjardin at Tr. 2552; see also Tr. 2755–2756 (Rucci).
JD–41–16
34
Rucci and Martin, who testified after McCoil, failed to rebut the following testimony
of McCoil, which I credit. On one hot summer day in 2015, McCoil observed Rucci take a
handful of Gatorade to his car and place them inside. Martin came out from his office and
asked where Rucci was. McCoil replied that he thought Rucci had gone out to his car, and 5
Martin went outside to Rucci’s car. A day or two later, McCoil was present on the floor when
Martin commented that he did not know if the Company would continue to give out free
Gatorade since Rucci had stolen them all.
Rucci testified without controversion that he complained to Martin in approximately 10
April that “people,” including Hoar, were taking food from the free luncheons to their cars, to
take home. Martin replied that he would look into it, and the next day he warned employees
on the floor that they could lose that benefit. Rucci heard nothing further after that. Rucci
also testified without controversion that about 2 weeks before the coffee incident, he went to
see Jones and asked her if employees were allowed to take pizza home from the free lunches 15
because “other people such as Tyler took it home.”53 She replied, “[T]echnically not, unless
… you ask permission. . . .,” evincing a rather lackadaisical attitude toward Rucci’s
complaint. Again, Rucci’s very words reflect that Hoar was not the only employee who
engaged in such conduct.
20
Finally, Rucci’s affidavit states that a few days after he observed Hoar take an armload
of coffee on about July 15, he heard office employees complain that coffee seemed to be
disappearing very quickly, and Jones testified that Rucci reported this to her on July 23.
There is no other allegation that Hoar took coffee on any other occasion, and it is
inconceivable that the single instance of his taking an armload of coffee would have seriously 25
depleted the entire coffee supply for approximately 65–70 employees.
From the above, I find that employees did take home from the cafeteria disposables,
including coffee, on a recurring basis; that management knew of this; and that management
considered it to be an ongoing problem but not one serious enough to warrant discipline or 30
even to be the subject of a written policy. To date, the Respondent has issued nothing in
writing thereon.
On July 23, Desjardin and Rucci went to Jones’ office. Rucci reported that he had
seen Hoar carrying an armload of coffee packets out to his car in the parking lot the previous 35
week. He also said that Jacob Rodriguez, another production employee, had seen this; that
the women in the office had commented that coffee was disappearing quickly; and that he did
not want to see employees lose this nice benefit.
The following day, July 24, Jones called Rodriguez to her office, where he confirmed 40
to her and Desjardin that he had seen Hoar take an armload of coffee packets out of his
cafeteria and put them into his car. Rodriguez further stated that Hoar would take soups
packets and leftovers from the free lunches.

53 Tr. 2761.
JD–41–16
35
Inexplicably, Jones did not take written statements from either Rucci or Rodriguez but
merely related what they told her in a half-page memorandum,54 which states that she and
Desjardin decided to terminate Hoar for violation of the code of conduct. She noted that Hoar
had not been a “model employee” and had not improved since having been issued a verbal 5
counseling for attendance. However, the Respondent’s counsel represented that Hoar’s
attendance record played no role in his termination.
Almost immediately after meeting with Rodriguez, Jones and Desjardin called Hoar to
Jones’ office.55 Again inexplicably, Jones did not take a statement from Hoar or even prepare 10
a written report of what he said at the meeting. Following is Hoar’s account (Tr. 1405–1407),
which I credit over theirs to the extent that there are differences.
Jones asked Hoar if he had stolen anything. He replied no. She then asked, what
about the food? He said, “[O]h, you mean the chicken noodle soup from this morning? Yeah. 15
I brought it over to Plant 2. I didn’t steal it.” She said not soup, coffee. He said no, he did
not steal any coffee. Jones stated that she had statements from two people that they had seen
him stealing armloads of coffee packets and putting them in his car the previous week. He
replied that never happened and asked if it was a joke. She said no, it was serious. Hoar
replied that he had no need to steal coffee because he could afford his own. Jones said that 20
they were going to let him go. LePage came into room and escorted Hoar out to his locker to
retrieve his personal belongings.
Jones and Desjardin offered conflicting testimony on whether the decision to terminate
Hoar was made before they had him brought to her office to address the allegations that Rucci 25
and Rodriguez had made against him. Jones testified that the decision had already been made,
whereas Desjardin testified that they first wanted to hear his side. Either way, in contrast to
normal procedure and what occurred with St. Hilaire, Jones and Desjardin made the decision
to terminate Hoar without consulting with Pockoski or Tagaki.56
30
Other Instances of Discipline
The General Counsel subpoenaed, inter alia, documents showing “all counselings,
reprimands, warnings, suspensions, discharges, layoffs and other disciplinary actions” issued
to production employees from January 1, 2011, through the present, for any of the following 35
reasons: theft, company code of ethics/conduct violations, harassment, bullying, workplace
violence, and/or absenteeism.”57

54 R. Exh. 11.
55 Desjardin testified that they met with Hoar the same day that they met with Rodriguez, and Hoar saw
them in the morning.
56 R. Exh. 18 shows that Jones and Desjardin terminated Hoar and that Desjardin thereafter notified
Takagi of this by e-mail.
57 See GC Exh. 3 at 4.
JD–41–16
36
General Counsel’s Exhibit 7 represents what the Respondent furnished in response to
that request. It includes disciplines issued to nonproduction employees. A variety of forms
were used. The following disciplines are contained in the exhibit (with the name of the
manager or supervisor signing or otherwise appearing on the form, and date of issuance):58
5
(1) Bruce Alexander (maintenance), verbal counseling for performance (Jones,
October 23).
(2) Travis Allen (production), 3-day suspension for falsifying production records
(Pockoski, September 17, 2013).10
(3) Claire Barnes (quality control), unspecified warning for unsatisfactory
performance (Manager Sean Hill, November 7, 2013).
(4) Rodney Corriveau (production), first warning for substandard work (Martin,15
November 18).
(5) Ray Durand (maintenance), first warning for violation of policy/procedure
(Manager James Gilloran, September 26).
20
(6) Krista Field (production), memorandum of verbal warning for not properly
communicating with Desjardin (Desjardin, October 1, 2013).
(7) Tyler Hoar (production), verbal counseling for excessive absenteeism (Jones,
May 27).25
(8) Bryan Kelly (maintenance), first and final warning for loaning coworkers
money and charging them interest (loan-sharking) (Jones, July 17).
See also General Counsel’s Exhibit 9, Jones’ complaint investigation, wherein she30
concluded that Kelly’s loan-sharking activity violated the Company’s code of conduct by
using his position to profit from coworkers, and also violated the law—directly contrary to her
testimony.
(9) Keith Lewis (production), written warning for not properly following35
mixing/batching instructions (Martin, March 10).
(10) Mike McCoil (production), unspecified warning for leaving without
permission (Martin, May 23, 2013).
40
(11) McCoil, unspecified warning for approaching a co-worker “in a threatening
manner” and placing his hands upon his shirt collar, and for overall attitude
(Pockoski, October 7, 2013).

58 St. Hilaire’s prior disciplines are separately contained in GC Exh. 27 at 6–12.
JD–41–16
37
(12) McCoil, verbal counseling for throwing IPA and water as pranks (Jones,
August 26).
(13) McCoil, verbal counseling for absenteeism (Jones, October 1).5
(14) McCoil, second counseling for changing his work schedule without
authorization (Martin, October 14).
(15) McCoil, unpaid 2-day suspension for violating the anti-harassment policy by10
inappropriate hugging and a verbal comment with sexual innuendo (Jones,
December 29).
(16) Ralph Metzermacher (shipping and receiving), first or oral warning for
improper use of equipment (signature indiscernible, March 5, 2012).15
(17) James Paquin (production), unspecified written warning for a safety violation
(Desjardin, March 8, 2012).
(18) Jacob Rodriguez (production), verbal counseling for driving the forklift in an20
unsafe manner (Martin, October 10).
(19) Rodriguez, second warning for willfully mishandling company equipment
(LePage, December 2).
25
(20) Andrew Rucci (production), verbal counseling for absenteeism (Jones, August
6).
(21) Rucci, verbal counseling for throwing IPA and water as pranks (Jones, August
26).30
(22) Khampeth Thavone (production), written warning for improperly running (and
ruining) batches and failing to follow verification procedures (LePage, October
23, 2013).
35
(23) Scott Walker (production), attendance warning letter (Pockoski, January 21).
(24) Walker, first warning for noncompliance with production instructions (Martin,
November 18).
40
(25) Walker, second warning for absenteeism (Jones, September 11).
Pockoski, who has been with the Company since 1991, recalled that one employee,
Jacob Perez, was terminated for a reason other than attendance, aside from Hoar and St.
Hilaire, but she could not remember the year that occurred. Similarly, she testified that an 45
JD–41–16
38
employee by the name of Efstathios Kotsalidis was terminated in part for absenteeism, but she
did not give the year, indicating that it was a long time ago. Neither name appears in General
Counsel’s Exhibit 7.
Desjardin testified that during his tenure at the Company, from September 2011 until 5
January 2015, an employee was terminated for damaging property and then lying about it.
However, none of the disciplines in General Counsel’s Exhibit 7 show a termination, and I
will disregard this testimony. See PCC Fabricators, Inc., Martin Luther King Sr. Nursing
Center, cited earlier. Desjardin further testified that prior to his employment, James Paquin
was terminated for fighting but was rehired.10
Based on the record evidence, I find that no employees other than Hoar and St. Hilaire
have been terminated for any reason since at least January 1, 2011.
Lasko’s Locker Vandalism Investigation15
On the morning of August 20, Lasko discovered that his locker had been vandalized
by someone emptying a whole canister of liquid soap over all of his possessions, resulting in
damage to his uniforms. He reported this to Desjardin, who went to see it himself. Later that
morning, Lasko was called to Jones’ office, where he met with Jones and Desjardin. He 20
explained what had occurred, and Jones said that they would investigate.
On August 20 and 21, in her office, Jones interviewed a number of production
employees concerning the incident. She used a standard introduction and series of statements
and questions, as follows:59 25
I am conducting an investigation into vandalism that took place some time yesterday
afternoon in the locker room.
I am asking for your full honest disclosure in response to my questions.30
1. Do you know that you are obligated to tell me what you know in an
investigation? Withholding information could cause you to lose your job.
2. Do you know you cannot be retaliated against for cooperating with an 35
investigation?
3. One of the employee’s lockers was tampered with yesterday. Do you know
anything about that?
40
4. It was Jon Lasko’s locker. Do you know anyone that would want to prank or
annoy Jon?

59 See GC Exh. 13 at 1.
JD–41–16
39
5. Can you guess who it might have been?
6. Do you know of anyone who has tampered with anyone’s lockers in the past?
7. Where is the liquid hand soap kept?5
8. Did you see anyone in that area yesterday?
9. Have you seen anyone joking or teasing Jon Lasko anywhere in the building or
in the parking lot?10
10. Are you aware anyone put someone up to it?
Have you been talking to him
May I see your phone/text history?
(These questions are handwritten; everything else on the page is typed.)15
At the conclusion, Jones read a provision about confidentiality.
Jones’ notes of the employees’ answers (General Counsel’s Exhibit 13 at 2–17) reflect
that she separated “Have you been talking to him” into question 11 and specifically asked 20
whether the employee had had any contact with St. Hilaire. She asked this even if the
employee said no to whether he was aware of anyone putting someone up to the vandalism
(id. at 3, 4, 7, 8 (“Think yr. trying to get me to say it was Bill. Don’t get that”), 13).60
McCoil was the only employee whom Jones interviewed twice, on August 20 and 2125
(id. at 7, 14). During the course of the August 20 interview, he did not mention St. Hilaire
when she asked if he was aware of anyone putting someone up the vandalism. Apparently at
the second interview, Jones asked him whether he still communicated with St. Hilaire, and
McCoil replied yes, that they communicated quite often. She asked to see his phone. He
asked why, and she answered that she wanted to see the texts between him and St. Hilaire. He 30
replied that he would not show her his phone. She asked why, and he responded that it was
none of her business what personal matters were on his phone. Jones shook her head and
stated that he was not being cooperative.
On August 20, Rucci was called in to see Jones in her office and to bring his phone. 35
When he was there, Jones had St. Hilaire’s number on a piece of paper and asked to look at
his phone to see if he had been communicating with St. Hilaire. She offered no explanation of
why she wanted to see if he was communicating with St. Hilaire but stated that it would be
suspicious if he did not hand over his phone. He did so.
40
Based upon General Counsel’s Exhibit 13 and the substantially similar versions in
Rucci’s affidavit and McCoil’s testimony of what Jones said in the interviews, I find the
following. Jones asked employees to bring their cell phones when they came to her office.

60 I have to assume that when there is a blank next to question 10, the employee said no one.
JD–41–16
40
During the course of her questions, she asked them if they communicated with St. Hilaire,
whether or not they suggested that he might have been behind the vandalism to Lasko’s
locker. She also asked to see their phones to look at any texts between them and St. Hilaire
without offering a reason.
5
The following week, the Respondent issued written warnings to McCoil and Rucci, on
the basis that the investigation had revealed that they were known to be “prankster[s],”
unrelated to the locker vandalism.61 They threatened to go to the NLRB, and Jones reduced
the warnings from written to verbal.62 The issuance of these warnings is suspicious but, as
with McCoil’s later termination, management’s motivation is not before me.10
Interrogation of McCoil on about November 8
I credit McCoil’s account (Tr. 1249, et. seq.) as follows. On the afternoon of about
November 8, McCoil was called into Jones’ office. She asked him if he had seen the offer of 15
free legal assistance from the Company’s attorney. He replied that he had. She stated that he
might be getting a phone call concerning “the union thing.” McCoil told her that he had
already received a call from Ablavsky, and Jones asked “exactly what was said?” McCoil
“played dumb” as though he had no conversation with Ablavsky. At some point, Jones stated
that Ablavsky was “just a student intern doing something in her free time.”20
Analysis and Conclusions
Timing of the Announcement and Implementation of the Wage Increase
25
Clearly, the Respondent had planned prior to the week of July 7 to announce and
implement at some point a new performance-based pay program that would result in pay
increases to production and other employees, including supervisory personnel. However,
management witnesses offered contradictory, confusing, and unconvincing evidence to
establish that firm dates for these actions were set prior to July 9, the date that the union sign 30
was discovered. Indeed, the Respondent’s own documents—management emails of July 8
and 9, and the final wage structure figures—show that final wage rates were not completely
formulated until the afternoon of July 9. Jones’ email to Tagaki the morning of July 9 shows
that the decision to announce the increases to employees and to implement them as soon as
possible was timed to fend off unionization.35
I therefore conclude that the timing of announcing and of implementing the wage
increase for hourly employees on July 10 was designed to discourage their support for
organizing and therefore violated Section 8(a)(1). See Emery Air Freight Corp., 207 NLRB
572, 575 (1974); Revco Drug Centers of the West, Inc., 188 NLRB 73, 78 (“The crucial fact 40
to evaluate is not whether [the Company] would have increased wages at some time or
another . . . but whether the increase was granted when it was because of union activities”).

61 GC Exh. 7 at 18, 29.
62 GC Exh. 40 at 5.
JD–41–16
41
8(a)(1) Allegations of Unlawful Interrogation
(1) During the week of July 16, HR Manager Jones called McCoil and Rucci
separately to her office and asked each of them if they knew who had posted the 5
union signs the previous week.
Interrogations of employees do not per se violate Section 8(a)(1); instead, the Board
uses a totality-of-circumstances test to determine whether an interrogation is coercive of
employees’ rights under the Act. Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub 10
nom HERE Local 11 v. NLRB, 760 F.2d 1065 (9th Cir. 1985). Factors to be considered
include any background ULP’s, the nature of the information sought, the level of the
questioner (how high in the supervisory chain), the place and method of interrogation, and the
truthfulness of the reply. Westwood Health Care Center, 330 NLRB 935, 939 (2000); Bourne
v. NLRB, 332 F.2d 47, 48 (2d Cir.1954). Other considerations are whether the employee is 15
an open and active union supporter (Sunnyvale Medical Clinic, 277 NLRB 1217, 1218
(1985)), and whether the employer has a legitimate reason justifying interrogation concerning
protected activities. Foamex, Inc., 315 NLRB 858 (1994).
I conclude that Manager Jones’ summoning employees to her office and engaging in 20
one-on-one questioning about their knowledge of union activity reasonably tended to interfere
with, restrain, or coerce employees in the exercise of their Section 7 rights and therefore
violated Section 8(a)(1).
(2) On August 20 and 21, Jones called McCoil, Rucci, and other production 25
employees to her office, where, in connection with the vandalism to Lasko’s
locker, she interrogated them about their communications with St. Hilaire.
The Respondent undoubtedly had a legitimate right, maybe even the obligation, to
launch an investigation in order to determine who had vandalized an employee’s locker and 30
thereby damaged his uniforms and personal possessions. Management also could reasonable
suspect that St. Hilaire, who had a motive to retaliate against Lasko, might have been behind
the vandalism. Even asking employees specifically if they had any information that St.
Hilaire was involved was appropriate.
35
However, Jones went further. Even if the employees did not mention St. Hilaire in
any of their earlier responses, Jones nonetheless still asked them about their communications
with St. Hilaire and asked to see any messages they had exchanged with him, and she offered
no reason why.
40
Significantly, when Attorney Peters-Hamlin asked Rucci what Jones was investigating
in August, he started to answer, “Billy with the whole union—” before she inappropriately cut
him off.63 After the General Counsel rightfully objected, she then asked, “Were you trying to

63 Tr. 2895.
JD–41–16
42
say that she was asking about unionization?” and, obviously getting counsel’s signal that his
earlier answer was wrong, Rucci then answered “no.”64 I credit his uncoached answer.
Based on all of the above circumstances, I conclude the following. When Jones asked
employees about their communications with St. Hilaire and to look at their cell phone 5
messages for such when they had not mentioned St. Hilaire in their earlier answers, and gave
no reason why she wanted this information, they could reasonably have concluded that Jones
was seeking information about their union activities. Accordingly, Jones violated Section
8(a)(1) by this conduct.
10
(3) On about November 8, in her office, Jones asked McCoil whether Board Agent
Ablavsky had contacted him and, when he replied yes, Jones asked him “exactly what
was said.”
In Acme Bus Corp., 357 NLRB 902 (2011), the Board stated that the interrogation of 15
employees regarding statements or affidavits given to Board agents is “inherently coercive,”
citing Wire Products Mfg. Corp., 326 NLRB 627–628 (1998), enfd. sub nom. NLRB v. R. T.
Blankenship & Associates, Inc., 210 F.3d 375 (7th Cir. 2000). Interrogating employees about
their conversations with Board agents is similarly proscribed. Contris Packing Co., 368
NLRB 193 (1983).20
Therefore, Jones’ interrogation of McCoil on about November 8 violated Section
8(a)(1).
The Terminations of Hoar and St. Hilaire25
The General Counsel alleges that the Respondent terminated Hoar and St. Hilaire in
violation of Section 8(a)(3) and (1) of the Act.
The framework for analyzing alleged mixed motive violations of Section 8(a)(3) is 30
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Under Wright Line, the General Counsel must make a prima facie showing
sufficient to support an inference that the employee’s protected conduct motivated an
employer’s adverse action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protected conduct, the employer knew 35
or suspected the employee engaged in such conduct, the employer harbored animus, and the
employer took action because of this animus.
Under the Wright Line framework, if the General Counsel makes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the 40
evidence, that protected activity was a motivating factor in the employer’s action. Once this
is established, the burden of persuasion shifts to the employer to show that it would have
taken the same adverse action even in absence of the protected activity. NLRB v.

64 Ibid.
JD–41–16
43
Transportation Corp., 462 U.S. 393, 399, 403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800,
811 (6th Cir. 2002); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34
(5th Cir. 1997) (per curiam). To meet this burden, “an employer cannot simply present a
legitimate reason for its action but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the protected conduct.” Serrano 5
Painting, 332 NLRB 1363, 1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984).
If the employer’s proffered defenses are found to be a pretext, i.e., the reasons given
for the employer’s actions are either false or not, in fact, relied on, the employer fails by 10
definition to show that it would have taken the same action for those reasons, and there is no
need to perform the second part of the Wright Line analysis. On the other hand, further
analysis is required if the defense is one of “dual motivation,” that is, the employer defends
that, even if an invalid reason might have played some part in the employer’s motivation, the
employer would have taken the same action against the employee for permissible reasons. 15
Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005). I will
treat these as dual-motivation cases inasmuch as coworkers reported their conduct to
management, so the issue is whether the Respondent would have taken the same actions
against them absent their union activity.
20
Clearly, the posting of the prounionization sign by Hoar and St. Hilaire on July 8
constituted protected, concerted activity.
There is no evidence of direct knowledge of that activity. However, the element of
knowledge can be satisfied by reasonable inference, such as (1) timing of the allegedly 25
discriminatory action; (2) the respondent’s general knowledge of union activities; (3) animus;
and (4) disparate treatment. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd.
mem. 97 F.3d 1448 (4th Cir. 1995); see also Greco & Haines, Inc., 306 NLRB 634, 634
(1992); Abbey’s Transportation Services, Inc. v. NLRB, 837 F.2d 575, 579 (2d Cir. 1988).
30
Here, the only two employees whom the Respondent has terminated since January
2011 were Hoar and St. Hilaire—the only two employees involved in posting the union
sign—and both were terminated the same month that they engaged in union activity. Rucci’s
affidavit shows that employees on July 9 were discussing the notices and speculating that St.
Hilaire had put them up, and the next week, Jones was interrogating employees about their 35
knowledge of who had posted them. All of these factors establish a reasonable inference of
knowledge.
The General Counsel’s final burden under Wright Line is to show that the Respondent
harbored antiunion animus and took discriminatory action because of this animus.40
As with knowledge, there is no direct evidence of animus. Nevertheless, inferences of
animus and discriminatory motivation can be warranted under all the circumstances of a case,
even in the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd.
JD–41–16
44
976 F.2d 744 (11th Cir. 1992); Electronic Data Systems Corp., 305 NLRB 219, 219 (1991),
enfd. in relevant part 985 F.2d 801, 805 (5th Cir. 1993).
A number of factors can support an inference of animus, including the following that I
conclude have been established.5
1. The timing of adverse action shortly after an employee has engaged in protected
activity. Lucky Cab Co., 360 NLRB No. 43, slip op. at 5 (2014); Real Foods Co., 350
NLRB 309, 312 (2007).
10
Both Hoar and St. Hilaire were terminated the same month that they posted the union
sign. Significantly, when Rucci had previously lodged complaints against Hoar for taking
food from the cafeteria, the Respondent took no action whatsoever against him.
2. Failure to conduct a full and fair investigation of an employee’s alleged misconduct, 15
abruptness of the adverse action, and the failure to conduct a full and fair
investigation, Dynabil Industries, 330 NLRB 360 (1999); Firestone Textile Co., 203
NLRB 89 (1975).
As to Hoar, Jones testified that she and Desjardin made the decision to terminate him 20
for stealing coffee even before they even confronted him with the allegations that Rucci and
Rodriguez had made against him. She did not take written statements from Rucci and
Rodriguez, and she neither took a statement from Hoar nor even memorialized in writing what
he said; rather, the only writing she prepared was a half-page memorandum. She did not give
Hoar a written statement of the reasons for his termination. Moreover, she did not follow the 25
normal procedure of advising Pockoski and Tagaki of her recommended discipline so that
they could make the final decision but instead terminated him immediately.
Although Jones considered Hoar’s attendance record as a negative, she totally ignored
St. Hilaire’s 9-year work history, contrary to the handbook’s progressive discipline 30
provisions. Nor did she follow up with Lasko concerning St. Hilaire’s assurances that they
could work together.
3. Contemporaneous 8(a)(1) violations. Luck Cab Co., above; Austal USA, 356 NLRB
No. 65, slip op. at 2 (2010).35
Almost contemporaneously with Hoar’s and St. Hilaire’s terminations, the Respondent
violated Section 8(a)(1) by interrogating employees over who put up the union sign, and by
timing the announcement and implementation of the wage increase to discourage
unionization—conduct in direct response to Hoar’s and St. Hilaire’s union activity. 40
4. Disparate treatment. Guardian Automotive Trim, Inc., 340 NLRB 475, 475 fn. 1
(2003); La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002).
JD–41–16
45
Hoar and St. Hilaire have been the only employees terminated since January 2011. St.
Hilaire was terminated for making verbal threats occurring away from work, whereas an
employee who actually made threatening physical contact at the workplace received only an
unspecified warning, an employee, who engaged in illegal loan sharking at the facility
received only a written warning, an employee who falsified production records received a 3-5
day suspension but was not terminated, and employees who employees who willfully
mishandled company equipment or ruined batches of product were given only warnings.
Additionally, as to Hoar, the Respondent tolerated employees taking food home from
the cafeteria and never issued any disciplines for that reason prior to terminating him. This 10
also amounted to a departure from past practice without a satisfactory explanation. See Toll
Mfg., 341 NLRB 832, 833–834 (2004).
5. Failure to follow the progressive discipline system. Detroit Newspapers, 342 NLRB
1268, 1272 (2004); Toll Mfg., ibid.15
See my discussion under points 2 and 4 above. The Respondent did not take into
account St. Hilaire’s previous work history (and long tenure as an employee) or the fact that
that neither St. Hilaire nor Hoar had any prior similar offenses.
20
Based on the above, I conclude that counsel for the General Counsel has established
all of the elements to meet her initial burden of persuasion under Wright Line.
I now turn to the Respondent’s burden under Wright Line to show that, absent their
protected activity, Hoar would have been terminated for taking coffee and St. Hilaire for 25
threats toward Lasko. Based on all of the above considerations, the answer is a resounding
no.
Hoar
30
The Respondent maintained an extremely lax policy regarding employees taking food
and other supplies home from the cafeteria. Management was aware that employees did this
on a recurring basis but never issued any written prohibition against it or disciplined any
employees other than Hoar for that reason. Indeed, Rucci had earlier reported to both Jones
and Martin that Hoar and other employees took food from the cafeteria, but management took 35
no action whatsoever against Hoar or anyone else. In marked contrast, after Hoar engaged in
union activity, Jones and Desjardin, with great haste and without following the normal
procedure of getting approval from Pockoski and Tagaki, made the decision to terminate him
even before he was given an opportunity to present his side of the story, and they had him
escorted out of the facility immediately after interviewing him. The Respondent offered no 40
explanation for its failure to take written statements from witnesses or from Hoar, or to
provide him with a written explanation of the reasons for his termination.
I therefore conclude that the Respondent has failed to meet its burden of showing that
but for Hoar’s union activity, he would have been terminated or even disciplined at all.45
JD–41–16
46
St. Hilaire
St. Hilaire was an employee of 9-plus years, first or second in seniority among
approximately 23 production employees, yet the Respondent disregarded its progressive 5
discipline system and ignored his work history. The Respondent provided no evidence that he
ever engaged in violent conduct at work at any time. His threats to Lasko were by text or
phone and not in person, occurred over a very short period, and were the result of an intense
personal dispute that was quite unlikely to be repeated. St. Hilaire reassured Jones and
Desjardin that he was over his distress and willing and ready to work with Lasko, but they 10
ignored his words and failed to convey them to Lasko. Significantly, nothing suggests that St.
Hilaire engaged in any improper conduct toward Lasko at the facility or posed a threat to him
at work. In contrast, employees who engaged on the job in actual threatening physical
behavior, loan sharking or deliberate destruction of company property were warned or
suspended but not discharged.15
As with Hoar, the Respondent has not met its burden of showing that but for St.
Hilaire’s union activity, he would have been terminated or even disciplined at all.
Accordingly, I conclude that the Respondent violated Section 8(a)(3) and (1) of the 20
Act by terminating Hoar and St. Hilaire.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of 25
Section 2(2), (6), and (7) of the Act.
2. By terminating Tyler Hoar and William St. Hilaire, the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act and violated Section 8(a)(3) and (1) of the Act.30
3. By the following conduct, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(1) of the Act.
35
(a) Timed the announcement and implementation of a wage increase to
discourage employees from engaging in union activities.
(b) Interrogated employees about their and other employees’ union
activities.40
(c) Discouraged employees from cooperating in the Board’s investigation
of unfair labor practice charges filed against the Respondent, and otherwise interfered with
their Section 7 rights, by offering them free legal assistance from the Respondent’s attorney
when they met with a Board agent.45
JD–41–16
47
(d) Maintained employee handbook provisions that employees can
reasonably construe as prohibiting Section 7 activity.
Remedy5
Having found that the Respondent 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.
10
The Respondent having discriminatorily terminated Tyler Hoar and William St.
Hilaire, it must offer them full reinstatement to their former jobs or, if those jobs no longer
exist, to a substantially equivalent positions, without prejudice to their seniority or other rights
or privileges previously enjoyed, and to make them whole for any losses of earnings and other
benefits suffered as a result of their terminations. Backpay shall be computed in accordance 15
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).
In addition, the Respondent shall compensate Tyler Hoar and William St. Hilaire for 20
the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a
report with the Regional Director for Region 1, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report allocating the backpay award to
the appropriate calendar years. See Advoserv of New Jersey, Inc., 363NLRB No. 143 (2016);
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).25
The General Counsel also seeks an order requiring the Respondent to reimburse them
for search-for-work and work-related expenses that they have incurred while searching for
work regardless of whether they received interim earnings for a particular quarter.
Discriminatees are entitled to reimbursement for expenses incurred in their search for interim 30
employment, but at present the Board treats such expenses as an offset to a discriminatee’s
interim earnings, rather than calculating them separately. West Texas Utilities Co., 109
NLRB 936, 939 fn. 3 (1954). I am obliged to follow existing Board precendent. See
Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749 fn.
14 (1984). Therefore, I must deny the General Counsel’s request for this additional remedy.35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended65
40

65 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–41–16
48
ORDER
The Respondent, U.S. Cosmetics Corporation, Dayville, Connecticut, its officers,
agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Terminating or otherwise discriminating against any employee for
engaging in union activities.
10
(b) Timing the announcement and implementation of a wage increase or
other benefits to discourage employees from engaging in union activities.
(c) Interrogating employees about their or coworkers’ union activities.
15
(d) Discouraging employees from cooperating in the Board’s investigation
of unfair labor practices filed against the Respondent, and otherwise interfering with their
Section 7 rights, by offering them free legal assistance from the Respondent’s attorney when
they met with a Board agent.
20
(e) Maintaining handbook provisions that employees can reasonably
construe as prohibiting Section 7 activity.
(f) 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.25
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of the Board’s Order, offer Tyler Hoar 30
and William St. Hilaire full reinstatement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Tyler Hoar and William St. Hilaire whole for any loss of 35
earnings and other benefits suffered as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its
files any reference to the unlawful terminations of Tyler Hoar and William St. Hilaire, and 40
within 3 days thereafter notify them in writing that this has been done and that the
terminations will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated 45
JD–41–16
49
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
5
(e) Revise or rescind the following work rules to the extent they are
contained in the September 2015 handbook:
(1) Welcome: “This handbook and the information in it should be treated
as confidential. No portion of this handbook should be disclosed to 10
others, except USCC employees and others affiliated with USCC
whose knowledge of the information is required in the normal course of
business.”
(2) Code of Ethics and Conduct: “Under no circumstances may an
employee . . . [p]rematurely disclose confidential and proprietary 15
information to any unauthorized person.”
(3) Code of Ethics and Conduct: “Under no circumstances may an
employee . . . [p]ost financial, confidential, sensitive or proprietary
information about the Company, clients, employees or applicants on
social media. Additionally, employees may not post obscenities, slurs 20
or personal attacks that can damage the reputation of the Company,
clients, employees or applicants. . . .”
(4) Confidentiality, relating to clients and other parties with whom the
Company does business: “It is our policy that all information
considered confidential will not be disclosed to external parties or to 25
employees without a ‘need to know.’ If an employee questions whether
certain information is considered confidential, he/she should first check
with his/her immediate supervisor.”
(5) Electronic Communication and Internet Use, prohibiting employees
from “using disparaging, abusive, profane or offensive language; 30
creating, viewing or displaying materials that might adversely or
negatively reflect upon USCC or be contrary to USCC’s best interests
….”
(6) Social Media--Acceptable Use: “Employees may not post obscenities,
slurs or personal attacks that can damage the reputation of the 35
company, clients, employees or applicants.”
(f) Within 14 days after service by the Region, post at its facility in
Dayville, Connecticut, copies of the attached notice marked “Appendix.”66 Copies of the
notice, on forms provided by the Regional Director for Region 1, after being signed by the 40
Respondent’s authorized representative, shall be posted by the Respondent and maintained for

66 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–41–16
50
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 5
copy of the notice to all current employees and former employees employed by the
Respondent at any time since July 10, 2014.
(g) 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 10
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. May 17, 2016
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 terminate or otherwise discriminate against you because you engage in
union activities.
WE WILL NOT time the announcement and implementation of a wage increase or other
benefits to discourage employees from engaging in union activities.
WE WILL NOT interrogate you about your or your coworkers’ union activities.
WE WILL NOT discourage you from cooperating in the Board’s investigation of unfair
labor practices filed against us, and otherwise interfere with your rights, by offering you free
legal assistance from our attorney when you meet with a Board agent.
WE WILL NOT maintain the following rules that were eliminated in the September 2015
revised handbook and which the National Labor Relations Board has now found were
unlawful:
(1) Code of Ethics and Conduct: “Under no circumstances may an employee . . .
discuss your pay rate with other employees, or ask fellow employees about their
pay rate.”
(2) Payment of Wages: “Pay rates are personal and confidential and are not to be
shared with fellow employees.”
(3) Confidentiality: “All inquiries from the media must be referred to Human
Resources.”
(4) Social Media--Acceptable Use: “Employees may not post financial, confidential,
sensitive or proprietary information about the company, clients, employees or
applicants.”
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order, offer Tyler Hoar and William
St. Hilaire full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Tyler Hoar and William St. Hilaire whole for any loss of earnings and other
benefits suffered as a result of our discrimination against them, in the manner set forth in the
remedy section of the decision.
WE WILL remove from our files any reference to our unlawful terminations of Tyler Hoar
and William St. Hilaire, and within 3 days thereafter notify them in writing that this has been
done and that the terminations will not be used against him in any way.
WE WILL revise or rescind the following work rules to the extent they are contained in the
September 2015 revised employee handbook:
(1) Welcome: “This handbook and the information in it should be treated as
confidential. No portion of this handbook should be disclosed to others, except
USCC employees and others affiliated with USCC whose knowledge of the
information is required in the normal course of business.”
(2) Code of Ethics and Conduct: “Under no circumstances may an employee . . .
prematurely disclose confidential and proprietary information to any
unauthorized person.”
(3) Code of Ethics and Conduct: “Under no circumstances may an employee . . .
post financial, confidential, sensitive or proprietary information about the
Company, clients, employees or applicants on social media. Additionally,
employees may not post obscenities, slurs or personal attacks that can damage
the reputation of the Company, clients, employees or applicants. . . .”
(4) Confidentiality, relating to clients and other parties with whom the Company
does business: “It is our policy that all information considered confidential will
not be disclosed to external parties or to employees without a ‘need to know.’
If an employee questions whether certain information is considered
confidential, he/she should first check with his/her immediate supervisor.”
(5) Electronic Communication and Internet Use, prohibiting employees from
“using disparaging, abusive, profane or offensive language; creating, viewing
or displaying materials that might adversely or negatively reflect upon USCC
or be contrary to USCC’s best interests. . . .”
(6) Social Media--Acceptable Use: “Employees may not post obscenities, slurs or
personal attacks that can damage the reputation of the company, clients,
employees or applicants.”
U.S. COSMETICS CORPORATION
(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.
10 Causeway Street, Room 601, Boston, MA 02222-1072
(617) 565-6700; Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-135282 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, (617) 565-6701.