AdvancePierre Foods, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2016

09-CA-153966 (N.L.R.B. Jun. 27, 2016)

JD–58–16
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ADVANCEPIERRE FOODS, INC.,
Case Nos. 09–CA–153966
09–CA–153973
and 09–CA–153986
09–CA–154624
09–CA–156715
UNITED FOOD AND COMMERCIAL WORKERS 09–CA–156746
UNION, LOCAL 75 a/w UNITED FOOD AND 09–CA–159692
COMMERCIAL WORKERS INTERNATIONAL UNION. 09–CA–160773
09–CA–160779
09–CA–162392
DECISION
and
RECOMMENDED ORDER
DAVID I. GOLDMAN
Administrative Law Judge
Counsel:
Zuzana Murarova, Esq. and Gideon Martin, Esq. (NLRB Region 9)
of Cincinnati, Ohio, for the General Counsel
Keith P. Spiller Esq. and Megan S. Glowacki, Esq. (Thompson Hine LLP)
of Cincinnati, Ohio, for the Respondent
Pamela M. Newport, Esq. (UFCW Local 75)
of Dayton, Ohio, for the Charging Party
JD–58–16
i
Table of Contents
Page
Introduction .................................................................................................................... 1
Statement of the Case .................................................................................................... 2
Jurisdiction...................................................................................................................... 3
Unfair Labor Practices .................................................................................................... 4
Introduction ......................................................................................................... 4
I. Alleged solicitations to employees to revoke union authorization cards
complaint paragraph 5(a)............................................................................... 5
Facts ....................................................................................................... 5
Analysis .................................................................................................. 6
II. Maintenance and enforcement of the 2001 solicitation/distribution
policy; surveillance of union literature distribution in the cafeteria/
break room; the disciplining of Cotto and Guzman; interrogation
complaint paragraphs 5(b), (e), (f), 6(a), (c), and amendment (Tr. 566) ........ 8
Facts ....................................................................................................... 8
Analysis ................................................................................................ 14
a. Maintenance and enforcement of the 2001 solicitation/
distribution policy ....................................................................... 14
b. Surveillance of union literature distribution in
the cafeteria .............................................................................. 15
c. The disciplining of Cotto and Guzman ....................................... 15
d. The Respondent’s remediation defense .................................... 17
e. Interrogation ............................................................................... 17
III. Searching of clipboards; confiscation of union cards; enforcement
of solicitation/distribution policy; the disciplining of Fox
complaint paragraphs 5(b), (c), (d), and 6(b)................................................ 19
Facts ..................................................................................................... 19
Analysis ................................................................................................. 22
JD–58–16
ii
Table of Contents (continued)
Page
IV. Internet surveillance; the demand for documentation
of identity; the suspension of Diana Concepcion
complaint paragraphs 5(g), (h), (i), and 6(d) ................................................ 24
Facts ..................................................................................................... 24
Analysis ................................................................................................ 31
a. Surveillance................................................................................ 31
b. The demand for documentation of identity
and the suspension of Diana Concepcion .................................. 33
V. Assessment of attendance point against Jessenia Maldonado
complaint paragraph 5 in Case 09–CA–16392............................................. 39
Facts ..................................................................................................... 39
Analysis ................................................................................................. 41
VI. The wage increase and informing employees that wages
are personal and confidential and should not be shared
complaint paragraphs 5(j) and (l) .......................................................... 42
Facts ..................................................................................................... 42
Analysis ................................................................................................. 47
a. The wage increase ..................................................................... 47
b. Wage confidentiality ................................................................... 50
VII.Solicitation of grievances
complaint paragraph 5(k) ............................................................................. 50
Facts ..................................................................................................... 50
Analysis ................................................................................................. 53
Conclusions of Law....................................................................................................... 56
Remedy ........................................................................................................................ 57
Order ............................................................................................................................ 61
Appendix
JD–58–16
1
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves a series of alleged
unfair labor practices that arose out of a union organizing campaign and the employer’s
opposition to it at food product manufacturer’s Cincinnati, Ohio facility. 5
As discussed herein, I find that as alleged, the employer unlawfully maintained and
enforced an unlawfully broad solicitation/distribution policy during an approximately one-month
period from the inception of the union campaign in May 2015, until the employer realized that its
policy was unlawful. I further find that, in a flurry of unlawful activity, on or about June 9, the 10
employer unlawfully disciplined three employees for engaging in union activity. In the midst of
one of these disciplinary meetings, it engaged in one unlawful act of interrogation, questioning an
employee about whether another employee assisted her in distributing literature during a work
break in the break room. At about the same time, I find that the employer unlawfully surveilled
employees by searching for and confiscating union authorization cards. The following week, the 15
employer unlawfully surveilled union activity online, which, as discussed at length herein, led to
the unlawful demand that an employee provide identification documents, and her unlawful
suspension when she failed to comply. I find that, on or about July 17, the employer unlawfully
assessed an attendance point against an employee who was engaged in protected activity as
part of a one-day strike by some employees. Further, I find that in mid-July, the employer20
unlawfully implemented a program to solicit employee grievances and impliedly promised to
remedy them in an effort to discourage union organizational activity. Finally, I find that in an
August 27 letter to each employee explaining a pay raise they were to receive, the employer
unlawfully directed employees not to share pay information with other employees.
25
In addition to these violations, I dismiss allegations that the employer unlawfully solicited
employees to withdraw union authorization cards. I dismiss one alleged act of interrogation for
which there is no evidence, and I decline to find a violation with regard to another such violation
urged by the General Counsel but unalleged in the complaint or by amendment. Finally, I dismiss
the General Counsel’s allegation that the pay raise granted employees on or about August 30, 30
and the announcement of it on July 15, violated the Act. I believe that the employer has
successfully demonstrated that the pay raise was implemented as the culmination of a multiplant
pay restructuring plan envisioned, planned, and developed long before and unrelated to the union
organizing campaign.
35
Finally, as discussed herein, the General Counsel has requested a panoply of
extraordinary remedies. Some have no precedent in existing Board law, and thus, are more
appropriately considered by the Board on exceptions, should the General Counsel choose to
pursue that route. Others are simply unwarranted under the circumstances of this case. I do
agree, however, that the posting of a notice, in English, Spanish, and any other languages 40
determined appropriate by the Regional Director, constitutes part of an appropriate remedy in this
case.
45
JD–58–16
2
STATEMENT OF THE CASE
On June 10, 2015, the United Food and Commercial Workers Union Local 75 (Union) filed
unfair labor practice charges alleging violations of the National Labor Relations Act (Act) by
AdvancePierre Foods Inc. (AP), docketed by Region 9 of the National Labor Relations Board
(Board) as Cases 09–CA–153966, 09–CA–153973, and 09–CA–153986. Based on an 5
investigation into these charges, on August 31, 2015, the Board’s General Counsel, by the
Regional Director for Region 9 of the Board, issued an order consolidating these cases, and a
consolidated complaint and notice of hearing, alleging that AP had violated the Act. On
September 14, 2015, AP filed an answer denying all alleged violations of the Act.
10
On June 22, 2015, the Union filed a further unfair labor practice charge against AP,
docketed by Region 9 of the Board as Case 09–CA–154624. On July 24, 2015, the Union filed
further charges, docketed as Cases 09–CA–156715 and 09–CA–156746. Based on an
investigation into these charges, on September 30, 2015, the Board’s General Counsel, by the
Regional Director for Region 9 of the Board, issued an order consolidating these cases with 15
Cases 09–CA–153966, 09–CA–153973, and 09–CA–153986, and a second consolidated
complaint and notice of hearing, alleging additional violations of the Act by AP. On October 14,
2015, AP filed an answer to the second consolidated complaint denying all alleged violations of
the Act.
20
On September 9, 2015, the Union filed a further unfair labor practice charge against AP,
docketed by Region 9 of the Board as Case 09–CA–159692. On September 11, 2015, the Union
filed a first amended charge in that case. On September 25, 2015, the Union filed further
charges, docketed as Cases 09–CA–160773 and 09–CA–160779. On October 29, 2015, the
Board’s General Counsel, by the Regional Director for Region 9 of the Board, issued an order 25
consolidating these cases with the cases contained in the second consolidated complaint, and
issued a third consolidated complaint and notice of hearing, alleging additional violations of the
Act by AP. On November 12, 2015, AP filed an answer to the third consolidated complaint
denying all alleged violations of the Act.
30
On November 27, the Board’s General Counsel, by the Acting Regional Director for
Region 9 of the Board, issued an amendment to the third consolidated complaint. AP filed an
answer to the amendment to the third consolidated complaint on December 10, 2015, denying all
allegations of the Act. A second amendment to the third consolidated complaint was filed
January 7, 2016, and an answer denying the allegations filed by AP on January 13, 2016.135
On October 21, 2015, the Union filed a charge, docketed by Region 9 as Case 09–CA–
162392. (GC Exh. 28(a).) Based on investigation into the charge, a complaint issued November
25, 2015. (GC Exh. 28(c).) AP answered, denying all alleged violations of the Act, on December
10, 2015. (GC Exh. 28(e).) I consolidated this case for hearing with the previously-described 40
cases on December 4, 2015. (Tr. 951).
A trial in these cases was conducted on November 30 through December 4, 2015, and on
January 14, 2016, in Cincinnati, Ohio. Counsel for the General Counsel and the Respondent filed
posttrial briefs in support of their positions by February 18, 2016. 45

1As it was filed after the commencement of the hearing, I deemed and treated the second
amendment to the third consolidated complaint as a motion to amend the third consolidated
complaint. That motion was granted January 14, 2016. (Tr. 1054, 1058.)
JD–58–16
3
At trial, counsel for the General Counsel moved to amend the complaint to allege, in
paragraph 4, that Eric Hayes had the job title production supervisor and was a statutory
supervisor and agent under the Act. Counsel also moved to amend paragraphs 5(a) and (k) to
substitute Eric Hayes for Ernie Hayes. Additionally, counsel moved to amend complaint to
include an allegation (Tr. 566) that the Respondent, by Mandy Ramirez, unlawfully surveilled 5
Carmen Cotto’s distribution of union literature. These motions were granted. The parties
stipulated that Ernie Hayes, former HR manager for AP, was an agent of the Respondent at all
material times.
Posttrial, on March 31, 2016, counsel for the General Counsel moved, without opposition, 10
to consolidate Cases 09–CA–157262 and 09–CA–163048 with the previously-consolidated cases
and on April 29, 2016, moved to reopen the hearing to take evidence in these new cases. That
motion was granted May 16, 2016, and the hearing set to resume June 2. On May 31, 2016,
counsel for the General Counsel moved, without opposition, to have Cases 09–CA–157262 and
09–CA–163048 severed and remanded to the Regional Director to consider the Charging Party’s 15
request for withdrawal of the charges in those cases. That motion was granted by order issued
June 1. That same day, the Regional Director for Region 9 issued an order approving withdrawal
of the charges in Cases 09–CA–157262 and 09–CA–163048.2
On the entire record, I make the following findings, conclusions of law, and 20
recommendations.
JURISDICTION
AP is and at all material times has been a corporation with an office and principal place of 25
business in Cincinnati, Ohio, and has been engaged in food production and distribution at that
facility. In conducting its operations during the 12-month period ending August 1, 2015, and the
12-month period ending November 1, 2015, AP sold and shipped from its facility goods valued in
excess of $50,000 directly to points outside the State of Ohio. At all material times, AP has been
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 30
The parties stipulated, and I find based on the record as a whole that at all material times the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.35
40
45

2Throughout this decision, references to the complaint are to the extant and most recent
consolidated complaint, as amended.
JD–58–16
4
UNFAIR LABOR PRACTICES
Below, after a short introduction establishing some of the background facts, I set forth
factual findings and analysis for each of the unfair labor practice allegations advanced by the
General Counsel. 5
Introduction
AP manufactures processed foods for restaurant chains, retail businesses such as Wal-
Mart and Costco, and for sale in convenience stores such as 7-11 and Speedway. According to 10
the testimony of its senior vice president for human resources, Chuck Aardema, Advance Pierre
has approximately $1.7 billion in sales, and employs approximately 4100 employees in eleven
locations.
AP maintains a manufacturing facility near Cincinnati, Ohio, which is the site of the alleged 15
unfair labor practices in these cases. Approximately 600 hourly employees work there. The
production is carried out on ten separate production lines, where workers grind, process, box and
pack specified products
In the spring of 2015,3 the Union began meeting with AP employees. Union organizer 20
Ellen Vera testified that she first met with a group of AP Cincinnati plant workers on March 31,
after employee Sonja Guzman contacted the Union. (Guzman testified that the first meeting was
in approximately May, but the conflict is immaterial.) The evidence suggests that the first
“flyered” meeting (i.e., openly advertised meeting) was May 16. By the end of May,
approximately 165 union authorization cards had been signed. 25
Beginning in May, on a weekly or semiweekly basis the Union and employee supporters
distributed union literature, sometimes with authorization cards attached, at the entrances and
exits of AP’s parking lot. This distribution was open and could be seen “clearly” by AP HR
personnel and perhaps others who were standing in a smoking area adjacent to the facility. In 30
addition, there is evidence in the record that management received “union updates” from some
employees, including information about what occurred at union meetings, although it is unclear
how early that began.
In any event, by May 11, before the Union’s first openly publicized meeting, news of the 35
union activity had reached Senior Vice President of Human Resources Chuck Aardema, who has
overall responsibility for the human resources for the entire company nationwide. On that day,
Aardema received a call about the union activity from Renee Chernock, director of human
resources, whose office is in Blue Ash, Ohio, about ten minutes away from the Cincinnati plant,
and who provides HR support for five AP manufacturing plants including Cincinnati. Chernock 40
had received a piece of union literature from the Cincinnati plant manager, Petra Sterwerf, who
had received it from Operations Manager Dwayne Stanford. During this time period, Sterwerf
heard from Employee Relations Manager Mandy Ramirez that the Union was holding meetings.
AP moved quickly to oppose unionization. It hired a management consulting firm to assist 45
“with the campaign that had got started at the Cincinnati plant.” As discussed below, on May 13,
“because of the union activity that was occurring in the plant,” AP posted a no-solicitation/no-
distribution policy “so that associates knew what they could and could not do.”

3Throughout this decision, dates are 2015 unless otherwise stated.
JD–58–16
5
AP’s front line supervisors began meeting in May with production workers on the
production floor, stopping the lines and work for 20–25 minutes for a meeting, often near the end
of a shift. At these meetings, in which employees working on the line were brought to the back
area of the facility, the supervisors would meet with the lines under their supervision and pass out
literature opposing unionization, and the literature would be left in the hallway as well. At these 5
meetings, supervisors would discuss issues around the campaign. The first such piece of
literature, dated May 21, was distributed in several languages, reflecting the diverse and
immigrant workforce employed at AP. Chernock testified that there are at least five languages
spoken by employees in the facility.
10
These meetings were repeated, on a roughly weekly, or every other week basis, for five or
six times.4
I. Alleged solicitations to employees to revoke union authorization cards
(complaint paragraph 5(a))15
Facts
The midshift supervisory-led meetings with employees included instruction from
supervisors on how employees could rescind union authorization cards that they had already 20
signed. Employee Ronnie Fox works on Line 2 as a grinder. He testified that the supervisor for
Line 2, Daran Bishop, ran the meetings he attended. Among the matters Bishop raised was how
an employee “could get your card back.” Bishop read his comments and added things himself.
Fox testified that papers explaining how to rescind the union authorization cards were handed out
or placed on the table in the hallway.25
Machine Operator Kenneth Favors testified that his line supervisor, Bob Stacy, ran the
meetings he attended. According to Favors, Stacy “volunteered” to employees that “if you don’t
want to be part of the union that’s taking place, you can go ahead and sign this paper and that will
basically waive off your signature that you probably already signed. . . . If you sign this paper, it 30
would basically take you off the union.”
Line 9 Packer Sonja Guzman testified that her supervisor, Eric Hayes, told employees
“that if we had signed the cards, how to revoke that.” This information was not provided in
response to an employee question on how to revoke union cards.535
The literature distributed (or posted) by the AP supervisors included information on “How
to Withdraw Your Signed Union Authorization Card,” and stated the following:
How to Withdraw Your signed Authorization Card40
To All AP Foods Associates:

4Employee Sonja Guzman testified that these meetings occurred “[e]very day for a week.” I
am not sure if that is a translation error (there were some) or a misstatement, but I do not credit
that account of the frequency of the meetings. It is in contradiction to much other testimony and
documentary evidence.
5I credit Fox, Favors and Guzman on these points. The testimony was offered credibly.
Moreover, Bishop and Hayes testified but did not dispute this testimony. Stacy did not testify.
JD–58–16
6
Many of you have told us that you signed a union authorization card without
understanding that it is a legal statement authorizing the UFCW Local 75 union to
represent you. You have asked us how to withdraw your card. Here is how:
1. Use the attached form to request in writing that5
you want your card back and are withdrawing
your membership in the union;
2. Make a copy of the form and mail the original to10
the union address on the form.
3. Go to the union representative you gave the
union authorization card to, and tell them that
you want your card back.15
Please understand that other than giving you this information, AdvancePierre
Foods is not permitted by law to assist you in any other way in getting your card
returned.
20
On the back of the card was a preprinted letter to the Union, with space for a signature, dated,
and printed name, stating:
I write to inform you that I do not want to be "represented" by your union and I 25
hereby revoke and rescind any union "authorization" card, or any other indication
of support for your union, that I may have signed in the past. Any such card or
indication of support for your union is null and void, effective immediately.
Please return to me any union authorization card that I may have signed. Also, 30
please inform me in writing that you are honoring this revocation and rescission of
support for your union.
Please be aware that refusing to honor my revocation and rescission will violate
my rights under the National Labor Relations Act. Moreover, representing to my 35
employer (or any third party or "arbitrator ") that I support representation by your
union will similarly violate my legal rights.
Other literature provided to employees informed that “if you signed a union card and want
to withdraw your support, the union must give it to you. Contact HR for more information.” 40
(emphasis in original).
Analysis
The General Counsel alleges that the Respondent violated the Act by soliciting employees45
to withdraw their authorization cards. However, I find that there is no violation.
Under established Board law, an employer may provide only ministerial or passive
aid to employees who wish to withdraw from union membership. Thus, the
employer may lawfully provide neutral information to employees regarding their 50
right to withdraw their union support, provided that the employer offers no
JD–58–16
7
assistance, makes no attempt to monitor whether employees do so, and does not
create an atmosphere wherein employees would tend to feel peril in refraining
from [withdrawing].
Space Needle, LLC, 362 NLRB No. 11, slip op. at 2 (2015) (citations and internal quotations 5
omitted; Board’s bracketing).
In this case, the Respondent explained to employees in group meetings how they could
get their cards back. Instructions for accomplishing this were set forth in forms handed out to
employees and placed on a table. There was no attempt to require employees to inform 10
management (indirectly or directly) whether they availed themselves of the opportunity.
It has long been accepted by the Board that an employer’s provision to employees of
information on how to revoke their authorization cards is, without more, not unlawful assistance or
solicitation. R.L. White Co., 262 NLRB 575, 576 fn. 5 (1982); Aircraft Hydro-Forming, 221 NLRB 15
581, 583 (1975) (employer did not violate the Act by its “unrequested advice to employees as to
mechanics of revocation with no attempt to elicit information as to whether employees availed
themselves of this advice and with no assistance or offer of assistance”). See by contrast,
Space Needle, supra at slip op. at 3 (noting “Respondent’s attempt to monitor its employees’
responses to the letters by requiring the sample resignation letters to be requested directly from 20
management. This put the Respondent in the position of knowing exactly which employees chose
to resign their union membership—a fact obvious to employees—and thereby further pressured
employees to make that choice”); Vestal Nursing Center, 328 NLRB 87, 102 (1999) (employer
“provided envelopes, postage, and on several occasions, actually mailed letters for the
employees,” rendering assistance “neither passive nor ministerial”). Thus, AP’s explanation of 25
how to revoke authorization cards was, by itself, not unlawful.
The only remaining issue is whether the Respondent’s advice was given in a manner that
“creates an atmosphere where employees tend to feel peril in refraining from revoking.”
Typically, this includes providing information on solicitation in the context of significant and 30
coercive unfair labor practices. Here, by all evidence, these meetings occurred in the first month
or so of the open union drive (May and into June). As discussed below, there were other unfair
labor practices. However, even taken as a whole, the other unfair labor practices, while serious,
do not rise to the scope or level found in other cases where the mere provision of information to
employees is condemned. See, e.g., Mohawk Industries, 334 NLRB 1170 (2001).635

6In Mohawk, the Board found that during the same period of the solicitation of revocation
of cards,
the Respondent's misconduct included unlawfully threatening plant closure or
relocation, discharge, loss of jobs and benefits, and unspecified reprisals. It also
threatened employees that it had a list of union supporters and planned to "ride"
the instigators and issue warnings, and threatened them with the futility of
selecting the Union as their bargaining representative. Further, it unlawfully
interrogated employees and created among them an impression of surveillance of
their union activity. Finally, the Respondent discharged two employees in violation
of the Act. In these circumstances, there can be no question under settled case
law that the Respondent's solicitation of employees to revoke authorization cards
was an independent unfair labor practice.
334 NLRB at 1171.
JD–58–16
8
The General Counsel asserts (GC Br. at 24) that “[b]y stating to employees that the Union
must return cards upon request, Respondent has solicited revocation of union support.” He cites
Mohawk, supra, and Vestal Nursing Home, supra, for this proposition. However, neither case
condemns that formulation per se. Rather, in both cases, the violation turned on the commission
of “numerous and substantial unfair labor practices close in time to the solicitation to employees 5
to revoke cards” (Mohawk, supra at 1171) of much greater scope and severity than is present
here. See, unfair labor practices in Mohawk, supra; see also extensive list of unfair labor
practices found in Vestal Nursing Home, 328 NLRB at 103–104. Additionally, in Mohawk the
Board relied upon the employer’s announcement to employees that “one option for obtaining
revocation forms was to visit the Respondent’s office, giving the company an opportunity to 10
observe whether they availed themselves of their right to revoke union authorizations” (supra at
1171 (internal quotation omitted)) and in Vestal Nursing Home the Board also relied upon the
additional finding that the employer “provided envelopes, postage, and on several occasions,
actually mailed the letters for the employees.” 328 NLRB at 102. These cases do not advance
the General Counsel’s position here. I will recommend dismissal of these allegations.15
II. Maintenance and enforcement of the 2001 solicitation policy;
surveillance of union literature distribution in the cafeteria/breakroom;
the disciplining of Cotto and Guzman; interrogation of Cotto
(complaint paragraphs 5(b), (e), (f), 6(a) and (c), and oral amendment (Tr. 566))20
Facts
As noted, above, in response to learning of the union campaign, Director of Human
Resources Chernock directed then Employee Relations Manager Ramirez7 to post a copy of the 25
solicitation/distribution policy.
Chernock testified that the policy “is something we’ve always had posted” on the
production hallway HR bulletin board. But upon learning on May 13 that employees were
distributing authorization cards, Chernock and Ramirez checked the bulletin board and noticed 30
that it was no longer posted. Neither knew why it was no longer posted—the bulletin boards were
unlocked and both speculated that someone unknown had removed it. Alternatively, they both
mentioned that the hallway and bulletin board had been cleaned and painted in the fall of 2014
when the new plant manager Sterwerf started managing the facility, suggesting that this may
have been when the policy was taken down. 35
In any event, the policy was reposted May 13, in response to the reports of union activity.
Ramirez explained that “[b]ecause of the union activity that was occurring in the plant, we wanted
to make sure that it was there so that associates knew what they could and could not do.”
40
Although the policy had been revised in January 2012, neither Chernock nor Ramirez
claimed familiarity with the substance of the new policy. Ramirez went to her computer and from
the shared drive where the human resources policies are maintained, printed and posted the
2001 “no solicitation and no distribution” policy, not the one from 2012. This policy stated:
45
I. Purpose
To set forth a "no solicitation and no distribution" policy in order that the

7Ramirez was promoted to plant HR manager in approximately August 2015, when manager
Ernie Hayes left.
JD–58–16
9
rights of everyone are protected so we may give our undivided attention to
the work of the Company.
Il. APPLICATION
5
All employees of the Company.
Ill. POLICY
A. It is a long-standing belief of the Company to provide a work place free10
from unnecessary interference so that all employees can work most
effectively to achieve the highest quality results possible.
B. Accordingly, the following rules apply and should be understood by all
employees.15
1. No employee ,is permitted to solicit memberships, contributions,
conduct similar personal business or distribute printed matter for
any such purpose at any time in "immediate work areas."
20
2. No employee is permitted to solicit memberships, contributions,
conduct similar personal business or distribute printed matter for
any such purpose during specified periods of the workday when
either the soliciting or the solicited employee is supposed to be
engaged in performing assigned work.25
3. In addition to the limitations expressed in paragraphs 1: and 2.
above, no employee is permitted to distribute literature for any
such purpose at any time in employee work areas or work
corridors.30
4. No employee is permitted to sell merchandise, subscriptions,
tickets, chances or similar items under the circumstances
described in paragraphs 1. through 3. above.
35
5. Solicitations of any kind or distribution of literature by non-
employees is not permitted at any time on the premises of the
Company.
6. No persons shall deface any Company property, including40
buildings, hallways, or equipment by affixing any poster, sign,
sticker or other advertising or propaganda matter.
7. Consistent with our long-standing practices, the only exceptions to
the above rules are the annual United Way campaign, and other45
Company sponsored fund-raising campaigns for the direct benefit
of the Company when employees are given an opportunity to
make a voluntary contribution if they so desire.
8. This revision replaces and supersedes any prior policies or50
interpretations on the subject of solicitations and distributions.
JD–58–16
10
Ramirez testified that she did not know that the 2001 policy had been replaced by the
2012 policy and that she had no reason to review the policy before posting it. Neither Ramirez
nor any other official of AP had any explanation for why the 2001 policy continued to be in the
company’s shared computer HR files. 5
In addition to this posting, for approximately a month in May and June, after the Union
flyering, a sign was posted on the door of the main employee entrance that stated:
“AdvancePierre Foods has a non-solicitation and non-distribution policy.” In smaller print at the
bottom it stated: “Any questions should be directed to Human Resources. Thank You.”810
A few weeks after the May 13 posting of the 2001 policy, in June, Ramirez received
complaints that employees on break were tired of other employees talking to them about the
Union. Chernock heard from Ramirez that “an employee had approached her and complained
that people were handing out union literature in the breakroom.”9 One of the employees gave 15
Ramirez some of the union literature handed to them in the break room. Plant manager Sterwerf
testified that she heard from Ramirez that employee Carmen Cotto was handing out union
material in the breakrooms. She discussed this with Ramirez and “several” other unidentified
people (probably including Chernock). Sterwerf agreed that Cotto should be called into a meeting
and informed that this was not allowed.20
From her office computer, Ramirez was able to view live feed and video recording from
cameras maintained in various parts of the facility, including two cameras in the employee
breakroom. On June 8, after the discussions with Chernock referenced above, Ramirez used the
video-recording system to view video that showed employee Carmen Cotto passing out papers to 25
employees in the cafeteria. On the video, Ramirez also witnessed Cotto handing
“a stack of papers” to employee Sonja Guzman.
Ramirez discussed the matter with Chernock. The next day, June 9, they called a
supervisor and had him bring Cotto to the HR office. Chernock identified this supervisor as Daran 30
Bishop, who supervised the line Cotto worked on, line 1. Cotto identified the supervisor who

8It is unclear who posted this door notice. Ramirez denied knowing about it, although she
described “a small sticker” on a door to the facility that is still there and which says “something to
the effect of we have a no solicitation/distribution policy.” That seems to be something different
than what looks (GC 13) to be an 8.5 X 11 inch piece of paper posted in the middle of a doorway.
Fox identified this as being posted after the union flyering but taken down at some point
afterwards. Chernock testified that “[a]t some point” in “the May timeframe,” . . . there was a
paper that was posted on one of the doors of the facility about the fact that Pierre has a no
solicitation/no distribution policy.” Favors described a similar notice being posted “[r]ight outside
of the front entrance of where the employees walk in, not where visitors or guests walked in.”
The clear weight of the evidence is that the notice in GC 13 was posted on the front door of the
employee entrance after the union activity began, and that it remained posted for about a month.
And while no one admitted posting it, it remained up long enough, with its reference to contacting
the HR department with any questions, and is consistent with, albeit even more overbroad than
the policy posted at the HR bulletin board, that I conclude that AP management is responsible for
the maintenance of this posting. It would not have remained up for as long as it did if it had been
posted by someone not an agent of AP.
9The employee breakroom and the cafeteria are the same place, used for breaks and meals.
I refer to them interchangeably throughout this decision.
JD–58–16
11
brought her to the office as Bob Stacy. Cotto testified that Stacy told her she had to go to human
resources. Cotto asked why, but Stacy said, “I can’t tell you”, so you have to go with me.” This
was the first time in her nearly 27 years at the facility that Cotto had been called to HR regarding
her conduct.
5
Ramirez and Chernock told Cotto that they had received a complaint about her distributing
materials in the lunchroom and that on video Ramirez had seen her distributing papers in the
cafeteria. She told Cotto, “according to our solicitation policy, she was not allowed to do that.”
Cotto testified credibly that Chernock told her she could be suspended or fired for distributing the
materials.10 According to Chernock’s affidavit, which I credit, “we told Cotto that she would 10
receive a written warning for distributing.”11
Cotto testified credibly that at this meeting she was asked about Sonja Guzman: “She told
me Sonja Guzman—she gave my paper to the other people. I said no. The only piece of paper
myself that day, not her.”12 Cotto denied disturbing people, and asked who had complained 15
about her, but Chernock and Ramirez said they were not allowed to tell her. They verbally
warned Cotto at that time for not abiding by the solicitation policy, disciplining her for distributing
documents and telling Cotto she was not allowed to pass out documents in the cafeteria/break
room under AP’s solicitation policy.13
20
According to Chernock, Mandy printed and gave Cotto a copy of the 2001 policy, although
Cotto denied that she was provided a copy. Cotto told Ramirez and Chernock that the union
representative had told her she could pass out information on her free time. Cotto told them she
was going to contact the Union. According to Cotto, Ramirez told her that the paper she was

10As discussed below, they told Fox the same thing when he received a verbal warning, either
that day or the day before.
11At trial, Chernock testified that “[w]e told her that she would receive a verbal warning.” She
described her statement in her sworn pretrial affidavit that “[Cotto] would receive a written
warning” as an “error.” However, I credit her sworn pretrial statement which is an admission
pursuant to Federal Rule of Evidence (F.R.E.) 801(d)(2). I am particularly convinced by the fact
that before signing it, Chernock specifically corrected her affidavit to state that “We did not write
her up at that time but planned to give her the written warning the following day.” While Ramirez
also claimed they told Cotto she was getting a verbal warning, Cotto denied it. All of this is a little
beside the point. A warning is verbal, until it is converted to writing. My considered conclusion is
that the intention was to formalize the discipline as a written warning the following day but, for
reasons described below, that decision was not carried out, and Cotto never received more than
a verbal warning as part of this incident.
12I credit this testimony. It was credibly offered, but also, it is highly plausible that Chernock
inquired whether Guzman had passed out papers too. The managers saw Cotto pass them out
and hand “a stack” to Guzman. Given the discipline of Cotto for distributing, it makes sense that
they wanted to know, and as Cotto testified, questioned, whether Guzman had distributed the
papers she had been seen on video receiving.
13Although I have found that the intent as of that day was to follow up the verbal warning with
a written warning, there is no dispute that a verbal warning is the first step in AP’s progressive
discipline system.
JD–58–16
12
giving out to the people from the Union contained “li[es].” Cotto disagreed. The meeting lasted
approximately five minutes.14
After Cotto left, Chernock and Ramirez summoned Eric Hayes, Sonja Guzman’s
supervisor, and told him to send Guzman to them. This was the first time, since being hired in 5
2006, that Guzman had been called to HR. Chernock testified that they had not seen Guzman
distributing leaflets—the video showed her receiving “a stack of papers” from Cotto—but they
“wanted to remind her of the solicitation policy” and that this was “a friendly reminder not to
distribute.” In the meeting, Chernock and Ramirez (with Ramirez, who speaks Spanish
translating) told Guzman of the complaints of literature being passed out in the cafeteria and that 10
they had seen “historical video” of Carmen Cotto handing literature to Guzman.
Guzman told a different story. Guzman testified that she was verbally disciplined in this
meeting for distributing flyers in the cafeteria. She testified that she denied distributing, but
received “verbal” discipline.” Ramirez testified that “Sonja became very upset” and told Ramirez 15
that she “was trying to intimidate her.” (Guzman denied saying that, but admitted she felt it).
Ramirez testified that she told her “there’s no reason to feel intimidated, it is just a conversation.”
This conversation lasted two or three minutes.
To the extent the question is, was Guzman verbally disciplined, my conclusion is, yes, she
was. Clearly, Guzman was verbally warned not to hand out flyers and forbidden to do so. There
is something intangible about a verbal warning that is not recorded—as AP management testified
was the practice—although they also testified that it was the first step in a progressive discipline
system (one wonders how they keep track of verbal discipline). This was a verbal warning on a
disciplinary matter, and I believe that this warning would have been used against her had she
been caught later that day distributing literature in contravention of this warning.15

14I have no doubt that Ramirez and Chernock knew that Cotto was passing out union
literature when they decided to discipline her and that they were motivated by that knowledge. As
noted, Ramirez had received complaints about union literature being passed out in the break
room and Sterwerf testified that she had heard from Ramirez that Cotto was handing out union
material in the breakroom. Management was on alert for union activity. On the other hand, I
think it likely, and I find, that Chernock and Ramirez provided Cotto a copy of the 2001 solicitation
policy. They testified credibly to this effect and it seems entirely plausible that while disciplining
Cotto, allegedly for violating the solicitation policy, that they would provide her with a copy. As
noted, Ramirez could easily retrieve a copy from her computer, and I believe she did.

15The Respondent’s claim that Guzman was not being disciplined, but—uniquely in her nine-
year tenure—was being summoned to the HR office to be given “a friendly reminder” not to
distribute literatures is a little bit rich. She was called to the office because she was observed on
a video receiving “a stack” of union literature from an employee disciplined for distributing it.
Clearly, Guzman was suspected of passing out union literature. As referenced, I believe that had
Guzman been observed passing out literature later in the day, she would have been subject to
stiffer discipline, not a first offense. In this regard, I note the evidence that of the two employees
seen on videotape, Cotto, who was the distributer, was going to get a written warning (until a
decision was made that the whole thing had to be called off). It makes sense then that the lesser
“offense” of receiving a stack of union literature, obviously to be distributed, would warrant a
paperless verbal warning. But it defies credulity, and I do not accept that Guzman was called to
the office as a “friendly reminder not to distribute.”
JD–58–16
13
Later that day, Cotto and Guzman returned to Ramirez’s office. Cotto “came in and said
that she wanted to make sure that we were aware that Sonja had not been distributing any
documents in the cafeteria.” During this conversation, Guzman told Ramirez and Chernock that
she had put the information she received into her locker.16
5
After that, this same day, a group of other employees, including Cotto, came by Ramirez’s
office and asked for a copy of the policy. These included Charles Rogers, who initially came by
himself. About an hour later, Rogers returned with Ronnie Fox, Marcus Thompson, and David
Moore, and Carmen Cotto came with them. All of these employees were provided with copies of
the 2001 solicitation policy. Rogers questioned why the policy was dated 2001.10
In her meeting with Chernock and Ramirez, Cotto had told them that the Union had told
her she was allowed to distribute literature. Chernock suggested that this prompted her and
Ramirez to contact legal counsel. Ramirez testified that the next morning the Vice President of
Human Resources for AP, Chuck Aardema, called and asked for a copy of the solicitation policy.15
Ramirez and Chernock were told by Aardema, probably June 10, that the posted policy
was outdated and they were to remove the posted policy from the production hallway and post
the 2012 policy. They took down the 2001 policy and posted the 2012 policy. They called Cotto
in and told her they were rescinding the warning she had been given, because it “was in 20
reference to an outdated policy.” Chernock testified that they “apologized to her” and told her “[i]t
was an honest mistake.” They gave Cotto a letter, drafted by Chernock, dated June 10, which
stated:
On June 9, 2015 we had a conversation regarding AdvancePierre Foods Non-25
solicitation and Distribution Policy. When we spoke we had given you an outdated
policy. Attached is the policy that has been in place since 2012. The memo is
also to let you know that we are rescinding the prior warning due to the
interpretation of a prior policy.
30
Cotto could not recall if the 2012 policy was attached, but I find, in accordance with
Ramirez’s testimony, that it was.
Ramirez told Cotto to tell Fox to come to her office and to tell the other employees
(Thompson, Moore, and Rogers) who had been given the older policy to return to her office. 35
These employees were called one at a time into Ramirez’s office and given a highlighted piece of
paper listing the 2012 solicitation policy. Ramirez told Fox that she was sorry for the
miscommunication.
Ramirez testified that she did not call Guzman back to provide her a new policy. Ramirez 40
indicated there was no reason to do so because she had not disciplined Guzman and not
provided her with a copy of the 2001 policy. Guzman disputes this. She says that she was later
recalled to the office and told “that the rules had changed, that it was fine as to what I was doing.”
I credit Guzman on this. She was a credible and strong witness. Moreover, it is implausible that
Ramirez would call back Fox, Rogers, Thompson, and Moore to make sure they knew about the 45
updated policy, but not call back Guzman whom they had admonished under the wrong 2001

16Cotto denied that she returned with Guzman. I credit Ramirez’s recollection on this point. I
also note that there would have been no reason for this return visit if Guzman had not left the first
meeting with Ramirez and Chernock believing that she was accused of distributing literature in
the breakroom.
JD–58–16
14
policy. By their own account, Guzman had been sought out by Ramirez and Chernock, and told
to come to Ramirez’s office for the purpose of being warned that she must comply with the 2001
solicitation policy. It does not make a lot of sense that Ramirez would seek out everyone they
talked to except Guzman to explain the change in policy. I credit Guzman.
5
Analysis
a. Maintenance and enforcement of the 2001 solicitation/distribution policy
As set forth above, on May 13, “because of the union activity that was occurring in the 10
plant,” AP posted a no-solicitation/no-distribution policy “so that associates knew what they could
and could not do.” In addition, after the Union flyering, a sign was posted on the door of the main
employee entrance that stated: “AdvancePierre Foods has a non-solicitation and non-distribution
policy.” In smaller print at the bottom it stated: “Any questions should be directed to Human
Resources. Thank You.” As I have found, although no one took responsibility for posting this 15
sign—which is even more overbroad than the 2001 policy—AP management is responsible for
this posting and its maintenance for approximately a month.
The Respondent does not dispute that this 2001 policy, not to mention the door flyer, were
unlawfully overbroad.17 And they were maintained for nearly a month—until June 10—after the 20
Respondent first learned of the Union campaign on May 11, and within two days posted the 2001
policy. Indeed, the Respondent told Cotto that it was the basis for disciplining her, and Guzman
was warned that Respondent was enforcing the policy. In addition, in response to the disciplining
of Cotto, four employees came to the HR office and asked for and received a copy of the
disciplinary policy—they were provided the 2001 disciplinary policy. Thus, the unlawfully 25
overbroad policy was maintained and in some instances enforced, from at least May 13 to June
10. The maintenance and enforcement of this overbroad policy violated Section 8(a)(1) of the
Act.18

17Among other things, the 2001 policy prohibits distribution of literature for a broad range of
purposes that would include distribution of union literature “at any time in employee work areas or
work corridors.” A work “corridor,” which, logically, must be something other than a “work area,”
reasonably a passageway leading to a work area, constitutes an overbroad limitation on
distribution. Stoddard-Quirk, Mfg., 138 NLRB 615 (1962). In addition, the door flyer policy is
reasonably understood as an unnuanced (and unlawful) flat ban on all distribution and solicitation
at the employer’s premises.
18The Respondent’s contention that the 2001 policy was “mistakenly” maintained or enforced
is not entirely accurate, and not at all relevant. It is not entirely accurate to the extent that it
ignores that Ramirez and Chernock consulted the terms of the policy as part of the discipline of
Cotto and Guzman. In other words, even if they did not necessarily know it was illegal, or “the
wrong” policy, they knew what they were maintaining. However, even if the Respondent acted by
mistake, this does not change the significance of the fact that the policy was maintained and
enforced for nearly a month. It has long been settled that “interference, restraint, and coercion
under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the
coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of employee rights under the Act.
American Freightway Co., 124 NLRB 146, 147 (1959); Yoshi’s Japanese Restaurant & Jazz
House, 330 NLRB 1339, 1339, fn. 3 (2000) (employer’s misunderstanding of the law not relevant
to assessing unlawful interference under 8(a)(1)).
JD–58–16
15
b. Surveillance of union literature distribution in the cafeteria
The General Counsel alleges that Ramirez’s review of the videotape of Cotto distributing
literature in the cafeteria constituted unlawful surveillance in violation of Section 8(a)(1) of the Act.
5
An employer’s videotaping or photographing of employees engaged in union or protected
concerted activity, without proper justification, violates the Act, as it has a tendency to intimidate
employees. F.W. Woolworth Co., 310 NLRB 1197, 1197 (1993); Titan Wheel Corporation of
Illinois, 333 NLRB 190, 194 (2001); Frontier Hotel & Casino, 323 NLRB 815, 837 (1997).
Photographing in the mere "belief that something might happen does not justify the employer's 10
conduct when balanced against the tendency of that conduct to interfere with employees' right to
engage in concerted activity." National Steel & Shipbuilding Co., 324 NLRB 499, 499 (1997),
review denied, 156 F.3d 1268 (D.C. Cir. 1998).
Here, no justification is offered for the ongoing videotaping of the employees’ breakroom. 15
It is unlawful. However, the specific allegation at issue (Tr. 566) is Ramirez’s surveillance of
Cotto’s distribution of union literature in the breakroom. This too was unlawful.
Ramirez was engaging in the surveillance in response to complaints from employees who
were tired of other employee talking to them about the Union while on break. More specifically, 20
the decision to view the videotape of the breakroom was made after an employee complained
and provided Ramirez with union literature given to them in the break room. The Respondent
contends that “Ramirez was following up on complaints from employees, like she would in any
other situation.” (R. Br. at 28). However, the complaints prompting the surveillance were that
employees were engaged in protected and concerted activity. Ramirez and Chernock claim that 25
the surveillance was warranted because the distribution of literature was not permitted under the
Respondent’s rules. As discussed below this rule was unlawful, as maintained and applied.
Indeed, that is not seriously contested. Thus, the “justification” for the surveillance was to
observe an employee engaging in protected activity. As in F.W. Woolworth, supra at 1197,
“Here, the record provides no basis for the Respondent reasonably to have anticipated 30
misconduct by those handbilling, and there is no evidence that misconduct did, in fact, occur.”
On the other hand, employees learning that—specifically, of all their activities in the breakroom—
their union activities in the breakroom would be subject to video review, would reasonably be
likely to be intimidated. The surveillance of Cotto’s distribution of union literature (and Guzman’s
receipt of it), without valid justification, is a straightforward violation of Section 8(a)(1) of the Act. 35
c. The disciplining of Cotto and Guzman
The General Counsel alleges that the disciplining of Cotto and Guzman violated Section
8(a)(3) of the Act. I agree and find that both disciplinary warnings were motivated by the union 40
activity of these employees, in violation of Section 8(a)(3) of the Act.19
As discussed above, the Respondent’s application of the unlawfully overbroad 2001 policy
to Cotto and Guzman constitutes a violation of Section 8(a)(1) of the Act, without regard to the
Respondent’s motives. Continental Group, Inc., 357 NLRB 409, 412 (2011). However, that does 45
not answer the question of whether the discipline was a violation of Section 8(a)(3). The

19As any conduct found to be a violation of Sec. 8(a)(3) would also discourage employees'
Sec. 7 rights, any violation of Sec. 8(a)(3) is also a derivative violation of Section 8(a)(1).
Chinese Daily News, 346 NLRB 906, 933 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007).
JD–58–16
16
Respondent contends that enforcement of the 2001 policy was without ill motive, and was
rescinded the following day. The reliance on the 2001 policy, argues the Respondent, was “not
intentional or motivated by a desire to interfere with employees’ Section 7 rights.”
However, I do not accept that the true motive for disciplining Cotto and Guzman was their 5
violation of a facially neutral (but unlawfully) overbroad prohibition on the distribution of all
nonwork materials. In this case, the Employer’s claim that the discipline rested on application of
the 2001 policy operates as a pretext, albeit, unusually, one unlawful in its own right.

In truth, the 2001 policy does not sweep so broadly as to proscribe all nonwork distribution 10
even in all nonwork areas, though Ramirez and Chernock claim to have read it that way. In fact,
as discussed (below) with regard to the clipboard issue, the discipline of Cotto and Guzman
occurred at the very time when the Respondent was actively looking for and trying to squelch
union activity within the facility. As discussed below, the unlawful clipboard search occurred the
day before or the same day. In fact, as I have found, Ramirez and Chernock knew that Cotto was 15
distributing union literature in the breakroom, they knew that Guzman had received union
literature from Cotto, and they knew that it was union literature that they disciplined the
employees for handling. The whole incident was in response to employee complaints explicitly
about distribution of union materials.
20
The enforcement of the 2001 policy against Cotto and Guzman was essentially a pretext,
designed to cover a direct effort to squelch, punish and discriminate against union activity. This
discriminatory discipline for engaging in union activity is a straightforward violation of Section
8(a)(3) regardless of whether the Respondent now acknowledges that its solicitation/distribution
policy was unlawfully overbroad in violation of Section 8(a)(1) of the Act. 25
The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management Corp., 462
U.S. 393, 395, (1983) (approving Wright Line analysis). Under the Wright Line framework, as 30
subsequently developed by the Board, the elements required in order for the General Counsel to
satisfy its burden to show that an employee’s protected activity was a motivating factor in an
employer’s adverse action, “are union or protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer.” Adams & Associates, Inc., 363 NLRB
No. 193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB No. 141, slip op. at 4 (2014); enfd.35
801 F.3d 767 (7th Cir. 2015). Such showing proves a violation of the Act subject to the following
affirmative defense: the employer, even if it fails to meet or neutralize the General Counsel's
showing, can avoid the finding that it violated the Act by “demonstrat[ing] that the same action
would have taken place in the absence of the protected conduct.” Wright Line, supra at 1089.
40
While extended analysis is not required, all of the elements of Wright Line, supra, are met
here. Guzman and Cotto were engaged in union activity when they distributed (or received)
union literature, AP learned of it, and unlawfully disciplined them for it. By Respondent’s own
admission, such discipline would be in violation of Section 8(a)(1). As discussed above, they
were targeted because they were distributing union literature, which was the specific complaint of 45
employees that prompted the review of the video in the same time frame that the Respondent
was cracking down on union activity in the facility. There is nothing in the record to suggest that
Guzman and Cotto would have been disciplined for violating the 2001 policy had they been
exchanging Girl Scout cookies in the breakroom. The Respondent has failed to meet its burden
under Wright Line of demonstrating that it would have taken the same action against them in the 50
absence of union activity.
JD–58–16
17
d. The Respondent’s remediation defense
The Respondent contends that it repudiated its unlawful conduct in a manner that
obviates the violations. Board precedent provides for this, but in order to be effective a 5
repudiation of a violation must be timely, unambiguous, specific in nature to the coercive conduct,
and free from other proscribed illegal conduct. Passavant Memorial Area Hospital, 237 NLRB
138 (1978); Voith Industrial Services, Inc., 363 NLRB No. 116, slip op. at 4 (2016). Furthermore,
there must be adequate publication of the repudiation to the employees involved and there must
be no proscribed conduct on the employer's part after the publication. And, finally, the Board has 10
pointed out that such repudiation or disavowal of coercive conduct should give assurances to
employees that in the future their employer will not interfere with the exercise of their Section 7
rights. Passavant, supra at 138–139.
Here, the repudiation did not meet that standard. While the Respondent moved quickly—15
the next day—to rescind Cotto’s discipline, and to give out the updated solicitation/distribution
policy to Cotto and the four employees it gave the 2001 policy to the day before, that is an
incomplete and inadequate repudiation, given the violations.
First of all the unlawful 2001 policy, and then the even more overbroad door flyer policy, 20
had been posted for more than three weeks, viewed and passed by employees on a daily basis.
No effort was made to communicate with the employees generally about the unlawfulness of the
previous policy, or even about the change in the policy. Thus, the scope of even the attempted
repudiation did not extend to the scope of the violation. Obviously, providing the new policy to
five employees would not constitute adequate publication of any repudiation. Moreover, there 25
was no repudiation as to Fox’s disciplinary warning (discussed below). Further, even as to
Guzman and Cotto, there were no assurances of a future commitment not to interfere with their
Section 7 rights and no admission or even implicit acknowledgement of unlawful conduct by the
Respondent in what they had done. Rather, for Cotto it was framed as a “mistake” involving
reinterpretation of an outdated policy (rescinding “due to the interpretation of a prior policy”), and 30
for Guzman the Respondent merely told her, “that the rules had changed, that it was fine as to
what I was doing.” This is insufficiently specific, insufficient as a disavowal, insufficient as an
admission of wrongdoing. I reject the Respondent’s repudiation defense.
35
e. Interrogation
The complaint alleges two incidents of interrogation (complaint paragraphs 5(e) and (f)),
both during the same time period. Both incidents, as pled, involve an alleged interrogation by
Chernock and Ramirez at the HR office. One, 5(e), involves interrogation about the activities of 40
another employee. One, 5(f) involves only interrogation about the subject employee’s union
activities.
On brief (GC Br. at 31), the General Counsel alleges only that Cotto was unlawfully
interrogated during her June 9 meeting with Chernock and Ramirez, when she was asked 45
whether Guzman was distributing literature. As discussed above, I have found that during the
meeting with Cotto, Chernock asked her about whether Guzman was distributing the papers that
Ramirez saw (on video) Cotto handing to her. This fits the allegations in paragraph 5(e) (at least
as to interrogating the employee about another employee’s union activity).
50
JD–58–16
18
It is well established that not every interrogation is unlawful under the Act. Whether the
questioning of an employee constitutes an unlawful coercive interrogation must be considered
under all the circumstances and there are no particular factors "to be mechanically applied in
each case." Rossmore House, 269 NLRB 1176, 1178 (1984), enfd. 760 F.2d 1006 (9th Cir.
1985); Westwood Health Care Center, 330 NLRB 935, 939 (2000). While the Board has 5
identified a number of factors that are “useful indicia” in determining whether the questioning of
an employee constitutes an unlawful interrogation,20 the Board has explained that "[i]n the final
analysis, our task is to determine whether under all the circumstances the questioning at issue
would reasonably tend to coerce the employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the Act." Westwood, supra at 940; 10
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).21
I have no doubt that this questioning, brief as it was, was coercive and unlawful. An
employee is called off the shop floor into the HR office and confronted by two top HR officials. In
the midst of unlawfully disciplining her for union activity, they ask about whether another 15
employee was also engaged in the same activity, apparently, and actually, for the purpose of
taking action against the other employee. This is clearly an unlawful interrogation. The
Respondent’s defense is limited to the assertion that it did not happen. I have found otherwise.22

20Westwood Health Care Center, 330 NLRB at 939, quoting Perdue Farms Inc. v. NLRB, 144
F.3d 830, 835 (D.C. Cir. 1998). These include the "Bourne factors," enunciated in Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964), and set forth in Westwood, supra at 939:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g., was employee called from work to the
boss's office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.
21Of course, whether or not the questioned employee was actually intimidated is irrelevant. “It
is well settled that the basic test for evaluating whether there has been a violation of Section
8(a)(1) is an objective test, i.e., whether the conduct in question would reasonably have a
tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights,
and not a subjective test having to do with whether the employee in question was actually
intimidated.” Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000), enfd. 255 F.3d 363 (7th Cir.
2001) (Board’s emphasis). Accord, Miller Electric Pump, 334 NLRB 824, 825 (2001); Joy
Recovery Technology Corp., 320 NLRB 356, 356 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998).
22The General Counsel does not allege on brief that Guzman was interrogated in her meeting
with Chernock and Ramirez. I will dismiss the second pled allegation of interrogation, complaint
paragraph 5(f).
The General Counsel also contends (GC Br. at 31–32) that an interrogation violation should
be found based on Guzman’s testimony that the “plant manager,” whom she identified as
“Dwayne,” asked her, essentially, who was behind the union drive. Dwayne Stanford, who was
the operations manager (not the plant manager), testified and denied asking Guzman anything
JD–58–16
19
III. Searching of clipboards, confiscation of cards; enforcement of
solicitation/distribution policy; the disciplining of Fox
(complaint paragraphs 5(b), (c) and (d) and 6(b))
5
Facts
Many AP employees carry a clipboard with a closed metal container affixed to the top that
is used to carry daily work materials. Typically this clipboard box holds work materials such as a
knife, pens, and daily paperwork. This daily paperwork, called “meat sheets” and issued by AP, 10
indicate the grinding and meat specifications for the day’s work. The meat sheets are turned in at
the end of the day.
Employee Fox testified that he and others usually keep the clipboard in their locker
between shifts. Within the year, AP started issuing clipboards to new employees. Fox still uses 15
the one he bought, before AP started providing them. It is similar to the ones purchased by AP
but his older clipboard is rusted inside and out.
AP has developed Good Manufacturing Practices (GMPs), which are rules and standards
designed to ensure food quality and sanitation standards on the workplace floor. The current
GMP document was entered into evidence. Supervisor Bishop testified that rule 6.5 generally
governed the items employees could have in their possession on the production floor. Rule 6.5
states:
Spitting is forbidden inside or outside of the building. No food, drinks, use of
tobacco products, medications including cough drops, toothpicks, candy, breath-20
strips, gum etc. are allowed in any designated production, warehouse, cooler,
freezer, trash dock, attic, dock areas or in fork-lift/pallet jack, compressor, battery,
boiler or engine rooms.
___________________________
like this. Employer Diana Concepcion also testified that “Eric [Hayes] asked me if I was in
agreement with the union” and another “manager” asked her “if a person or a girl was giving out
the cards within the company and to let him know if somebody was giving out the cards.”
Stanford denied having this conversation with Concepcion. Hayes denied ever speaking to
Concepcion about the Union. None of these allegations are set forth in the complaint, or were the
subject of a motion to amend. Accordingly, I make no finding regarding them. The General
Counsel contends that a violation should be found as to the first of these allegations and that,
although not alleged, the issue was fully litigated. I do not agree. First of all, the complaint was
amended several times before and during the hearing as to a variety of matters—but not this. I
do not know of a reason that the matter could not have been raised during the hearing. Second,
the allegation was not admitted to by the Respondent, or any of its witnesses, leaving the
possibility that, had it been alleged as a violation, the Respondent might have undertaken a
different or more vigorous defense. As noted, Stanford denied the allegation, but it is not even
entirely clear that he is the alleged perpetrator. It could have been the then plant manager, or
someone else. Given that it was unalleged and factually denied, the allegation is too uncertain, in
my view, to find that it was fully and fairly litigated. See Dalton School, 364 NLRB No. 18, slip op.
at 2 (2016) (interrogation not fully and fairly litigated where respondent not put on notice that the
facts pertaining to the encounter would be used to prove a separate interrogation violation).
JD–58–16
20
In addition, the testimony of employees and managers was largely in agreement that
items such as chewing gum, eyelash or fingernail enhancers, and lotion are not permitted on the
production floor, including in clipboards. However, based on employee testimony, certain items
like check stubs or photographs, and occasionally other personal items are sometimes kept in the
clipboards, whether or not in compliance with the GMPs prohibitions. Similarly, a rusted clipboard 5
could be considered not to be in compliance with GMPs, but Fox’s rusted clipboard was never
raised as an issue by management.23 Indeed, the consistent employee testimony is that prior to
June 8, while supervisors may have done “QA” (quality assurance) audits to make sure the
employees’ knives matched the appropriate grinder, and checked tagout/lockout devices, both of
which are kept in clipboards, supervisors had never before generally searched inside employee 10
clipboards looking for papers and other contraband.24
Chernock testified that in a supervisors/management meeting she heard concerns that
employees were passing out union authorization cards on the production floor. In response,
Chernock, Aardema, and Plant Manager Sterwerf decided to conduct an audit on all grinders and 15
machine operators, which would involve checking clipboards for items prohibited from being on
the plant floor. Chernock was normally not involved in a decision to conduct an audit of the
clipboards. According to supervisor Bishop, at this meeting all first and second shift supervisors
were directed to conduct a “clipboard audit.”
20
On or about June 8, management performed a search of employee clipboards. Employee
Diana Concepcion testified that supervisor Bishop approached her and asked to check her
clipboard. After he did, he told her it was fine. He found pay stubs and some hand lotion and told
her to put the stubs in her pocket “because somebody could steal my pay stubs.” He did not
confiscate the lotion or pay stubs.25 Bishop then searched another clipboard that was unattended 25
nearby that belonged to employee Vianey Guzman. Guzman was not present during this
search.26
30

23Bishop testified that he did not notice rust on Fox’s clipboard and if he had he would have
had the clipboard replaced. The implication was that Fox’s clipboard was not rusted. I note that
neither side produced the clipboard for inspection at the hearing. I found Fox’s demeanor highly
credible and I credit his testimony as to the condition of the clipboard he worked with every day.
24Bishop agreed (based on leading questioning, see Tr. 668, 670) that the GMPs were
enforced by “routine” and “regular” audits and by “essentially watching everybody on the floor.”
He claimed that he tries to do audits randomly, but also monthly looking for “[s]tuff that doesn’t
belong in the clipboard, toolboxes, cleanliness.” I cannot credit this. Based on the more specific,
uniform, and credited employee testimony, I find that clipboards were rarely if ever searched by
supervisors prior to on or about June 8, 2015.
25Bishop did not recall whether or not he searched Diana Concepcion, and did not recall
finding any lotion. I credit Concepcion’s more specific recollection.
26Bishop testified generally that during this clipboard audit he did not look in any clipboards
when the owner was not present. However, he testified that he had done so in past audits.
Given the more specific testimony on this issue, I do not credit Bishop’s denial.
JD–58–16
21
Machine Operator Kenneth Favors testified that his supervisor, Bob Stacy, approached
Favors and asked to check his clipboard. Stacy was referring to a clipboard sitting on a metal
stand near where Favors was working. However, Favors does not carry a clipboard and he told 5
Stacy that it was not his clipboard. He asked Stacy why he wanted to look at it. Stacy told him,
“Well, there’s people who have stuff they shouldn’t have.” This testimony was unrebutted. Prior
to this incident, Favors, who had worked at AP for more than 12 years, had never heard of
supervisors checking clipboards.27
10
Fox was at work with his clipboard beside him on a table, when his supervisor Derrick Cox
and another manager, whose name was unknown to Fox, approached him without notice and
said, “Fox, I’ve got to check your clipboard.” Cox opened the clipboard, found a red pen (which is
prohibited, only blue and black are to be used). Cox took the pen, and returned the clipboard to
Fox. He said, “Fox, you know you can’t have this on the floor.” Cox then left. There were union 15
authorization cards in the clipboard box, but Cox did not notice or find (or remark upon) them.
About five minutes later, another supervisor, Daran Bishop, approached Fox and told Fox
that he needed to check his clipboard. Fox told him that Cox had already checked it, and Fox
walked away and went back to work, leaving his clipboard on the table. Soon thereafter, another 20
machine operator (Aiden) who works with Fox told Fox that Bishop went into Fox’s clipboard and
removed union authorization cards from the clipboard box. Bishop left the area, heading away
from production. Later, Bishop approached Fox and told Fox to come to the HR office with him.
In his nine years at AP, Fox had never before been sent to HR.28
25
Fox had been subject to quality audits in the past, based on the GMPs, where managers
check the employees’ knives to make sure they match the appropriate grinder, and check
tagout/lockout devices. But this was the first time that Fox had ever seen supervisors searching
inside of clipboards for violations, and searching through the papers in the clipboard.
30
Cox and Bishop reported to Ramirez that they had found union cards in Fox’s clipboard.
They gave her the confiscated cards. Fox was called to the HR office over the PA system.
When Fox arrived at the HR office, Ramirez and Chernock were there. Bishop had
escorted Fox to the office, and then left. Fox was asked to close the door. Chernock and 35
Ramirez referenced the authorization cards and Fox was then told by Chernock that AP had “a
nonsoliciting nondistributing policy.” Fox said he understood that, but that he had not distributed
the cards. Ramirez challenged him, “So the cards would just sit in your box.” Fox said, “yes.”
Ramirez gave Fox a “verbal warning,” telling him that “if it was to happen again . . . you could
possibly be suspended or terminated.” In this meeting, neither Chernock nor Ramirez referenced 40

27USDA inspectors at the plant sometimes check toolboxes to make sure tools are clean, but
Favors testified with certainty that supervisors had not previously checked toolboxes.
28Bishop testified that Fox was present when Bishop checked his clipboard and put his arm
over it to keep it closed. Bishop did the audit anyway. I do not see the dispute between Fox’s
version of events and Bishop’s as material. I do not resolve the disparate accounts. All agree
that union authorization cards were found in Fox’s clipboard and taken to Ramirez.
JD–58–16
22
“GMPs” that regulated what items could be brought to the production floor by employees. The
meeting lasted approximately five minutes.29
Analysis
5
The General Counsel alleges that the Respondent’s clipboard search and confiscation of
union cards from the clipboards constituted unlawful surveillance of employees’ protected and
concerted activities, in violation of Section 8(a)(1). The General Counsel further alleges that the
disciplining of employee Fox, who was found to have union cards in his clipboard on the work
floor, violated Section 8(a)(3) of the Act.10
The evidence is clear that the Respondent’s (on or about) June 8 “clipboard audit” was a
search for union authorization cards. Those found were confiscated. This effort to search for the
possessors of union authorization cards is easily found to be a straightforward case of unlawful
surveillance of employees’ union activity. The search would reasonably interfere with employees’ 15
willingness to engage in concerted and protected activity. Hospital of the Good Samaritan, 315
NLRB 794, 810 (1994); Micro Metl Corp., 257 NLRB 274, 275–276 (1981).
The Respondent’s defense is that it was enforcing a neutral rule that, for safety and
sanitation reasons related to production, prohibits any nonwork or “personal” items on the 20
production floor. For purposes of my analysis only, I will assume, arguendo, that such a rule
could be consistent with the Act in this situation,30 and that there was such a rule.31

29At trial, Ramirez testified that though her sworn pretrial affidavit characterized Fox’s
discipline as a violation of the solicitation/distribution clause, in fact, it was a GMP violation, and
that her description of it as a solicitation violation was “a mistake.” However, my finding, based
on Fox’s credited testimony, and buttressed by affidavit impeachment evidence, is that in the
disciplinary meeting Ramirez told Fox he was being verbally warned for violating the
solicitation/distribution policy and that the GMPs were not mentioned. In addition, I consider
Ramirez’s pretrial statement to constitute an admission. See, F.R.E. 801(d)(2).
30I have my doubts. While I agree that an employer’s need for a clean and sterile work
environment could overcome the presumptive right to solicit union authorizations in work areas
(during nonworking time), it is clear that the “meat sheets” paperwork carried daily by employees
onto the shop floor and stored in the clipboards carry no more assurance of cleanliness or
sterility, or any other feature of safe practice, than union authorization cards. In this regard, it is
to be remembered that the Act provides an affirmative right to engage in union activity. A
content-neutral ban on personal items is presumptively invalid to the extent it covers (or is
reasonably understood to cover) union materials.
31I note that the assumption is for purposes of argument only. In fact, it is unwarranted. For
instance, Fox testified that he has never been told that he could not keep personal papers in his
clipboard, and he regularly keeps check stubs in his clipboard. I think his colloquy with counsel
on cross examination (Tr. 166–167) vividly demonstrated his sincere and justifiable uncertainty
about the scope and exactingness of the rules on what could and could not be brought onto the
production floor. Moreover, his acknowledgement that “now”—after being disciplined—he
understands that having authorization cards in his clipboard violated the company’s rules, but
“then” he did not know it, is not exactly bolstering to the Respondent’s position. But even more to
the point, the rule that Supervisor Bishop testified governed the items employees could have in
their possession on the production floor—GMP Rule 6.5—does not, by any stretch, prohibit
personal papers from the production floor. See Rule 6.5, set out above.
JD–58–16
23
Even granting these (undue) assumptions, in this case the violation is apparent based on
the credited testimony. The search, admittedly triggered by reports that union authorization cards
were being solicited on the floor, was unprecedented and directed toward finding and confiscating
union authorization cards. Fox, in particular, was a suspect, his clipboard was searched twice.
According to the consistent and credited employee testimony, there had never been such 5
clipboard searches in the past, for any other contraband, with supervisors delving into clipboards
even in the absence of the employee who maintained the clipboard. Second, during this search
alleged “contraband” that was found and unrelated to union activity was ignored or did not
provoke discipline. (Fox’s red pen, and rust on clipboard; Concepcion’s pay stubs and hand
lotion.) Moreover, notwithstanding the Respondent’s efforts at trial to link the whole matter to 10
GMPs, the issue on June 8, as explained to Fox, was Fox’s violation of the Respondent’s
(unlawfully overbroad) solicitation/distribution policy. GMPs, sanitation and not having personal
items on the floor—i.e., the entirety of the Respondent’s defense here—went unmentioned in the
disciplinary meeting.32
15
Thus, the clipboard search was not a neutral application of safety and sanitation rules, but
an unlawful search to uncover who was in possession of union authorization cards.
When the union cards were found in Fox’s possession, Fox was disciplined. No one else
was disciplined for possession of any other allegedly “unauthorized” items. As the facts show, 20
Fox was disciplined for the protected activity of possessing union cards, not for violating GMPs
and, not even—really—for violating the unlawful distribution/solicitation policy. Fox’s protest to
Ramirez that he had not been distributing or soliciting, but merely in possession of the cards,
went unheeded. As with Cotto and Guzman’s discipline, described above, and which occurred
the next day, the Respondent represented to Fox that it was enforcing the solicitation policy25
against him. This was an unlawful enforcement of an overbroad rule, and a violation of Section
8(a)(1). But it was also a pretext for the Respondent’s real motive—the discriminatory disciplining
of Fox for possessing union authorization cards. Thus, the evidence shows that the clipboard
search, Fox’s discipline, and the Cotto/Guzman incident, were efforts to stamp out union activity
in the facility and create a climate in which employees risked discipline for involvement in union 30
activity inside the building.33

In terms of Wright Line, Fox engaged in protected and concerted activity and was
discovered to have done so by the Respondent, when it found the authorization cards in his
possession. The Respondent’s animus is not in doubt. The Respondent has not shown, in any 35
way, much less carried its burden, of demonstrating that Fox would have been disciplined in the
absence of his protected union activity. Wright Line. Fox’s discipline, then, was a clear violation
of Section 8(a)(3).34

32Moreover, as noted by the General Counsel (GC Br. at 30–31), Fox received a verbal
warning, which, under the Respondent’s progressive discipline system (GC Exh. 17) is an initial
penalty for a violation of the unauthorized solicitation/distribution rules. He did not receive a
written reprimand, which is the initial penalty for failure to follow GMPs.
33Notably, for two of the three employees (Fox, Guzman, and Cotto) who were allegedly
disciplined for violating the solicitation/distribution policy, AP had no evidence that they had
solicited or distributed anything at all. It was their union activity that provoked the discipline.
34In addition, as with Cotto and Guzman, AP’s assertion to Fox that he was being disciplined
for violating the 2001 solicitation/distribution policy constitutes unlawful enforcement of an overly
broad solicitation/distribution policy in violation of Section 8(a)(1), without regard to motive.
JD–58–16
24
IV. Internet surveillance; the demand for documentation
of identity; the suspension of Diana Concepcion
(complaint paragraphs 5(g), (h), and (i), and 6(d))
Facts5
Diana Concepcion is a line coordinator at AP. She has worked at the facility since
October 2008. The record demonstrates that she was an early, active and open supporter of the
union campaign.35 On Sunday June 14, 2015, Concepcion, along with Sonja Guzman, spoke
about the union campaign on a show on a local Spanish-language radio station. The union 10
conducts the radio show monthly about the AP union campaign.
Early Tuesday morning June 16 (at 2:31 am), production supervisor Don Lewis emailed
Ramirez providing the following information related to the union campaign:
15
Hi,
A second shift QA auditor who has sometimes given me union updates said that
there is a Spanish language radio station that broadcasted a question and answer
session about the union activity at our plant. The station is 97.7 La Mega. She said 20
that it was Son[j]a Guzman and another lady named Diana being interviewed by
the DJ and maybe a union representative. She didn't get all of the interview but
thought that it may be available on the station's website.
Lewis’ note triggered a swift reaction among management that morning. Although it is 25
unclear from the record how he received it, at 8:01 am Aardema sent a note to Lewis, copied to
Ramirez, Ernie Hayes, Sterwerf, Stanford and AP’s retained union consultant Hawkins, thanking

35See, e.g., Tr. 206–209 (Concepcion passed out flyers in front of facility on June 1 while
supervisors watched from the facility hallway); Tr. 264–265 (Concepcion handed out flyers in
plain view and was observed by management including Ramirez). I note that on brief while the
Respondent vigorously defends the allegations relating to Concepcion on a number of grounds, it
does not claim that it was unaware that Concepcion was a supporter of the Union at the time of
the events involving her. However, during the hearing, Ramirez denied knowing before June 16
that Concepcion was a union supporter. I do not believe and I discredit that. In addition to the
above cited evidence, and in addition to the fact that the Respondent received reports on union
activities, including reports of union meetings from employees and supervisors, I note, as
discussed further below, that Ramirez described Concepcion as “a union supporter” in a June 16
email to Aardema identifying Concepcion to Aardema. Ramirez wrote:
“[She is] Diana Concepcion. She is on 1st shift here at AP and is a union
supporter.”
This email was sent minutes after she learned that an employee named “Diana” had appeared on
a pro-union Spanish speaking radio show (there were only two Spanish-speaking Dianas in the
facility), and minutes after finding a Facebook posting “liking” the show from a Facebook posting
with what she believed to be Concepcion’s picture. The casual use of the word “union supporter”
to identify and describe Concepcion to Aardema belies the claim that Concepcion’s union support
was brand new information for Ramirez. Concepcion’s union support was no more new news to
Ramirez than was the fact that she worked on first shift.
JD–58–16
25
Lewis and mentioning that he was “sharing this with John [Hawkins] so we can discuss this
morning.”
Ramirez is scheduled to arrive at work by 8 a.m. She plunged into follow up on Lewis’
email as soon as she arrived at work. She went to La Mega radio’s Internet site to see if she 5
could listen to the union radio show. She didn’t find it, but did click to a link that brought up the
radio station’s Facebook page. On that page, Ramirez saw a posting by the radio station, dated
June 14, at 4:50 pm, that said, “basically” in Spanish “Up next, the hour for the workers talking
about the campaign at Pierre Foods with Local 75.” Ramirez printed a screen shot of this page
“moments after” clicking on it. The screen shot (R. Ex. 5) indicates it is 8:16 am. The post about 10
the Advance Pierre campaign had one Facebook “like” under it, from Yazzmin Trujillo. She
clicked on the link for Yazzmin Trujillo, which brought her to Trujillo’s Facebook page.
The cover photo on Trujillo’s Facebook page36 was of a smiling child and the profile
backdrop appeared to be a child’s drawing. That same drawing appears as the latest post, dated 15
June 8, with a note, in Spanish, that translates approximately as “”My son supposedly drew a
picture of me.” Ramirez then searched through the photos tab on Trujillo’s Facebook page.
Ramirez testified that she did this “[b]cause I was curious to see who Yazzmin Trujillo was and I
didn’t recognize the name, so I was just curious.”
20
This brought up a photograph (R. Exh. 5(b)) that Ramirez believed to be of AP employee
Diana Concepcion. According to Ramirez, her reaction “at this point” was “why is Diana
Concepcion’s picture on this page with the name Yazzmin Trujillo[?]” She then proceeded to look
through—scour, I think it is fair to say—Trujillo’s Facebook page, searching “Friends,” reading
comments, and generally looking through the profile. She even looked at the Facebook pages 25
and photos of two of Trujillo’s friends who shared the last name Trujillo. Ramirez spent a
significant amount of time that morning performing this search, returning to it again the “the
following day because I was trying to just see how if there were friends on there that shared the
last name Concepcion or if there were only friends with the name Trujillo.” Ramirez took several
screenshots of what she found. She also “pulled” Concepcion’s benefit file and reviewed it: “I 30
want to see if she had listed herself as married, and maybe that would explain to me why her last
name or the name Trujillo would be the name of the friends” on this Facebook page. Concepcion
was listed as single in her benefits file. However, her file listed as her beneficiary an individual
with the last name Trujillo.
35
Based on the foregoing Ramirez testified that “I felt that there was a strong possibility that
she may not be who she presented herself to be.”37

36With a reported 1.59 billion monthly active users worldwide and over 150 million members in
the U.S., I am going to assume the reader’s familiarity with the Facebook-based terms used in
this decision. (https://en.wikipedia.org/wiki/Facebook)
37According to the Respondent’s brief (R. Br. at 34–35), the sum basis for Ramirez’s belief
was that it
was obvious to Ramirez [ ] that Concepcion posted pictures of herself on
Facebook under the name Yazzmin Trujillo, that Concepcion referred to other
Trujillos on Facebook as her “papi” (“dad”), “hermanito” ("brother") and "Tia"
("aunt"), and that Concepcion's benefit file indicated that her beneficiary is a
Trujillo, who also happens to live with her. (Tr. 795:11–15; 796:5–8; 797:16–21;
798:20–25; 799:10–25). These circumstances created a reasonable suspicion in
Ramirez's mind that Concepcion was very likely Yazzmin Trujillo.
JD–58–16
26
While this conclusion was based on a review that continued into the following day,
Ramirez did not wait to bring these matters to the attention of upper management. We know from
the screenshot that by 8:16 a.m. Ramirez was on Trujillo’s Facebook page. In other words,
minutes after arriving at work, she received Lewis’ email, went to the radio station’s internet page, 5
and entered Trujillo’s Facebook page.
Two minutes later, at 8:18 am, Ramirez wrote to Aardema, asking: “Are we meeting this
morning? I have some news to share.” At 11:21 a.m., Aardema responded telling Ramirez, “we
don’t have a call this morning . . . could you let me know the information you wanted to share?” 10
She responded to Aardema at 11:36:
This morning I went to La Mega's website to see if they had any archives, so I
could hear what the interview was about. I didn't find any archives on their
website, so I went to their facebook page and found a message from 4:50pm on15
Sunday that they were about to talk about the union campaign at Pierre Foods.
On that post their was 1 "like[,]"[ ] so I clicked on the name (Yazzmin Trujillo) and
the picture shows who I know as Diana Concepcion. She is on 1st shift here at AP
and is a union supporter.[38]
20
I am concerned that she may have provided false documents when she began her
employment with us. Thanks.
A few minutes later, at 11:42 a.m., Aardema responded, stating:
25
Thanks for letting me know and I understand the concern. Do we have any history
with this type of situation? While she may be a supporter of the union campaign,
we need to be sure that we're approaching this regardless of her views in that
regard and in the same manner as we would otherwise. Thanks and let me know.
Ramirez responded at 11:56 a.m.:30
We had the same type of situation come up a couple of years ago. In those cases
we called the employee in to HR, expressed our concern, then gave the employee
a few days to bring us additional documentation to show us that they are the
person they were hired as. I recall two cases and I believe we ended up terming 35
both because they could not provide the documentation. Thanks.
___________________________
38Ramirez suggested in her testimony that this reference to Concepcion as a union supporter
was based solely on the fact that her Facebook sleuthing had led her to believe that the person
who “liked” the union radio program was Diana Concepcion and that, therefore, this must be the
Diana identified by Lewis as the AP employee on the radio show. I do not believe that. As noted,
above, I discredit the suggestion that this was the first Ramirez learned or came to believe that
Concepcion was a union supporter. Indeed, given Ramirez’s professed in-depth knowledge of
the AP workforce, given that there were only two Spanish-speaking Dianas in that workforce,
given the record evidence of Concepcion’s open union support including her past leafleting in
view of management, and specifically, in front of Ramirez, I conclude that when Ramirez read
Lewis’ email she knew then it was more likely than not that the Diana speaking for the Union on
the Spanish-language radio show was Diana Concepcion.
JD–58–16
27
Ramirez’ reference to “the same type of situation” arising in recent years was to two
employees, in late 2012 and early 2013, as to whom a Facebook page with a name different than
the photo of the employees was found. The circumstances surrounding how Ramirez came to
find this information on the two employees is not part of the record. Ramirez demanded
additional documentation of their identity, documentation different than the employees had 5
provided when hired. When they did not provide it, they were terminated for “falsification.”
However, one of the employees subsequently provided additional documentation and was
rehired, and continues to work for AP.
Based on the Facebook investigation, Ramirez, in consultation with Aardema, decided to 10
require additional evidence of identification from Concepcion.
The next day, on June 17, Ramirez conducted a meeting with Diana Concepcion. This
meeting was also attended by then Plant Manager Ernie Hayes. At this meeting, Ramirez asked
Concepcion if she had gone to the radio show and Concepcion told them yes. Ramirez told 15
Concepcion that she had been looking on the Internet to see if she could find the radio station
broadcast, and “I located a Facebook page and walked her through the entire events of how I
found this Facebook page for Yazzmin Trujillo.” Ramirez told Concepcion there were concerns
about her identity. Concepcion told Ramirez that she did not know what Ramirez was talking
about and that she did not have a Facebook page. Ramirez told Concepcion that they were 20
going to investigate and would let Concepcion know what was going to happen.
After the meeting, Ramirez called Concepcion back about five minutes later and told
Concepcion that “we were going to need to request documents from her to prove her identity.”
Ramirez and Hayes then provided Concepcion with a memo, dated June 19, that Ramirez 25
received pre-written from Aardema. The memo was directed to Diana Concepcion from Ramirez,
with the subject line “Request – Additional Verification of Identity.” The memo stated:
AdvancePierre Foods is committed to having a lawful workforce, and federal law
prohibits us from employing individuals that we know are unauthorized. AP also30
has a policy under which it may terminate the employment of employees who
provide false information or documentation to the Company - whether the
falsification is discovered at the time it is made or later.
When a situation comes to our attention resulting in a reasonable concern35
suggesting an individual may not be who he/she claimed to be for employment
purposes, it is AP's practice to request additional evidence to prove that the
documentation provided at the time the I-9 was completed was valid. In line with
this policy, and how prior similar situations have been handled, we asked you
during our meeting on June 17th to provide us with additional evidence that the I-40
9 documents provided at the time of your employment were indeed valid and
support that you are Diana Concepcion. This evidence cannot be the same type
of evidence you previously provided for your I-9 (State ID card /Driver's License
or Social Security Card). Instead, it should be other official documentation that
supports that you are Diana Concepcion, such as an unexpired passport, birth45
certificate, military ID, etc. (see attached example list of acceptable documents).
Please provide this additional information to me by June 29, 2015. We will
review that information and let you know if there are still any questions.
Thanks for your help in providing this information.50
JD–58–16
28
A second page provided to Concepcion at the meeting contained a list of acceptable
documents to prove identity. (This page was created by the Federal government for employer and
employees’ use in completing Form I-9 identification and employment authorization
requirements). Ramirez gave Concepcion eight business days to provide the information, a
matter that had been decided upon by Aardema who kept in close contact with Ramirez on this 5
situation. The meeting ended.
A couple of hours later Concepcion returned to Ramirez’s office accompanied by co-
workers Vianey Guzman and Carmen Cotto. Ramirez brought Ernie Hayes in as a witness. With
mostly Ramirez, Cotto, and Concepcion speaking, they discussed the Facebook issue. Cotto and 10
Guzman said that many people have Facebook pages with names different than their own, and
Guzman used herself as an example saying she used her single name for employment but her
married name on Facebook. The employees told Ramirez it was illegal to re-“E-Verify” an
employee. Ramirez said she was not re-“E-Verifying” Concepcion, but rather “confirming that the
person who was sitting in front of me was Diana Concepcion.”3915
Concepcion provided the following letter to Chernock and Ramirez, dated June 26, 2015:
My employer, AdvancePierre Foods, has instructed me to provide additional
documents, other than the ones I provided when I was; hired, to show that my20
original I-9 documents were valid. I believe that this request is illegal,
discriminatory, and retaliatory.
Under the rules for E- Verify, companies may not verify or re-verify current
employees. The Company has no legitimate reason and has provided no proof for 25
why it feels it needs additional documentation from me. In addition, companies are
not allowed to specify which documents an employee may use for verification. By
telling me that I cannot provide certain documents, Pierre is acting unlawfully.
Companies may also not target groups of employees based on such
characteristics as national origin or union activity. I believe that the request by 30
Pierre is discriminatory and nothing more than an attempt to bully and intimidate
me and my co-workers so that we will not exercise our right to form a union.
In order to avoid being disciplined or terminated for insubordination, however, I am
providing a birth certificate, under protest. I trust this will end the inquiry and no35
further action will be taken against me.
Attached to this, and also provided to Ramirez, was a Puerto Rican birth certificate for
Diana Concepcion. However, the birth certificate indicated that it had been issued December 17,
2003. Ramirez told Concepcion that she could not accept a Puerto Rican birth certificate issued 40
prior to July 1, 2010.
Ramirez offered to give Concepcion more time to obtain a valid birth certificate, telling her
that “if she chose to pursue acquiring a new birth certificate from Puerto Rico that the company

39E-Verify is a Federal government internet-based program that compares the Form I-9
information submitted by new employees with data in U.S. government records. I note that
Ramirez denied that she or AP was using the E-Verify system to check Concepcion’s
documentation or identity. Ramirez testified that she agreed that E-Verify was not to be used with
regard to incumbent or current employees.
JD–58–16
29
would help pay for expedited shipping, and that if she needed time off work in order to obtain it,
that we would give her that time, and that it would be paid, or that she could return to work, either
which she chose.” Concepcion told Ramirez she would obtain the birth certificate but that she
was relying on the Union’s help, and that she would return to work the next day. The next day,
June 30, Ramirez met with Concepcion and provided a letter to Concepcion (in Spanish and 5
English), from Chernock, and dated June 30, 2015, stating:
On June 29, 2015, you provided a copy of a birth certificate from Puerto Rico in
response to our request to provide additional confirmation of your identity.
Unfortunately, on July 10, 2010, Puerto Rico declared that all birth certificates 10
issued prior to that date would be invalid since they had been used in the past to
illegally obtain U.S. passports, Social Security benefits, and other federal services.
The Certificate you provided is dated December 17, 2003, and is
therefore invalid.
15
In our conversation on June 29th with Mandy Ramirez, you indicated that you do
not have another acceptable form of identification. You also indicated your
intention to pursue a valid birth certificate from Puerto. Rico. I want to provide you
with a website that can be used for that purpose, which will take between 8-12
days to receive an updated certificate. That site is:20
https://serviciosenlinea.gobierno.pr/Salud/Servicios.aspx?goto=nacimiento. If you
decide to use this website, please use the Express Service shipping which will
speed up the process. The Company will gladly reimburse you the cost of that
service if you use this specific site. If you choose to pursue a certificate through
another source, please know that such certificate must be valid and received 25
through a reliable source.
I do want to clarify a few points of concern that were raised in your letter of Jun 26,
2015. Please be assured that we are not verifying or re-verifying your identity
through E- Verify. We also informed you when we first met on this topic regarding 30
the reasons why there was a reasonable concern regarding your identity. And,
contrary to what you may have been told, there is a very specific list of acceptable
documents (attached again for your reference) that establish identity or
employment authorization on the federal government's I-9 form as required by law.
More information can be found on these requirements online on this site:35
http:/ /www.uscis.gov./i-9-central/acceptable-documents
As mentioned when we spoke, you will be paid for your work time on June 29th
and there will be no discipline imposed for that day. We also provided you the
option to return to work while you're pursuing your birth certificate, or to be on paid
leave to provide you additional time to do so. You elected to return to work on 40
June 30, 2015 and work during this period.
In order to provide at least 12 business days for you to receive a valid birth
certificate from Puerto Rico, please provide that documentation to us no later than
Friday, July 17, 2015. Again, you may continue to work during this time.45
Please let me know if you have any questions.
As referenced above, AP supervisors and management passed along to upper
management information it learned about the union campaign. By email dated the afternoon of 50
JD–58–16
30
June 30, Ernie Hayes sent a note to Aardema, copying Chernock, Ramirez, and Sterwerf,
indicating that
I heard from a supervisor that the situation with Diana Concepcion may have
sparked the union cord again. He heard from one of his sources that the union 5
talk was dying down until this situation with Diana came about. In his sources
words (who is not a union supporter) “Why don’t they just leave these people alone
and quit F-ing with them. Now this union stuff is starting again.”
Approximately 20 employees signed a petition calling on AP to cease requesting re-10
verification of Concepcion and accusing AP of frightening her and intimidating employees from
creating a union. The petition made a number of demands regarding ceasing the re-verification of
Concepcion and other workplace demands. The petition stated that “We are prepared to take
collective action if our demands are not met by July 16, 2015.” In addition, a rally was held in the
parking lot on July 16 by employees, at which time Concepcion delivered a letter to Ramirez that 15
contended that AP’s request for documentation was unlawful and unwarranted. Notwithstanding
this, the letter stated:
In order to avoid being disciplined or terminated, however, I am attempting to
comply with the Company’s request and obtain the documentation it has requested 20
but have not been able to do so yet. I am requesting at least an additional 90 days
to obtain the information. Please let me know.
AP did not give Concepcion additional time. On July 17, the deadline set by AP,
Concepcion called off work, leaving a voicemail that she was on strike for the day. (As discussed 25
below, a number of employees called off as part of a one-day strike that day.)
Ramirez called Concepcion and after a few calls, reached her that day. Ramirez asked
Concepcion “if she was . . . able to give us the document. She said she did not have it.” Ramirez
told Concepcion that “we are going to move towards suspension. Ramirez provided a July 17 30
letter to Concepcion that set forth the previous requests and deadlines for the additional
documentation, the rejection of the Puerto Rican birth certificate, and the July 17 deadline. The
letter then stated,
We have consistently communicated to you that your December 17, 2003 Puerto 35
Rican birth certificate is not a valid document for purposes of confirming your
identity, and that you are obligated to provide us with some form of valid
documentation to remain employed with the Company. We provided you the time
and resources to take care of this issue by today.
40
As of today, you have not provided us any documentation to confirm your identity,
or even any information to suggest that you have attempted to begin the process
of obtaining a new birth certificate. Accordingly, you have not fulfilled your
obligation to provide the requested proof of your identity. For this reason, you are
being suspended indefinitely without pay while the Company reviews this matter 45
further. Your badge has been deactivated, and you are not authorized to be on
Company property effective immediately.
We will make a final determination on the status of your employment at some point
in the near future. If you do obtain and provide proper documentation to validate 50
JD–58–16
31
your identity before a final decision on your employment status is made, the
Company will appropriately consider such documentation if you supply it to us.
As of the time of the hearing in this matter, Concepcion remained suspended.
5
Analysis
a. Surveillance
The General Counsel alleges that Ramirez’s Facebook searches in conjunction with the 10
union radio show constituted unlawful surveillance in violation of Section 8(a)(1) of the Act.
Unlawful surveillance occurs when an employer’s agent takes intentional action to
observe or learn of employee union activity. Astro Shapes, Inc., 317 NLRB 1132, 1133 (1995)
(unlawful surveillance for supervisor to park in tavern parking lot where union meeting was 15
scheduled because he was curious how many employees would show up); Dadco Fashions, 243
NLRB 1193, 1198-1199 (1979) (unlawful surveillance for supervisor purposely to drive by union’s
roadside park highway meeting “because she was curious”), enfd. 632 F.2d 493 (5th Cir. 1980).
See in contrast, Milum Textile Services, 357 NLRB 2047, 2072 (2011) (no unlawful surveillance
where supervisor “in the course of her normal routine” regularly ate lunch parked on street next to20
the facility where she observed employees engaging in prounion activities) and Valmont
Industries, 328 NLRB 309, 318 (1999) (no violation where supervisor’s presence at motel while
union meeting was being conducted there was coincidental and unrelated to union meeting).
In this case, prompted by a supervisor’s report that Sonja Guzman “and another lady 25
named Diana” had appeared on a radio show devoted to “union activity at our plant,” Ramirez
seemingly dropped everything upon arriving at work the morning of June 16, to investigate this
matter. She searched (unsuccessfully) for the archived union radio show and then went further
and investigated who the person was who “liked” (i.e., supported) the union radio show. When
Ramirez did this, she was searching for information on union supporters and activities. In this 30
regard she intensively searched the Facebook page, photos, and friends of the union supporter
identified as Yazzmin Trujillo, and determined that, in her view, Trujillo was “1st shift” “union
supporter” Diana Concepcion.40
Although carried out with a more modern methods, this is no different than the “curious” 35
supervisor who, upon hearing that there would be union activity at a roadside park or a local
tavern, takes a ride over there to see what he or she could see. Dadco Fashions, 243 NLRB at
1198-1199; Astro Shapes, Inc., 317 NLRB at 1133.
The Respondent argues that Ramirez merely consumed publicly available media, but that 40
is beside the point. Just as it is not necessary for a supervisor to sneak into a private union
meeting in order to unlawfully surveil employees, it was not necessary for Ramirez to enter
unauthorized or break through password-protected websites in order to be engaged in unlawful
surveillance. Rather, as with supervisors who unlawfully surveil by intentionally seeking out
protected and concerted activity in the physical world to view, Ramirez violated the Act by 45

40Ramirez testified that she investigated Trujillo’s Facebook page because she “was curious
to see who Yazzmin Trujillo was.” But she was curious precisely because this individual had
expressed support (a “like”) for a union-themed radio show about the AP plant and union drive.
She wanted to know more about the union supporters.
JD–58–16
32
seeking out information on the internet about the employees’ union activity on the radio and then
by investigating who liked it.
The Respondent also argues that Ramirez’ “curiosity” is immune from sanction because
she did not recognize the name Yazzmin Trujillo as an employee. This is a meritless argument.
Indeed, the contention (R. Br. at 33) that “Ramirez’s intent was to determine who Trujillo was and
why a non-employee would be interacted in AP”—and not to determine if Trujillo supported the
Union—strikes me as sophistry. Ramirez knew Trujillo supported the Union and its efforts at
AP—that is precisely why she investigated Trujillo. She was looking for information about Trujillo
and her connection to the union and other union supporters. In any event, Ramirez quickly
formed the belief that she was viewing an employee’s Facebook page, one she did not stumble
upon but, rather, arrived at during an investigation of a person expressing support for the union
radio show that was about the union drive at AP. This did not deter her search. She pressed on.
I note that if a supervisor heads to a union meeting to investigate who is there, it is hardly lawful
surveillance until the moment she spies an employee she knows. And the subsequent
surveillance is not immune from condemnation once the supervisor spies someone she believes
to be an employee. Ramirez’s entire investigation—and particularly—her admitted effort to glean
information about Trujillo and her connection to the AP workforce, constituted unlawful
surveillance.41
Finally I note that any doubt about the reasonable likelihood of the surveillance to coerce
employees is removed by the Respondent’s disclosure to Concepcion of the surveillance in which
Ramirez engaged. While “it has long been held that surveillance may be unlawful regardless of
whether the employees knew of it” (National Steel and Shipbuilding Co., 324 NLRB 499, 504 fn.
20 (1997) (citing, NLRB v. Grower-Shipper Vegetable Ass’n, 122 F.2d 368, 376 (9th Cir. 1941)
and Bethlehem Steel Co., 120 F.2d 641, 647 (D.C. Cir. 1941)); Starbrite Furniture Corp., 226
NLRB 507, 510 (1976)), in this case Concepcion was told by the Respondent that it was the
surveillance of the union radio show and the person who “liked” it that resulted in the further
adverse action against her. The knowledge that the Employer engaged in this surveillance
would, at a minimum, be reasonably likely to interfere with employee willingness to participate in
union activities and express support for the union.
b. The demand for documentation of identity 5
and the suspension of Diana Concepcion
Having found that Ramirez’s investigation into the La Mega radio show and its Facebook
supporter constituted unlawful surveillance, I now turn to the different issue of whether the
Respondent’s demands of Concepcion for further identification, and her suspension when she 10
failed to provide it, constitute unlawful action.

41The cases cited by the Respondent, which involve an employer’s viewing of union activity
openly conducted on its own property and observed incidental to normal operations or “legitimate
proprietary prerogative[s],” are flatly inapposite to the circumstances presented here. See, e.g.,
Chemtronics, Inc., 236 NLRB 178, 178 (1978) (no surveillance violation where employer (lawfully)
interrupted meeting conducted on his parking lot to tell union officials to leave premises);
Hoschton Garment Co., 279 NLRB 565, 566–567 (1986) (no surveillance violation where
employer attempted to eject trespassing union representatives from its property); Harry M.
Stevens Services, 277 NLRB 276 (1985) (no unlawful surveillance where the employer’s
“standard manner of supervising its employees” working concessions at Houston Astrodome
involved “mov[ing] throughout facility” and incidental to this a supervisor witnessed a card
solicitation).
JD–58–16
33
The General Counsel argues (GC Br. at 36) that the demand for documentation and the
suspension were unlawfully motivated retaliation for Concepcion’s union activity. As discussed
above, the Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 5
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management Corp., 462
U.S. 393, 395, (1983) (approving Wright Line analysis).
While I have applied Wright Line earlier in this decision, a more extended treatment of its
rationale and operation are useful in analyzing these alleged violations. 10
The Wright Line test, while applicable to pretext cases in which the employer has no
legitimate motive for the action taken against an employee, was chiefly adopted as a mode of
analysis in the “dual motive situation where the legitimate interests of the parties most plainly
conflict.” Id. at 1083: 15
In such cases, the discipline decision involves two factors. The first is a legitimate
business reason. The second reason, however, is not a legitimate business
reason but is instead the employer’s reaction to its employees’ engaging in union
or other protected activities. This latter motive, of course, runs afoul of Section 20
8(a)(3) of the Act. [Id.].
In Wright Line, the Board adopted a mode of analysis for examining causality in dual
motive cases under the Act based on the analysis used by the Supreme Court in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274 (1977). In Mt. Healthy—a non-NLRA 25
case—the Supreme Court considered a public school district’s refusal to renew a teacher’s
contract. There were two reasons: one, a legitimate reason, involving the teacher’s use of
obscenity in the school cafeteria, but also, a second, illegitimate reason, involving constitutionally-
protected conduct when the teacher conveyed school information to a local radio station. The
lower court reasoned that since protected activity played a substantial part in the school board’s 30
decision, its refusal to renew the contract was unlawful. The Supreme Court reversed, ruling that
“the school board must be given an opportunity to establish that its decision not to renew would
have been the same if the protected activity had not occurred.” Wright Line, supra at 1086. The
Supreme Court in Mt. Healthy, 429 U.S. at 285–286, reasoned that:
35
A rule of causation which focuses solely on whether protected conduct played a
part, "substantial" or otherwise, in a decision not to rehire, could place an
employee in a better position as a result of the exercise of constitutionally
protected conduct than he would have occupied had he done nothing. The
difficulty with the rule enunciated by the District Court is that it would require 40
reinstatement in cases where a dramatic and perhaps abrasive incident is
inevitably on the minds of those responsible for the decision to rehire, and does
indeed play a part in that decision—even if the same decision would have been
reached had the incident not occurred. The constitutional principle at stake is
sufficiently vindicated if such an employee is placed in no worse a position than if 45
he had not engaged in the conduct.
With this background, the Board in Wright Line determined that in dual motive cases
under the Act, the General Counsel carries his initial burden by persuading by a preponderance
of the evidence that employee protected conduct was a motivating factor (in whole or in part) for 50
the employer’s adverse employment action. Wright Line, supra at 1089. Under the Wright Line
JD–58–16
34
framework, as subsequently developed by the Board, the elements required in order for the
General Counsel to satisfy its burden to show that an employee’s protected activity was a
motivating factor in an employer’s adverse action, “are union or protected concerted activity,
employer knowledge of that activity, and union animus on the part of the employer.” Adams &
Associates, Inc., 363 NLRB No. 193, slip op. at 6 (2016); Libertyville Toyota, 360 NLRB No. 141, 5
slip op. at 4 (2014); enfd. 801 F.3d 767 (7th Cir. 2015).
Such showing proves a violation of the Act subject to the following affirmative defense: the
employer, even if it fails to meet or neutralize the General Counsel's showing, can avoid the
finding that it violated the Act by “demonstrat[ing] that the same action would have taken place in 10
the absence of the protected conduct.” Wright Line, supra at 1089. As developed by the Board,
for the employer to meet its Wright Line burden, it is not sufficient for the employer simply to
produce a legitimate basis for the adverse employment action or to show that the legitimate
reason factored into its decision. T. Steele Construction, Inc., 348 NLRB 1173, 1184 (2006).
Rather, it “must persuade that the action would have taken place absent protected conduct by a 15
preponderance of the evidence.” Weldun Int’l, 321 NLRB 733 (1996) (internal quotations
omitted), enfd. in relevant part 165 F.3d 28 (6th Cir. 1998). See NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983) (approving Wright Line and rejecting employer's claim
that its burden in making out an affirmative defense is met by demonstration of a legitimate basis
for the adverse employment action). 20
If the employer fails to prove that the same action would have taken place in the absence
of protected activity, then the General Counsel’s initial showing that unlawful motive was a part of
the reason for the adverse action proves the violation. In such cases, the Board will not weigh
the relative quantity or force of the unlawful motive compared to the lawful motive: the violation is 25
established if the employer fails to prove it would have taken the action in the absence of
protected activity.42
Applying Wright Line to the issues at hand, AP’s demand for documentation from and
suspension of Concepcion, the General Counsel’s prima facie case is easily met. Concepcion 30
was an early, active, and open supporter of the union campaign, to the extent of appearing on the
radio show that prompted Ramirez’s surveillance. As I have found, the Respondent was aware
that Concepcion was a union supporter. And in terms of Wright Line analysis, one must include
in that the Respondent’s suspicion—whether correct or not—that Diana Concepcion (and not
Yazzmin Trujillo—had “liked” the La Mega Facebook posting about the union radio broadcast.4335

42As the Board explained in Wright Line:
in those instances where, after all the evidence has been submitted, the employer
has been unable to carry its burden, we will not seek to quantitatively analyze the
effect of the unlawful cause once it has been found. It is enough that the
employees' protected activities are causally related to the employer action which is
the basis of the complaint. Whether that "cause" was the straw that broke the
camel's back or a bullet between the eyes, if it were enough to determine events, it
is enough to come within the proscription of the Act.
Wright Line, supra at 1089 fn. 14.
43It is well settled that adverse action motivated by a mistaken belief that an employee
engaged in union and/or protected concerted activity is violative of Section 8(a)(1) and/or (3) of
the Act. Salisbury Hotel, 283 NLRB 685, 686 (1987); Metropolitan Orthopedic Associates, 237
NLRB 427, 429 (1978).
JD–58–16
35
Finally, the element of union animus on the part of the employer is established not only by
the unlawful surveillance, but by the maintenance and enforcement of the unlawful solicitation/
distribution policy, the interrogation of Cotto, the disciplining of her and Guzman, as well as Fox,
and the unlawful clipboard search. 5
I note that in evaluating the element of union animus, the Board holds that it is
unnecessary for the General Counsel to make a “showing of a particularized motivating animus
towards the employee’s own protected activity or to further demonstrate some additional,
undefined ‘nexus’ between the employee’s protected activity and the adverse action.” Libertyville 10
Toyota, 360 NLRB No. 141, slip op. at 4, fn. 10; Adams & Associates, Inc., 363 NLRB No. 193,
slip op. at 6 (“we emphasize that such a showing is not required”). However, in this case, it is
worth pointing out that each indicia of the Respondent’s demonstrated animus is part of an overall
response to information it received (or solicited) about the union drive. And specifically with
regard to the investigation of Concepcion, this antiunion vigilance accounts for the ardor with 15
which Ramirez plunged into the investigation of the union radio broadcast and then into the
investigation of Yazzmin Trujillo’s Facebook. By 8:18 a.m., just a few minutes after arriving at
work, she wrote Aardema, “I have news to share.” There is an enthusiasm that is hard to miss in
her report to Aardema explaining how she got to Trujillo’s Facebook page, and that “the picture
shows who I know as Diana Concepcion,” who “is on 1st shift here at AP and is a union 20
supporter.”
Thus, under Wright Line, the General Counsel has demonstrated that antiunion animus
was a motivating factor in Concepcion’s suspension and the demand for documentation, and he
has proven a violation of the Act, subject to the Respondent’s defense. The Respondent can 25
avoid a finding that it violated the Act by (and only by) demonstrating by a preponderance of the
evidence that the same action would have taken place even in the absence of the protected
conduct. Boothwyn Fire Co. No. 1, 363 NLRB No. 191, slip op. at 7 (2016); Willamette Industries,
341 NLRB 560, 563 (2004); Wright Line, supra.
30
The Respondent contends just that. The Respondent maintains that when it found the
Facebook page, it took action to require identification and then to suspend Concepcion when she
did not provide it, and that it would have taken these actions even in the absence of her union
activity. But undeniably, Concepcion’s “misconduct” warranting suspension was the failure to
provide the requested documentation, a requirement that itself was the result of Ramirez’s 35
unlawful surveillance.
The problem with the Respondent’s defense is that in the circumstances presented here,
Wright Line undercuts the defense before it begins. Thus, the unavoidable difficulty with the
Respondent’s argument is that in the absence of its unlawful surveillance, by its own account it 40
would not have taken any actions against Concepcion. Wright Line is very clear that once, as
here, the General Counsel has proven that animus was a motivating factor in the adverse action,
to avoid liability, the employer must “demonstrate that the same action would have taken place in
the absence of the protected conduct.” Wright Line, supra at 1089. In this case the
Respondent’s unlawful surveillance precludes such a showing. For in the absence of Concepcion 45
and her coworkers’ protected activity—had she not spoke out for the union on the radio show,
and had she not (rightfully or wrongfully been suspected by AP of having) demonstrated support
for the union broadcast by “liking” it on Facebook, AP would not—based on its own explanation—
have taken any action against Concepcion. It would not have been demanding documentation,
and it would not have suspended her for a failure to comply with that demand. As the Board 50
JD–58–16
36
explained in Supershuttle of Orange County, Inc., 339 NLRB 1, 2 (2003), about a discharge
based on an unlawfully undertaken investigation of the employee:
As the judge found, the General Counsel established that antiunion animus was a
motivating factor in Petrichella’s discharge. The burden then, shifted to the 5
Respondent to prove that it would have discharged Petrichella even in the
absence of his union activities. Given the Respondent’s unlawful motivation for
investigating Petrichella, the Respondent has created its own barrier to satisfying
its burden of proof. [Emphasis added.]
10
Supershuttle of Orange County is instructive. In that case, the employer contended that it
discharged an employee for misconduct (lying) occurring during an unlawfully motivated
disciplinary investigation. The Board made clear that the unlawfully motivated impetus for the
investigation (in which the alleged lying occurred) fatally undercut the Respondent’s defense.
339 NLRB at 3. Here, Ramirez’s failure to supply the demanded documentation provides the 15
stated basis for her suspension. Yet, as in Supershuttle, this failure to comply with the
management directives “did not exist independently of the unlawfully motivated investigation.” As
in Supershuttle, 339 NLRB at 3, in the instant case,
there is a clear and direct connection between the employer’s unlawful conduct 20
and the reason for the discipline. . . . The common principle is that employers
should not be permitted to take advantage of their unlawful actions, even if
employees may have engaged in conduct that—in other circumstances—might
justify discipline. These cases cannot easily be reconciled with the notion that the
existence of a potential reason for discharge will be sufficient to justify the actual 25
discharge, regardless of the employer’s own unlawful conduct and its causal
connection to the discharge.
In considering this case, it is important to recognize that there was no demonstrated
preexisting wrongdoing by Concepcion that prompted the demand for documentation or the 30
suspension. Other than her protected activity, there was only an asserted suspicion of her
identity, based on a Facebook page. She was not suspended for maintaining a Facebook page
with another’s name. She was suspended for failing to provide documentation requested as part
of the investigation into her identity. Thus, this case bears no relationship to the line of cases,
distinguished by Supershuttle, where an employer unlawfully denies an employee the right to 35
union representation during an investigatory interview but the Board still permits the employee to
be disciplined for the preexisting misconduct that prompted the interview, “because there is an
insufficient connection between the procedural unfair labor practice committed and the
substantive reason for the discipline.” Supershuttle, supra at 3, citing to Taracorp, Inc., 273
NLRB 221 (1984). To the contrary, this case is like the line of Board cases “holding that 40
employee misconduct discovered during an investigation undertaken because of an employee’s
protected activity does not render a discharge lawful.” Kidde, Inc., 294 NLRB 840, 840 fn. 3
(1989) (and cases cited therein). Here, while there was no misconduct per se by Concepcion, the
point is that she was suspended—not for maintaining a Facebook page, not for providing false
documentation, and not for any other misconduct on her part that preexisted the investigation into 45
her status. Rather, she was suspended for not complying with directives to produce
documentation during the investigation—that is the “misconduct” for which she was suspended,
and both the demand for documentation and the suspension “did not exist independently of the
unlawfully motivated investigation.” Supershuttle, supra. Thus, as in Supershuttle, “the
[suspension] was not based on [preexisting] misconduct uncovered during the investigation, but 50
JD–58–16
37
rather on misconduct triggered by and elicited during the investigation.” Id. (bracketing added,
emphasis in original].
I would add that the reliance on AP’s unlawful actions—in this case surveillance of
protected activity—to essentially bar AP from proving that its adverse actions against Concepcion 5
would have been taken in the absence of protected activity is not a technicality, but rather goes to
the heart of Wright Line’s balancing test. As the Supreme Court explained in Mt. Healthy, the
Court’s test avoids a situation that
could place an employee in a better position as a result of the exercise of [ ] 10
protected conduct than he would have occupied had he done nothing. . . . The . . .
principle at stake is sufficiently vindicated if such an employee is placed in no
worse a position than if he had not engaged in the conduct.
Mt. Healthy, 429 U.S. at 285–286 (emphasis added).15
Here, pursuant to the Employer’s rationale for adverse action, due to AP’s unlawful
surveillance of protected activity, Concepcion has been placed in a worse position precisely
because and only because of her and her coworkers’ protected conduct (actual and suspected).
To rearrange the Mt. Healthy articulation of the issue, but to the same point: there is no avoiding 20
the conclusion that acceptance of the Employer’s defense would lead directly to Concepcion
being in “worse a position than if [s]he had not engaged in the [protected] conduct.” Due to AP’s
unlawful surveillance, Concepcion is in “worse a position” “as a result of the exercise of protected
conduct than [s]he would have occupied had [s]he done nothing.”
25
Finally, it is worth pointing out that the policy implications for accepting the Employer’s
defense would be staggering and profound. For instance, with the same rationale, the
Respondent could target all known union supporters for drug tests and then lawfully discharge
any and all that showed results calling for discharge under an otherwise legitimate policy. Such a
scheme would not pass muster under the Act. See McClain of Georgia, Inc., 322 NLRB 367, 377 30
(1996) (discipline imposed as a result of positive drug results found after unlawful discriminatorily
motivated change in drug policy is unlawful); enfd. 138 F.3d 1418 (11th Cir. 1998); see also
Kidde, Inc., 294 NLRB at 840 fn. 3, and cases cited therein.44

44I note that Anheuser-Busch, Inc., 351 NLRB 644 (2007), review denied, 303 Fed. Appx. 899
(D.C. Cir. 2008), is not to the contrary. In that case, a Board majority found that employees
disciplined for “uncontested misconduct . . . . warranting discipline,” proven through use of a
camera unilaterally installed in violation of Section 8(a)(5), could not be made whole (reinstated or
provided backpay). The Board found that as a remedial matter, the employees’ discipline was
“for just cause” under Section 10(c) of the Act. Unlike the instant case, Anheuser-Busch merely
presented a remedial question for an 8(a)(5) violation affecting employees who had engaged in
proven misconduct warranting discipline. The only issue was the appropriate remedy for the
underlying 8(a)(5) violation. Here, very unlike Anheuser-Busch, the issue at hand is not remedial.
Rather the contention and the finding is that the discipline (and demand for documentation)
independently constituted discriminatory animus-based violations of the Act. Moreover, even in
terms of remedy, there simply is no proven misconduct (apart from a failure to produce
documentation) by Concepcion—the Respondent’s suspicion hardly amounts to “uncontested
misconduct warranting discipline.”
JD–58–16
38
Thus, even assuming AP had some valid motives for requiring documentation from
Concepcion, and suspending her when she failed to produce it, the Respondent cannot prove it
would have acted on those valid motives in the absence of Concepcion and her coworkers’
protected activity (and, in the case of the “like,” the Employer’s belief of Concepcion’s protected
activity). As in Supershuttle of Orange County, “Given the Respondent’s unlawful motivation for 5
investigating [the employees], the Respondent has created its own barrier to satisfying its burden
of proof.” 339 NLRB at 2. In this situation, the General Counsel’s demonstrated prima facie proof
of unlawful motive for the documentation and suspension proves the violation without regard to
any weighing of good and bad motive. Wright Line, supra at 1089, fn. 14.45
10
15
20

45The matter ends there, but for the sake of completeness I would add that the suggestion in
the Respondent’s brief (R. Br. at 35) that Ramirez’s Facebook surveillance triggered “a legal
obligation to confirm Concepcion’s identity” is unsupported. Much of the claim of the
“reasonableness”—by which the Respondent means a nondiscriminatory valid motive—for the
Respondent’s actions rests on a suggestion that by failing to investigate the matter, the
Respondent risked liability under the Immigration Reform and Control Act of 1986 ("IRCA"). But
this has not been demonstrated. The Respondent sums up the “evidence” against Concepcion
(R. Br. at 34–35) as follows: (1) there was one or more pictures of (someone assumed to be)
Concepcion on Trujillo’s Facebook page, (2) Trujillo refers to others on her Facebook page who
have the name Trujillo as relatives (e.g. brother, aunt, dad), and (3) Concepcion’s AP benefits file
lists a Trujillo as her beneficiary, sharing her home address. IRCA makes it unlawful to continue
to employ an alien “knowing the alien is (or has become) an unauthorized alien with respect to
such employment.” 8 U.S.C. § 1324a(a)(2). See 8 CFR § 274a.1(l) (“The term knowing includes
not only actual knowledge but also knowledge which may fairly be inferred through notice of
certain facts and circumstances which would lead a person, through the exercise of reasonable
care, to know about a certain condition”). However, the Respondent’s brief does not and cannot
cite to any case remotely suggesting that a Facebook page or beneficiary’s last name provides an
employer with knowledge, actual or fairly inferred, that the employee is unauthorized for
employment. This standard requires “positive information” that the employee is undocumented.
See, Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554-555 (9th Cir. 1991) (constructive
knowledge requires “positive information” and is “sparingly applied”). The point, of course, is not
that it could not be the case that Concepcion is unauthorized. The point is that Ramirez’s and
AP’s enthusiastic plunge into the issue was, at best, wholly discretionary, and not required by any
authority. Ramirez testified that in two instances in 2012, Facebook discrepancies led her to
undertake similar requests for documentation and execute adverse employment actions.
However, the record contains no evidence of the circumstances in which the Facebook issue
came to Ramirez’s attention in those previous matters, the manner in which the search was
carried out, or the import of what was found. It is, of course, Ramirez’s motivation for this incident
that is squarely at issue here, and whether it would have occurred in the absence of union
activity. It would not have.
JD–58–16
39
V. Assessment of attendance point against Jessenia Maldonado
(complaint paragraph 5 in case 09-CA-162392)
Facts
5
AP maintains an attendance policy pursuant to which one point is assessed for each
absence as long as the employee calls in the absence up to 30 minutes into their scheduled work
shift. Being late to work or leaving early will result in assessment of ½ a point.
When an employee accumulates six points they receive a verbal warning. At eight points 10
they receive a written warning. At ten points they receive a final warning. Beyond ten points is
grounds for possible termination. Points accumulate on a rolling calendar year basis. In other
words, an assessed point “falls off” one year after its assessment.
An employee reports that they will be absent by calling an 800 number designated for this 15
purpose. The employee calls in and leaves a message with their name and supervisor, and
states that they will not be in. The employee can ask at that time that the absence be attributed
to PTO/vacation. This is the exclusive method for calling in absences that are not preapproved.
These calls are made to a voice-recording system. There is not a live person who answers. AP
has employees with the title “manufacturing coordinator” who are assigned to listen to the 20
messages for each shift. (Although the evidence shows that in some cases a supervisor might
listen to messages). There is one manufacturing coordinator for each shift. That employee calls
into the 800 number and uses a passcode to listen to the voicemails left for that shift. The
manufacturing coordinators write down the time of the calls, the name of the employee calling off
or calling in late, their shift, and if they want to be paid PTO or vacation for the absence. The 25
messages are deleted immediately once they are heard.
This written record is called the “call-in sheet.” At the end of the third shift, the call-in
sheet is provided to the “timekeeper” who keeps the attendance records for AP, and assigns
occurrence points, vacation and PTO. 30
According to Ramirez, AP averages about 10-15 call-ins a day, but on a bad weather day
that number can reach upwards of 50.
Employee Ni Phan is the manufacturing coordinator who listens to the answering machine 35
for the second shift. Other employees perform this job for the first and third shift. Barbie T. Myer
is the timekeeper.
Some time the week of July 13, 2015, Ramirez found “a stack” of “call-off/strike script[s],”
in the women’s locker room which had the following typed in English and Spanish: 40
I am not reporting to work today to protest the Company’s unfair labor practices. I
will unconditionally return to work on my next scheduled shift.
Ramirez learned that this strike was being planned for Friday July 17. Anticipating this,45
and with AP having “done some research,” and “learn[ing] that we shouldn’t levy an occurrence
point for folks calling in with this script,” Ramirez asked the manufacturing coordinators “to put a
star or an asterisk next to each name of any person who used this script when they called in on
the 17th.”
50
JD–58–16
40
For the day of July 17th, the call-in sheet lists 27 employees who “won’t be in” (“WBI”).
Nine have an asterisk next to their name indicating that they told the manufacturing coordinator
they were part of the strike. These employees with the asterisk by their name were not assessed
an attendance point by the timekeeper. The remaining WBI employees were given an attendance
point. The nine who were marked as calling in for the strike and who did not receive an 5
attendance point included known union supporters such as Concepcion, Cotto, Sonja Guzman
and Vianey Guzman.
Second shift employee Jessenia Maldonado testified that she called in and left a message
that she would be involved in the strike, using the language of the script. However, while the call-10
in sheet indicates that Maldonado called off work at 3:36 p.m., there is no asterisk by her name.
Maldonado was assessed a point. Manufacturing Coordinator Ni Phan’s initials indicate that she
was the manufacturing coordinator who recorded the Maldonado absence
Maldonado, who has worked at AP since 2010, is currently employed by AP as a 15
“cashier.” Maldonado was active in the union campaign. For instance, she was involved in
distributing union flyers in the AP parking lot to co-workers and her photograph was included in
photos on some union flyers. Maldonado testified that she learned of the strike on July 16, and
received a copy of the script from a union organizer. She could not remember the time she
called, but it was after 1 p.m. Maldonado was scheduled to work at 4 p.m.46 Maldonado testified 20
that when she called she left her message by reading her script in Spanish. Maldonado testified
that she called three times, which she stated, was typical for her.
As I ruled at trial (Tr. 1107–1108), while the call-in sheet, generally, is admissible as direct
and non-hearsay evidence pursuant to F.R.E. 803(6) (record of a regularly conducted activity), 25
the asterisks, devised as a one-time tool by AP, are not part of “regular practice of the activity”
(F.R.E. 803(6)(C)) associated with maintaining the call-in sheets. We cannot attribute to the
asterisks the reliability on which the 803(6) hearsay exception is premised. This was a one-time
notation, which the maintenance coordinators were to utilize on this one particular day. See,
Steven Goode & Olin Guy Wellborn III, Courtroom Handbook on Federal Evidence, Chapter 5, 30
Evidence Rules with Authors’ Commentary, Article VIII, Authors’ Comments (4) (2016) (“The
second element [of Rule 803(6)], routineness, goes to the heart of the theory of trustworthiness of
business records. Reliability does not attach to a statement just because a person engaged in a
business activity writes it down; it is essential to any claim of reliability that the statement be of a
type that persons engaged in the activity record routinely”).35
This is particularly true with regard to Ni Phan, the coordinator who took and recorded
information about Maldonado’s message, as she does not speak Spanish, the language in which
Maldonado’s message was left. Ramirez testified that the procedure in such cases was for the
coordinator to get a Spanish speaker on the shift, either management or an employee, to 40
translate the message. However, Ramirez did not know and the record does not speak to who
assisted Phan. Ni Phan did not testify, for reasons not explained in the record.
Thus, the state of the record is that Maldonado’s testimony is disputed only by hearsay
evidence in the form of the lack of an asterisk, omitted by an employee using a one-time, new 45
marking procedure, who did not speak the language at issue, and who did not testify about what
she heard or what procedure she used to mark the asterisks or even to learn what the Spanish

46Ramirez indicated that Maldonado would have been scheduled to begin at 4:30 p.m. I do
not resolve that immaterial dispute.
JD–58–16
41
message said. I note that Ni Phan did not mark any asterisks next to the four call-offs she
recorded. This could mean nothing, of course. But it is also consistent with someone who did not
understand or know that she was supposed to use asterisks. In the absence of Ni Phan’s
testimony, I credit Maldonado’s undisputed testimony.47
5
Maldonado testified that the following week she went to Ramirez’s office to ask how many
points she had accumulated. When Ramirez told her seven, Maldonado said, “why seven? I only
have six.” Maldonado asked when her last point was received. Ramirez said July 17th.
Maldonado asked again, “[t]he last point was given to me on July 17th?” Ramirez said yes.
Maldonado did not mention the strike or protest, but said, “Okay. Thank you very much.” Then 10
she left.48
Analysis
The General Counsel alleges that the Respondent violated the Act by assessing 15
Maldonado an attendance point for participation in the one-day strike on July 17.
The General Counsel argues (GC Br. at 46) and the Respondent (R. Br. at 38–40) does
not dispute that the one-day “call-off” strike engaged in by some of the employees on July 17 was
protected activity. Indeed, the Respondent anticipated the strike, and instructed its manufacturing 20
coordinators to note those employees who called in to say they were striking and then instructed
the timekeeper not to assess attendance points against such employees. According to the call-in
sheets, nine of 27 employees who called saying they wouldn’t be in that day had an asterisk next
to their name, indicating that they had announced they were part of the strike. They were not
assessed an attendance point by the Respondent.25
As I have found, Maldonado also called in and announced to the employer that her
absence from work was because she was participating in the strike. Given this, and although I
am inclined to accept that the Respondent assessed Maldonado with an assessment point for no
reason other than that an asterisk was not placed by her name on the call-in sheet, the violation 30
of Section 8(a)(1) of the Act is complete.
Maldonado was engaged in protected and concerted activity when she called in, read the
script, and joined in the strike. In this context, as the Board recognized in Ideal Dyeing &
Finishing Co., 300 NLRB 303, 303 (1990), enfd. without op. 956 F.2d 1167 (9th Cir. 1992), an 35

47Although, I do not credit her claim that she called in three times. It did not have the ring of
truth, and it seems unlikely for her to do that, and unlikely that it would not be referenced in some
way on the call-in sheet. In any event, while it strikes me as an overzealous effort to burnish the
record by Maldonado, and while it is a factor weighing against her credibility, on balance I believe
her undisputed testimony that she called in and left the strike message using the script.
48Ramirez denied that this happened. She did not recall any conversation with Maldonado
shortly after July 17, about getting a point. The dispute is not particularly material. There is no
dispute that Maldonado was assessed a point. If I have to choose, I would credit Maldonado. I
think she testified credibly, and the short amicable conversation would have been far more
significant to her than to Ramirez. Maldonado did not argue with Ramirez or mention the strike.
She testified that she “didn’t want to argue” and figured it was “their word against ours.” I find that
to be believable conduct for an employee in her situation, given the circumstances. But it also
might account for why Ramirez does not remember the encounter. From her end it was a brief,
noncontentious, uneventful, middle-of-the workday question from an employee.
JD–58–16
42
employer’s mistaken (albeit good faith) belief that an employee engaged in misconduct is not a
defense to a finding that an employee was disciplined (in that case discharged) for engaging in
protected activity. Notably, in Ideal Dyeing, the Board rejected the employer’s argument that the
discipline was lawful where there was no showing that the employer was aware that the
employee was engaged in protected activity (Id.), citing the Supreme Court’s observation that “[a] 5
protected activity acquires a precarious status if innocent employees can be discharged for
engaging in it, even though the employer acts in good faith.” NLRB v. Burnup & Sims, 379 U.S.
21, 23 (1964); see also, Keco Industries, 306 NLRB 15, 17 (1992) (“Where an employee is
disciplined for having engaged in misconduct in the course of union activity, the employer’s
honest belief that the activity was unprotected is not a defense if, in fact, the misconduct did not 10
occur”).

In this case, Maldonado was disciplined (i.e., assessed an attendance point) on the false
belief by the Respondent that she had called off for a non-protected and punishable reason for
which a point could be assessed. But the Respondent’s belief was inaccurate. And the fact that 15
protected activity was occurring this day, and was being manifest through call-ins asserting it,
was, indeed, known to the Respondent. Thus, Maldonado was engaged in the type of activity
that the Respondent knew, on that day, was being utilized by some employees for protected and
concerted activity. Under these circumstances, it must bear the cost of its mistake. For without
regard to the Respondent’s motive, to find otherwise would cause employees to reasonably fear 20
that continued participation in union and protected and concerted activities would put them at risk
of mistakenly being punished for this participation. Ideal Dyeing, supra. I find that the
Respondent violated Section 8(a)(1), as alleged.49
VI. The wage increase and informing employees that wages 25
are personal and confidential and should not be shared
(complaint paragraphs 5(j) and (l))
Facts
30
Susan Brunker is AP’s direct of compensation, benefits, and HR. She has held this
position since she started working for AP in June 2014. Her office is in AP’s Blue Ash, Ohio
office, which is approximately ten minutes away from AP’s Cincinnati facility. Brunker has
responsibility for the compensation and benefit programs and plans and HR information systems,
for all of the AP locations, which include approximately 4000 employees.35
Brunker testified that when she was hired in June 2014, there were several issues that
needed to be addressed at AP. One of them was compensation. Wages were out of line with the
market, as indicated by high turnover, particularly in the “protein” plants, and among those,
particularly at the Enid, Oklahoma location. (The protein plants, which refers to the product mix, 40
include a plant in Portland, four locations in Enid, Oklahoma, plus a distribution center, and the
Cincinnati location.) Brunker’s predecessor had told her that compensation had not been
reviewed in many years for the protein plants.
To begin the wage restructuring process, Brunker worked with plant leadership and HR 45
directors to become familiar with operations, the jobs, and market data. A plan was conceived to

49Given the 8(a)(1) finding, it is unnecessary to decide whether, as alleged in the complaint,
the discipline also violates Section 8(a)(3) of the Act, as it would not materially affect the remedy.
Ideal Dyeing, 300 NLRB 303, 303 fn. 5; Kingsbury, Inc., 355 NLRB 1195, 1195 (2010). I note,
however, that on brief the General Counsel does not pursue an 8(a)(3) theory of violation.
JD–58–16
43
do a market study and when that was done, to compare the market to current pay grades. From
there, Brunker planned to look at restructuring the pay program—AP had acquired many of the
plants and they were all operating under their own historical pay practices. Brunker wanted to
consolidate pay programs across the entire company. Brunker was broadly discussing these
plans and goals in teleconferences with corporate and other plant leadership in the summer and 5
fall of 2014. However, other priorities meant that these wage plans were “backburnered.”50
According to Brunker, the wage issue was returned to in “I would say February of 2015.”
Brunker’s February 4, 2015 email to Chernock in Cincinnati, and to her counterpart for the Enid,
Oklahoma plants, explained that with other matters nearing completion, 10
I would like to fast track the evaluation of wages for the plants. I will guide the
process but will count on you for the ‘plant’ perspective. Separately I will send you
a meeting invite. In the meantime, below are my thoughts about the approach. If
you have a moment, I would appreciate your ideas about how to approach.15
The email went on to propose a timeline for work on the project that called for a final
proposal to be submitted to Aardema and ultimately to the CEO of AP by March 2. However, that
timeline did not prove realistic. Brunker testified that “we came to appreciate that the problem
was more difficult than we had originally anticipated.” The complicated job title system that had 20
developed over the years made it difficult to fit titles with jobs and peg them to the relevant market
data. Moreover, as a result of the 401(k) audit, Brunker continued to find it necessary to focus
attention on centralizing benefits and solving life insurance overinsurance problems. As of May
17, Brunker was writing Aardema, Chernock, and Blanchard, and sending them an “analysis for
the hourly compensation” that was “still a work in progress.” Pursuant to this plan, the plant HR 25
officials were to slot their plants’ jobs into the proposed pay grades based on market data, and
ensure that jobs matched and compare between plants how the jobs matched up. After that a
cost impact analysis would be developed.
In an email two days later, May 19, Aardema referenced speaking with Mark Porter, 30
identified by Brunker as “a high-ranking official in the company” to whom many of the plant
managers report. As conveyed by Aardema, rather than having every plant slot their jobs into
proposed pay grades, a “straw model” of pay grades and jobs would be developed with a smaller
group that would then be a base model to be adapted for each plant. Aardema wrote that
“[i]deally we can have a draft outline of all the above by the first week in June . . . and then be in a 35
position to share it with the broader group for discussion.” Brunker continued “working through
the final analysis . . . from May, June, and July,” making sure there was an “apples to apples”
comparison between jobs at different plants so that “an appropriate market adjustment based on
the market study” could be developed and finally the matter could be brought to all of the
individual plants for meetings with plant leadership.40

50As Brunker explained, “there were quite a long list of things that needed to be addressed”
when she joined AP. Staffing for her own department needed attention, and there were problems
with data input and configuration generally for compensation. Brunker needed to hire a
compensation and benefits analysis, and until that happened she was doing the work herself.
Benefits work took precedence because benefits had to be arranged for open enrollment for 4000
employees in the October-January timeframe. There was a Department of Labor audit of the
401(k), as well as ongoing regular audits. The result was that the wage project got
“backburnered.”
JD–58–16
44
By mid-summer, Brunker testified that she was fending off “question[s] about why it was
taking so long from the plant leadership because they were having difficulties running their
operations, . . . with not having their wages in place.” Those in leadership expressing concerns to
Brunker included Aardema.
5
During this same time period, employees also had heard about the coming wage increase
through the “rumor mill.” Brunker explained that “[w]e had increased some of the starting wages
for jobs in February as a stop gap until we could kind of finish the whole comprehensive project,
and so the employees that had been with us that were above starting wages . . . had been told
we were working on this; and so our employees, are asking, ‘Well, what about us?’ You know, 10
‘where is our project that you keep telling us about.’”
In response to Aardema’s concerns, on July 8, Brunker sent a long email to Aardema
outlining the complexities involved with the restructuring, including “an un-manageable
assortment of confusing and overlapping pay grades,” the many years since the performance of15
the last analysis, and the continued independent management of pay systems for the companies
acquired by AP in recent years. In her email, Brunker proposed that by September 1 “[a]ll jobs
[would be] assigned to a pay grade based on market competiveness and internal equity.” On
July 10, Aardema reported this up the management chain, recognizing that “[w]hile not related to
the union situation,” an upcoming “communication on the new salary structure next week should20
provide a positive boost for those in the Cincinnati plant.”
Brunker committed to this publicly in a July 15, 2015 memo directed to all employees in
“Enid, Portland, and Cincinnati.” In this memo, Brunker announced plans for a change in the
wage structure that, effective August 30, would result in wage increases for many employees 25
(and decreases for none). Brunker’s memo stated:
I want to take the opportunity to let you know about an extensive project we've
been working on since late 2014 to evaluate the wage rates and pay programs for
hourly associates in Enid, Portland, and Cincinnati. Since October of last year, I 30
have been working with plant leadership to review the wage rates and pay
practices for more than 2,000 associates and 450 job titles working in the protein
plants and distribution center. This project was initiated as part of AP's strategy to
align pay practices across all locations and ensure that our wages and benefits are
competitive in our markets. AP is now ready to fulfill its commitment and will make 35
a significant investment in hourly pay increases that will affect many of our hourly
associates in these locations.
In general, all of our positions are placed in wage ranges, or "grades ", that have a
minimum and maximum hourly rate. Currently, these ranges and related pay 40
processes are different in nearly every location, We have created a new APP
wage structure that will apply to all protein locations and the DC. Every job has
been reviewed and assigned to a grade within this structure. The wage range for
most associates will be changing as a result of this study.
45
What this means for you will depend on where your wage rate falls in your new
grade today. If your current rate is below the minimum of your new grade; you will
receive an increase so that your rate falls within the new range. Rates for many
other associates will also be increased based on internal and external equity.
Please note: If your rate is already above the maximum of the range, your wage 50
rate will NOT be decreased. No associate will see a decrease in this current rate.
JD–58–16
45
Wage rate increases will be communicated through your local HR Manager on an
individual basis. For those affected, increases will be effective on Monday [sic],
August 30th and paid on paychecks dated September 11th. More information on
this transition will be provided soon. We look forward to your support as we work 5
through this transition.
A question and answer format sheet came with this, providing essentially similar
information, although some of it adds to the foregoing. For the sake of completeness I reproduce
the text of the question and answer sheet here: 10
Questions & Answers
New Hourly Pay Structure
The following questions and answers are being provided regarding t1PF's direction
to change our wage structure for hourly associates in Enid, Portland, Cincinnati 15
and the DC.
Why is AdvancePierre changing the hourly wage structure?
The structure is being changed to have a common approach to wages and pay
processes across all locations in Enid, Portland, Cincinnati and the Distribution 20
Center.
Will the new structure result in a wage increase for protein plant and DC
hourly associates?
Many associates will receive an increase based on where they fall in their wage 25
range, or "grade ". Here's an explanation:
ï‚· If an associate is being paid below the minimum rate of their new range;
he/she would receive an. increase to the new minimum
30
ï‚· The rates for many other associates whose rate falls within the new range
will be increased based on internal and external equity.
ï‚· If an associate is being paid at the maximum rate of their current range,
and the maximum rate is increased in the new structure; the associate 35
would be eligible for an increase on their next review date.
What other changes are under review with this new approach?
We will be working to have a consistent approach to shift differentials, weekend
pay, the timing of when increases are paid, and other related considerations. 40
These issues will be addressed separately and communicated at a later date,
Is it possible that my current wage rate could be less as a result of this new
process?
No. There will be no decreases in wage rates as a result of this process.45
When will this process be completed? How will the details be
communicated?
JD–58–16
46
Wage ranges and any associated increases will be effective on Monday, August
31st and paid on paychecks September 4th. Details will be communicated through
individual letters and meetings at each location.
At the time this July 15 memo was distributed, the wage plan was not complete. Brunker5
testified that “at that point in time” “we were starting to do the cost analysis so we had some
preliminary numbers that we were working with and they were finalizing the numbers.” Brunker
estimated “it was probably 80% done at that time.”
On August 27, 2015, the following letter was sent to each employee. The text reproduced 10
below is consistent with the template letter admitted into evidence. When sent to each employee,
the individual employee’s name, supervisor’s name, current and new pay rate and percentage
increase were inserted for each employee. The letter states:
15
August 27, 2015
Associate Name
Supervisor Name
Location
20
TO:
FROM: Sue Brunker
Director, Compensation & Benefits
25
SUBJECT: New Hourly Wage Structure
In follow up to my letter to you in July, I want to share with you the results of the
project started in late 2014 to evaluate the wage rates and pay programs for hourly
associates in Enid, Portland, and Cincinnati. Together with plant and DC 30
leadership, we have worked to align pay practices across all locations and ensure
that our wage structure is competitive. We are pleased to announce that APE is
making a significant investment in hourly pay increases for many of our
associates, and that we've developed a consistent pay program across all
locations.35
With this new approach, wages for all associates will be reviewed as part of our
merit process in February each year. We have also aligned pay grades across all
APE locations This way, people performing similar functions are assigned to the
same pay grade regardless of their location. In the situation where an associate's 40
pay reaches the maximum rate of their grade, the annual merit review would be
administered as a lump sum bonus in lieu of a merit increase.
As part of this new structure, certain associates are receiving a pay adjustment at
this time. You are included in this group. Others who are recent hires, those at the 45
maximum of their pay grade, or those who received recent pay adjustments will be
eligible for a merit review in February 2016.
As a reminder, information about your pay is considered personal and confidential
and should not be shared with other associates. [Emphasis added.]50
JD–58–16
47
Here's what this means for you:
Your current base pay rate: <$ >
New base pay rate: <$ >
% increase: < x.x %>5
Effective date of new rate: August 30, 2015
Pay date of new rate:. September 11, 2015
Please contact your HR Representative if you have any questions.
10
Almost all employees at the Cincinnati plant—approximately 588 of 596 received a wage
increase under the pay increase announced August 27. Although there are no specifics in the
record, Brunker testified that more money was paid in wage increases at the Enid, Oklahoma
facilities than in Cincinnati as part of the wage plan. Because they were already paid above
market, there were few wage increases made at the Portland plant.15
Analysis
a. The wage increase
20
The General Counsel alleges that Brunker’s August 30 announcement of the
implementation of the wage increase violated Section 8(a)(3) of the Act. It further alleges that
Brunker’s July 15 letter announcing an upcoming wage increase violated Section 8(a)(1) of the
Act.
25
The Supreme Court has held that the Act, "prohibits not only intrusive threats and
promises but also conduct immediately favorable to employees which is undertaken with the
express purpose of infringing upon their freedom of choice for or against unionization." NLRB v.
Exchange Parts, 375 U.S. 405, 409 (1964). Where such conduct is asserted to have violated
Section 8(a)(3), the Board uses its Wright Line dual motive analysis to assess the evidence. 30
Clock Electric, 338 NLRB 806 (2003).
Whether considered as an 8(a)(1) or 8(a)(3) violation, there is an assessment of the
employer’s motive. In NLRB v. Exchange Parts, the Supreme Court held that "the conferral of
employee benefits while a representation election is pending, for the purpose of inducing 35
employees to vote against the union," interferes with the employees' protected right to organize.
"Similarly, an employer cannot time the announcement of the benefit in order to discourage union
support, and the Board may separately scrutinize the timing of the benefit announcement to
determine its lawfulness." Mercy Hospital Mercy Southwest, 338 NLRB 545 (2002). “The
lawfulness of an employer’s conferral of benefits during a union organizing campaign depends 40
upon its motive.” Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 1 fn. 2 (2016). “The
Board infers improper motive and interference with employees' Sec. 7 rights when an employer
grants benefits during an organizing campaign without showing a legitimate business reason.”
Id.; ManorCare Health Service-Easton, 356 NLRB 202, 222 (2010), enfd. 661 F.3d 1139 (D.C.
Cir. 2011). Notably, the rule set out in Exchange Parts is also applicable to promises or conferral 45
of benefits during an organizational campaign but before a representation petition has been filed.
Hampton Inn NY–JFK Airport, 348 NLRB 16, 17 (2006).
50
JD–58–16
48
In this case, AP clearly knew of the union organizing campaign when it formally
announced, and then later implemented its wage increase. Given this, in terms of the 8(a)(3)
implementation allegation, pursuant to Wright Line, there was union activity, employer knowledge,
and, of course, the animus found in other parts of this decision. Thus, the burden is on the
Respondent to show that it would have implemented the wage increase even in the absence of 5
the union activity. In terms of the 8(a)(1) announcement allegation, the Board’s analysis places
the burden on the Respondent to show a legitimate business reason for promising the wage
increases that overcomes the inference of improper motive and interference with Section 7 rights.
Vista Del Sol Healthcare, supra.
10
In both cases, I believe that AP has made that showing. Brunker’s testimony,
corroborated by at least some documentation, demonstrates that the creation of a new pay and/or
job structure at the protein plants was initiated soon after Brunker was hired in June 2014.
However, this effort was “backburnered” for other work concerns. Brunker’s testimony,
corroborated by her February 4, 2015 email to Chernock and her counterpart in the Enid, 15
Oklahoma facility, demonstrates that as of that date—months before any hint of a union
campaign existed—Brunker internally announced plans “to fast track the evaluation of wages for
the plants.” Thus, the goal of reevaluating wages at the “protein plants” (not just in Cincinnati)
was reactivated. At that point her goal was to submit a final proposal by March 2, again well
before there was any hint of a union drive.20
This timeline was not met, but that does not undercut the evidence that management
desired, sooner rather than later, and before they knew of, and even before there was a union
drive, to realign compensation, not only at Cincinnati but at the other AP protein plants. The
record shows a steady effort to work on the matter through the spring and summer of 2015. This 25
was a multiplant plan that was envisioned, designed, and implemented. The scope of the wage
reevaluation plan bolsters its business legitimacy and cuts against the inference that the wage
increase was for other than legitimate business reasons.51
Having said that, the record is also clear that by July, Brunker was receiving some 30
pressure as to why it was taking so long to design and implement the wage increase. In part this
pressure was from employees who had heard rumors of a coming wage increase and had seen
some of the starting wages rise in February, as a stopgap measure that occurred, again,
obviously, before the union drive was initiated. But there was also pressure from “plant
leadership,” including Aardema, who recognized, as he wrote in a portion of a July 10 email 35
reporting on the union, that “[w]hile not related to the union situation, the communication on the
new salary structure next week should provide a positive boost for those in the Cincinnati plant.”

51The General Counsel contends that while most Cincinnati employees received the wage
increase, “only a fraction of employees throughout Respondent’s several facilities received a
raise at the end of August.” There is no record support for the latter proposition, at least if by
“fraction” the General Counsel is suggesting “few.” Brunker’s unchallenged testimony was that
the wage increases were implemented across all the “protein” locations on August 30: Enid,
Oklahoma, Portland, Oregon, and Cincinnati. Brunker allowed that there were not many wage
increases paid at the Portland facility, because “[t]hey were actually already paid pretty well
above market,” but testified that “[w]e actually gave more money to Enid, Oklahoma” than was
paid in Cincinnati. I found Brunker to be a credible witness.
JD–58–16
49
While it seems likely—perhaps obvious—that the union was a reason that Aardema and
other top management wanted the wage reevaluation completed and implemented earlier rather
than later, the evidence points to legitimate business reasons as the motive for the timing and
implementation. Brunker’s lengthy July 8 email response to Aardema’s questions about the pay
raise process demonstrates both the complexity and scope of the endeavor. I read it as a 5
rejoinder to any concerns expressed by Aardema as to the progress of the wage restructuring.
In any event, by July 8, Brunker was proposing to complete and implement the plan by
September 1. This was consistent with her testimony, and the response to Aardema does not
indicate a suspicious effort to speed up the project—a project that the Respondent has shown 10
was begun, and then efforts redoubled, before the union drive began. In my view, the General
Counsel’s case would be much stronger had the Respondent, for instance, upon learning of the
union drive, shelved the multiplant wage plan and moved immediately to implement a wage plan
at Cincinnati only. But by all evidence that was not the case. Even after the union drive began,
the Respondent continued working on the plan and nearly four months after the union drive 15
became known to it, implemented the new wage plan across multiple plants. Under these
circumstances, I find that the Respondent has demonstrated a legitimate business reason for the
August 31 implementation of the wage increase, and thus, it does not violate the Act.52
Apart from the implementation of the pay increase, the General Counsel challenges as an 20
unlawful violation of Section 8(a)(1), the July 15 announcement from Brunker to employees at the
Cincinnati, Enid, and Portland plants, that there would be a new AP wage structure, including pay
rates for many employees, at the end of August. The General Counsel calls the timing of this
announcement “arbitrary,” and points out that the details of the wage plan had not been finalized
as of this date. That is true as far as it goes. There was work still to be done, and this 25
announcement could have been made earlier or later. But given that the July 15 memo to
employees accurately set forth the process to be followed in the end-of-August pay changes, I do
not see how this changes the situation. As with the pay increase, this July 15 announcement was
sent to employees at all the protein plants, not just Cincinnati, and it recounted the development
of a process leading to the wage restructuring that had been in development since long before 30
the Union was on the scene. It seems to me to be legitimate for the Respondent to prepare
employees by informing them of a pay change that it was planning to implement in 45 days.
Here, it is relevant that there seems to be no cabining principle to the General Counsel’s
argument. Board precedent supports the General Counsel’s view that a conferral of a benefit can 35
violate the Act even where, as here, there is a union campaign but no representation petition
filed. But in that case, it seems that the General Counsel takes the position that no time is the
right time to announce a wage increase, long studied and planned, and no time is the right time to
implement it. While the Board must be alert to a conferral of benefits timed to discourage union
support, a union’s organizing interest and campaign is not padlock on an employer’s ability to 40
update and revamp its operations, including its wage structure—changes it would have made in
the absence of union activity. These are not necessarily easy interests to balance. But in this
case, I believe the Respondent has demonstrated that its wage restructuring, including its

52I note that the General Counsel alleges that the wage implementation violates Section
8(a)(3) of the Act. However, its argument (GC Br. at 40–43) is devoted to an 8(a)(1) theory of
unlawful interference. In any event, I reject both theories. As to an 8(a)(3) theory, alleged but
unargued by the General Counsel except in a conclusory assertion (GC Br. at 43), for the
reasons set out in the text I find that the evidence supports the conclusion, and I find that the pay
raise would have been implemented even in the absence of union activity by the employees.
JD–58–16
50
announcement, was part of a long anticipated plan unrelated to its employees’ union activity. I
will dismiss these allegations of the complaint (complaint paragraphs 5(j) and 6(f)).53
b. Wage confidentiality5
As discussed, Brunker sent a letter, dated August 27, announcing implementation of the
new pay structure and explaining to each employee their new pay rate. After preliminary and
general information about the new pay structure, and just before the letter turned to the effect of
the restructuring on the individual’s pay, the letter stated:10
As a reminder, information about your pay is considered personal and confidential
and should not be shared with other associates.
The General Counsel alleges that this statement—made to each employee in the letter 15
they received telling them their new wage rate—violates the Act.
As the Respondent concedes (R. Br. at 42), “this statement is not consistent with current
Board law.” Indeed, that has long been the case. See Triana Industries, 245 NLRB 1258, 1258
(1979) (unlawful to tell employees "[n]ot to go around asking the other employees how much they 20
were making, because some of them were making more than others."); see, Parexel Int’l, LLC,
356 NLRB 516, 518 (2011) (“our precedents provide that restrictions on wage discussions are
violations of Section 8(a)(1)”); Coosa Valley Convalescent Center, 224 NLRB 1288, 1289 (1976).
Further, it does not matter whether the directive is embodied in a "rule the breach of which 25
would imply sanctions." Triana, supra (overruling ALJ who found directive not to discuss other
employees' pay lawful because it did not rise to the level of a "rule"). See also, W.R. Grace Co.,
240 NLRB 813, 816 (1979) ("as a supervisor's 'request' or expression of 'preference' that an
employee comply with a policy of confidentiality nevertheless implies that employees run the risk
of supervisory displeasure and possible adverse consequences for noncompliance to a degree 30
sufficient to constitute interference, restraint, and coercion under the Act").
Accordingly, I find that this statement to employees violates the Act as alleged.
35
VII. Solicitation of grievances (complaint paragraph 5(k))
Facts
For years, AP maintained a suggestion box in the hallway. It contained suggestions40
unresponded to from as many as eight years ago.

53I recognize and have considered that evidence of union animus in other unfair labor
practices supports a finding that the motive for the wage increase was to interfere with the
employees’ Section 7 rights. Vista Del Sol Healthcare, 363 NLRB No. 135, slip op. at 1 fn. 2
(2016). However, that animus does not disprove a legitimate business reason for the wage
increase here. Nor does it undercut the evidence that the increase would have been promulgated
in the absence of union activity. I find that even considering the employer’s other antiunion
animus, its protein-plant-wide wage restructuring, long in the works, does not violate the Act.
JD–58–16
51
On or about July 15, 2015, AP implemented “a new communication tool called C.A.T.s.
(Communicating Answers Tracking System) as a way for you to express questions, concerns,
thoughts, and ideas and to ensure that your requests are addressed in a timely manner.”
A memo outlining the program was posted by the time clock in the production hallway. 5
The memo stated in full:
Last month during Petra [Sterwerf]'s business review meetings, we discussed a
new communication tool called C.A.T.S. (Communicating Answers Tracking
System) as a way for you to express questions, concerns, thoughts, and ideas and 10
to ensure that your requests are addressed in a timely manner.
Effective today, we are implementing CATS and forms can be found in the
Production Office and in Human Resources.
15
How does it work for you:
ï‚· Complete a CATS form
ï‚· Place it in the locked box in the hallway that currently says Job Bids
ï‚· An HR representative will pull the CATS forms daily.20
ï‚· HR will deliver to the appropriate person to answer your question/concern /idea
ï‚· The appropriate person or your supervisor will follow up with you within a
designated amount of time.
We truly value your contribution to AdvancePierre Foods and look forward to 25
building stronger communication!
On July 16, 2015, Plant Manager Sterwerf sent a note to other managers saying,
The supervisors are starting to push CATS to our team members . . . please make 30
sure we are checking the box daily and getting the right people to respond to the
questions.
Definitely want to start strong!
Also on July 16, Stanford sent an email to supervisors with attached CATS: 35
Attached [is] the following information to cover with your associates around a new
communication tool called CATS that is being rolled out. . . . Show the associates
the CATS form and walk them through how it is to be used.
40
Ramirez checks the CATS/job bids box daily. As Plant Manager Sterwerf explained,
based on the subject of the inquiry or complaint Ramirez will “get it to the appropriate manager or
subject matter expert, and then formulate a response to give back to the team member, so that
we can close the loop on their concerns.” Sonja Guzman testified that her supervisor first
showed her the form and told her “that sheet was there where we could circle something on it, 45
which we wanted to change” and “in 48 hours there would be a response.”
Just a few days after the CATS announcement, on July 20, Ronnie Fox submitted the first
CATS form, with a suggestion and comment about changing or eliminating the accumulation of
JD–58–16
52
attendance points. Sonja Guzman encouraged him to submit it, because she knew employees
“were really worried about the points, that they were going to lose their jobs.”
Upon receiving Fox’s CATS form, Sterwerf sent a note to Ramirez, Chernock, Aardema
and Ernie Hayes: “It’s important that we log this and get a response back to Ronnie [Fox] in 48 5
hours or less to build credibility with this new program.” Ramirez asked Aardema and Chernock,
with a copy to Sterwerf and Hayes, “Can you please let me know if we have considered making
any changes to the point system? I know we were getting feedback from other locations, but had
not heard how that went.” The last reference was to changes in attendance points policy that had
been made at other plants. Ramirez contacted Fox and told Fox that “they’re working on it” and 10
they were trying to get in contact with other AP plants and have a “unified” system as to points
and occurrences. To date, no changes have been made at AP’s Cincinnati plant in response to
Fox’s CATS form.
A couple of weeks later, approximately August 4, a packet of 20–30 CATS forms stapled 15
together were provided to Sterwerf by Ramirez. She had received them from employees Carmen
Cotto and Charles Rogers. Most asked for a starting wage of $15 an hour, and had a union logo
or legend added across the top. The one of these in evidence stated in the comments: “A Union
For a Real Voice on the job!” Sterwerf and Ramirez met and “decided that, basically, we would
not respond to these because they weren’t our forms,” due to their being “alter[ed]” with the union 20
logo being added, and also “because as a plant manager, I don’t have the ability to change the
wages, the starting minimum wage anyway.”
There have been additional CATS forms used by employees. Two CATS forms dated
August 7, were received from the same employee, in which he complained (R. Exh. 21) about25
actions of a QC employee, whose name the CATS signer wrote as “Vioney,” allegedly “looking
the other way” about GMP violations committed by people “she is friends with or close to.” These
CATS complaints were referred to the QA manager for response. Sterwerf characterized this
CATS complaint as a “Union GMP violation.”54 Some employees have used CATS forms to
submit concerns about an occurrence point they received, and as a result of submitting the form 30
were able to use a vacation day to avoid getting the occurrence.
Testimony was offered about the origins of the idea for the CATS system at AP. Plant
Manager Sterwerf, who was hired at AP in September 2014, had previously worked for Hillshire
Farms (previously Sara Lee), a unionized facility in Claryville, Kentucky. She had used the CATS35
system there. She testified that, dissatisfied with the communication at AP with employees,
sometime “after Christmas, early Spring” she decided “in her [own] mind“ that CATS would be
beneficial to the AP plant. She talked to Stanford about bringing some “lean concepts and tools”
that had been used at Claryville, and “CATS was one of those.” Stanford testified he first used
CATS about ten years ago when working for Sara Lee (then Hillshire). He testified that in 40
approximately March 2014, he told Ramirez about CATS and told her “it was a great tool for
employee involvement, employee engagement, and very good, that we should do something with
it, you know, implement it.” Ramirez testified that she talked to Stanford on March 12, and he
mentioned “lean” and “continuous improvement” tools from Hillshire, including “a suggestion box”
to which replies were made in 48 hours without using the specific term CATS. Ramirez did not 45
testify that there was a plan to implement CATS in March.

54The CATS form, submitted by employee Travis Waldorf, referred to “Vioney.” Sterwerf
testified that she assumed this referred to Vianey Guzman. Vianey Guzman, who testified in the
hearing, is a union supporter and a QC inspector.
JD–58–16
53
In a “business review meeting” with employees at the end of May, around Memorial day,
called to review performance and safety issues, Sterwerf talked about the CATS system. She
described how it was used at her former facility, and examples of how it was used in conjunction
with layoffs, among other things, at Hillshire. Sterwerf told the employees to “stay tuned.”
5
On June 2, 2015, she sent an email to AP supervisors Fernando Chappell, Dwayne
Stanford (operations manager) and Jeff Frazen (warehouse manager), all of whom had come
from Hillshire too, asking, “Do any of you have a blank CATS form from Claryville or could you get
me one? I would like to tailor it for our use here.”
10
By email dated June 3, Sterwerf forwarded some examples of CATS forms used at
Hillshire, presumably obtained from Chappell, Stanford, or Frazen, to Aardema and Chernock.
Her email explained how the CATS system worked. She noted that at Hillshire, “[t]he problem
was that many times we were not following up on issues that were brought up in passing to
managers and supervisors on the floor,” so Hillshire implemented this system that she noted was 15
developed by Toyota. She wrote:
The form notifies us of the concern, HR logs it into a database and we had 48
hours to get a response back to the team member. I then summarized the
information and updated the team at my business review meetings. I would 20
discuss our fill rate and then I would talk about key ideas that came from the
process.
It was powerful stuff . . . we did not intend for it to drop grievances but it did
because the[ ] team saw they got a quicker response directly from a manager.25
[Ellipses in original].
After that, Sterwerf met with AP’s “leadership team” and showed the forms to managers.
Sterwerf testified that Ramirez “tailored the form a little bit,” but, in fact, the form used is identical
to one of the Hillshire forms that Sterwerf forwarded to Aardema and Chernock on June 3.30
Analysis
The General Counsel alleges that the implementation of the CATS grievance system
constitutes an unlawful solicitation of grievances and implied promise to remedy the grievances,35
in violation of Section 8(a)(1).
“Absent a previous practice of doing so . . . the solicitation of grievances during an
organizational campaign accompanied by a promise, expressed or implied, to remedy such
grievances violates the Act.” (internal quotations omitted). Maple Grove Health Care Center, 33040
NLRB 775, 775 (2000) (citing, Capitol EMI Music, 311 NLRB 997 (1993), enfd. mem. 23 F.3d 399
(4th Cir. 1994)). "[I]t is not the solicitation of grievances itself that is coercive and violative of
Section 8(a)(1), but the promise to correct grievances . . . that is unlawful." Uarco, Inc., 216
NLRB 1, 2 (1974); Maple Grove Health Care Center, supra (“it is the promise, expressed or
implied, to remedy the grievances that constitutes the essence of the violation”). "The solicitation 45
of grievances alone is not unlawful, but it raises an inference that the employer is promising to
remedy the grievances." Amptech, Inc., 342 NLRB 1131, 1137 (2004), enfd. 165 Fed. Appx. 435
(6th Cir. 2006); Blue Grass Industries, 287 NLRB 274, 274 fn. 4 (1987); Uarco, Inc., 216 NLRB at
2. “This inference is particularly compelling when, during a union organizational campaign, an
employer that has not previously had a practice of soliciting employee grievances institutes such 50
a practice.” Amptech, Inc., supra; Maple Grove Health Care Center, 330 NLRB at 775 (“the
JD–58–16
54
solicitation of grievances in the midst of a union campaign inherently constitutes an implied
promise to remedy the grievances”).
“[T]he fact an employer's representative does not make a commitment to specifically take
corrective action does not abrogate the anticipation of improved conditions expectable for the 5
employees involved.” Maple Grove Health Care Center, 330 NLRB at 775. “In connection with
the solicitation of grievances, a statement that the employer is ‘looking into’ making changes
desired by employees indicates that action is being contemplated and constitutes an implied
promise of improvements.” Desert Springs Hospital Medical Center, 363 NLRB No. 185, slip op.
at 11 (2016); see also, Purple Communications, 361 NLRB No. 43, slip op. at 4 (2014) 10
(statements that employer “looking into” “recalibrating” productivity standards are objectionable in
representation election context).
Here, the Respondent introduced a new, formalized, and much touted solicitation-of-
grievance program—the CATS system—in the midst of the union campaign. It was first 15
mentioned to employees in a “business review” meeting near the end of May, at which time
Sterwerf and the Respondent were very aware of and attuned to the union campaign. The CATS
system was implemented July 15.
CATS was openly explained to employees in the introductory memo as a way to “express 20
questions, concerns, thoughts, and ideas and to ensure that your requests are addressed in a
timely manner.” Previously there had been no procedure to solicit grievances—the hallway
suggestion box had contained questions unanswered for eight years. The implementation of the
CATS system constituted the institution of an entirely new program of solicitation of grievances, in
the midst of an organizing campaign. Thus, there is a “particularly” “compelling inference” that 25
the employer is promising to remedy grievances. Amptech, supra.
Here, there was no rebuttal whatsoever of this “compelling inference” that the Respondent
was promising to remedy the grievances. Indeed, the response to the very first CATS
complaint—submitted by Fox on July 20, and requesting a change in the attendance point 30
system—was that “they’re working on it.” The implementation of CATS was a plain violation of the
Act, under the controlling precedent.
The Respondent’s defense is without force. It argues (R. Br. at 43) that “[t]here is no
implicit (or explicit) guarantee that topics or suggestions raised through CATS would be 35
implemented or remedied.” (emphasis added). However, the lack of guaranteed redress is not
the standard which the Board applies. Rather, the violation is demonstrated by commencing a
new practice of soliciting employee grievances in the middle of a union campaign—as a matter of
law, this raises the inference of an unlawful promise to remedy the grievances. Amptech, supra;
Maple Grove Health Care Center, 330 NLRB at 775 (“the fact an employer's representative does 40
not make a commitment to specifically take corrective action does not abrogate the anticipation of
improved conditions expectable for the employees involved”).
The Respondent also contends that the CATS system, like the wage increase, was in the
works even before the union drive began. But neither the facts nor the precedent provide much 45
of a defense here. Unlike the multiplant wage restructuring that had been worked on, on and off,
for a year, Sterwerf vaguely dated the idea of having CATS at AP to the claim that “in her [own]
mind” she had decided, between Christmas 2014 and Spring 2015, that the CATS system she
used in her previous employment would be beneficial to the AP plant. Sterwerf talked with
Stanford in the spring about bringing some “lean concepts and tools” used in their previous 50
employment to AP, including CATS. And Stanford told Ramirez in the spring that CATS “was a
JD–58–16
55
great tool for employee involvement, employee engagement, and very good, that we should do
something with it, you know, implement it.” Whatever the credibility of this testimony, Ramirez did
not testify that there was a plan to implement CATS in March. There was in fact, no documented
plan or tangible steps taken to use CATS at AP until after the union drive was well under way.
Indeed, as of June 2, Sterwerf was emailing her supervisors who had worked with her at the5
previous job and asking them if “any of you have a blank CATS from Claryville or could you get
me one.” As of June 3, Sterwerf was explaining in an email to her HR management, Aardema
and Chernock, how the CATS system worked and explaining to them that “[i]t was powerful stuff .
. . we did not intend for it to drop grievances but it did because the[ ] team saw they got a quicker
response directly from a manager.” One can look at this record and confidently conclude that the 10
CATS program and the push for it was implemented as an antidote to the union drive.55
But more to the point, the Board precedent regarding solicitation of grievances is different
than that involving the conferral of a discrete benefit, like a wage increase. As discussed above,
with a unilateral conferral of a benefit, the Board looks for evidence of intent that the benefit was 15
introduced to induce employees to oppose the union. Establishing that the benefit was planned
to be implemented before the union appeared can support the contention that the benefit’s intent
had nothing to do with discouraging unionization and would have been implemented in the
absence of union activity. However, the solicitation of grievances with the inference of a promise
to remedy those grievances, is unlawful not for its intent but for the “compelling inference that [the 20
employer] is implicitly promising to correct those inequities he discovers as a result of his inquiries
and likewise urging on his employees that the combined program of inquiry and correction will
make union representation unnecessary.” Reliance Electric Co., 191 NLRB 44, 46 (1971), enfd.
457 F.2d 503 (6th Cir. 1972). So while an employer’s (pre-union drive) past practice of soliciting
grievance meetings may undercut the inference that the employer’s solicitation of grievances 25
during a union drive carries an implicit promise to remedy the problems and make union
representation unnecessary, here there was no past practice at all. The CATS system was
introduced during the union campaign for the first time. The Respondent’s effort to pre-date the
planning for having a CATS system is beside the point.56
30

55I discredit Sterwerf’s self-serving conclusory statements to the contrary. (Tr. 727–728, 738).
56Finally, for reasons that elude me, the Respondent points (R. Br. at 43–44) to its refusal to
even consider CATS grievances with prounion sympathies as evidence that the CATS program
did not interfere with Section 7 rights. To the contrary, one would be hard pressed to find a more
vivid illustration of the antiunion import of the CATs program. Contrary to the effort the
Respondent put into timely answering most CATS complaints, CATS complaints with union
markings went unanswered by the Respondent on the grounds that they were “altered” by the
union and thus “weren’t our forms.” Moreover, when the forms contained a union legend, the
Respondent suddenly found itself powerless to act on the matter. When a “union” CATS
complaint asked for an increase in starting wages, Sterwerf testified that the Employer did not
respond “because as a plant manager, I don’t have the ability to change the wages, the starting
minimum wage anyway.” Obviously, there was going to be no hurried assurance to employees
that “they’re working on it” when a union-affiliated CATS request came in. This was a decidedly
nonunion grievance procedure.
JD–58–16
56
CONCLUSIONS OF LAW
1. The Respondent, AdvancePierre Foods, Inc. is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
5
2. The Respondent violated Section 8(a)(1) of the Act, from on or about May 13, 2015, to on or
about June 10, 2015, by maintaining and enforcing an unlawful and overly broad
solicitation/distribution policy.
3. The Respondent violated Section 8(a)(3) and (1) of the Act, on or about June 9, 2015, by 10
issuing a verbal disciplinary warning to Carmen Cotto, Sonja Guzman, and Ronnie Fox, in
retaliation for their union activities.
4. The Respondent violated Section 8(a)(1) of the Act, on or about June 9, 2015, by
interrogating an employee about the union activity of a coworker. 15
5. The Respondent violated Section 8(a)(1) of the Act, on or about June 8, 2015, by
engaging in surveillance of employees’ union activity by searching their clipboards for
union authorization cards.
20
6. The Respondent violated Section 8(a)(1) of the Act, on or about June 16, 2015, by engaging
in surveillance of employees’ union activity by searching for evidence of their union activity
online and searching suspected union sympathizers’ Facebook pages.
7. The Respondent violated Section 8(a)(1) of the Act, on or about June 17, 2015, by 25
demanding that employee Diana Concepcion document her identity, in retaliation for her
union activity.
8. The Respondent violated Section 8(a)(3) and (1) of the Act, on or about July 17, 2015, by
suspending Diana Concepcion indefinitely for her failure to comply with an unlawfully 30
motivated demand that she document her identity.
9. The Respondent violated Section 8(a)(1) of the Act, on or about July 17, 2015, by assessing
employee Jessenia Maldonado an attendance point for her participation in protected and
concerted activity.35
10. The Respondent violated Section 8(a)(1) of the Act, on or about August 27, 2015, by
instructing employees that their pay is considered personal and confidential and is not to be
shared with other employees.
40
11. The Respondent violated Section 8(a)(1) of the Act, on or about July 20, 2015, and thereafter,
by soliciting grievances and impliedly promising employees increased benefits and improved
terms and condition of employment in order to discourage employees from supporting a
union.
45
12. The unfair labor practices committed by Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
50
JD–58–16
57
REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
5
The Respondent, having verbally warned employees Ronnie Fox and Sonja Guzman,
must rescind the warning.57 The Respondent having unlawfully assessed employee Jessenia
Maldonado with an attendance point, must rescind the attendance point.
The Respondent, having unlawfully suspended Diana Concepcion, must offer her full
reinstatement to her former job, or if that job no longer exists, to an equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed. The Respondent
shall make Concepcion whole for any loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful suspension of her. The make whole remedy shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interested 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 accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014), the Respondent shall compensate Concepcion for the adverse
tax consequences, if any, of receiving lump sum backpay awards, and, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21 days of
the date the amount of backpay is fixed either by agreement or Board order, file with the Regional
Director for Region 9 a report allocating backpay to the appropriate calendar year for each
employee. The Regional Director will then assume responsibility for transmission of the report to
the Social Security Administration at the appropriate time and in the appropriate manner.58

57The record demonstrates that the warning to Cotto was rescinded; I do not consider
Guzman’s warning, which AP maintained it did not give, to have been clearly rescinded.
58The General Counsel contends that Concepcion should be reimbursed for all search-for-
work and work-related expenses regardless of whether she receives interim earnings in excess of
those expenses during any given yearly quarter or during the overall backpay period. As the
General Counsel recognizes, under extant Board law those expenses are considered an offset to
interim earnings. Such a change in Board precedent is a matter for Board consideration. The
Board has yet to resolve the matter. National Association of Professional Women, 364 NLRB No.
19, slip op. at 3 fn. 1 (2016). I must apply extant Board precedent, and on that grounds I reject
the General Counsel’s proposed remedy. Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) ("We
emphasize that it is a judge's duty to apply established Board precedent which the Supreme
Court has not reversed. It is for the Board, not the judge, to determine whether that precedent
should be varied" (citation omitted). Accord, Los Angeles New Hospital, 244 NLRB 960, 962 fn. 4
(1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
The General Counsel additionally seeks a make whole remedy for Concepcion that includes
reasonable consequential damages incurred as a result of the Respondents' unfair labor
practices. In particular, and citing Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137, 152
(2002), the General Counsel contends that consequential damages are necessary to prevent the
possibility of remedial failure, should the Respondent successfully argue in a compliance hearing
that Concepcion is not entitled to a remedy that includes backpay and reinstatement. I find this
argument entirely speculative. It can be raised in a compliance hearing in response to arguments
of the Respondent. In any event, as with the search-for-work expenses, the request for
consequential damages as part of the remedy does not reflect extant law, and as such, is for the
Board to consider. Goodman Logistics, LLC, 363 NLRB No. 177, slip op. at 2–3, fn. 2 (2016).
JD–58–16
58
The Respondent shall also be required to remove from its files any references to the
unlawful suspension of Concepcion, and the unlawful warnings to Cotto, Guzman, and Fox, and
the unlawfully assessed attendance point against Maldonado, and to notify each of them in
writing that this has been done and that the suspension, warning, or attendance point will not be
used against them in any way.5
The Respondent shall be required to rescind its implementation of the unlawfully implemented
CATS grievance program.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted at the Respondent's facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means. In the
event that during the pendency of these proceedings the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since May 13, 2015. When the notice is issued to the Respondent, it
shall sign it or otherwise notify Region 9 of the Board what action it will take with respect to this
decision. As the Respondent has a large number of employees whose primary language is not
English, the Respondent shall be required to post the notice in both English and Spanish, and
any such other languages as the Regional Director determines necessary to fully communicate
with employees.
The General Counsel also seeks (GC Br. at 49) a panoply of “additional remedies beyond
the Board’s standard remedies.” He seeks an order requiring a reading of the notice, the
publication of the notice in publications of general local interest, employer-paid training by Board
agents for employees, supervisors, and managers about their rights under the Act, and an order
that the employer periodically supply the union with employee contact and other information for a
period of two years.
An argument for each of these remedies can be made in the abstract. However, one is
left with the strong feeling that in the context of the Board’s current remedial practices, the
General Counsel’s remedial demands are unwarranted based on the violations found.
While I have found that the Respondent engaged in a number of unfair labor practices, 10
and they are by definition serious, the General Counsel’s characterization of them exceeds their
substance. This is not a case where the severity and scope of the employer’s unfair labor
practices demonstrates that traditional remedies are insufficient to redress the effects of the
Respondent’s unfair labor practices.59
15

59The General Counsel argues that publication of the notice is warranted because at rallies, in
the media and on the radio, the union and employees pressed their case. However, the General
Counsel cites no case in which the necessity for nontraditional remedies turns on the vigor with
which the employees, unions, or their allies, publicize their struggle to the general public.
Remedies should be based on the objective and reasonably likely—not the asserted actual or
subjective—effects of the unfair labor practices being remedied.
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59
Here, the plant-wide violations directly affecting every employee involve the
implementation of the CATS grievance mechanism, the temporary (three to four week)
maintenance of an unlawful solicitation/distribution policy, and the one-time written admonition to
employees that pay rates are confidential and not to be shared. These are, for sure, serious
violations of the Act, but none can be characterized as outrageous, likely to arouse fear, likely to 5
persist after the application of traditional remedies, or otherwise likely to cripple employees’
efforts to engage in organizational activity under the Act.
In addition, there were a number of unfair labor practices directed to individual employees.
In an employee complement of 596 employees, three employees received a verbal warning (one 10
was quickly rescinded), one employee was unlawfully asked about another employees’ union
activity, an employee received an attendance point for striking, there was an unlawfully motivated
“clipboard audit” that affected an unknown number of employees on one day, and, most seriously,
one employee has been suspended and subjected to unlawful scrutiny of her identify.
15
In all, there are a significant number of unfair labor practices. However, the unit is large.
With the exception of the suspension, these unfair labor practices do not constitute “hallmark”
violations. Other than the one suspension, these unfair labor practices do not constitute direct
threats to the pay, benefits, or jobs of employees. There were no threats of plant shutdowns, or
about the futility of unionization. No argument is made that the Respondent has a history of or
proclivity to repeat these unfair labor practices. I do not find that the Respondent’s conduct
rises—or more aptly, sinks—to the level of egregious employer conduct that justifies the
imposition of additional remedies. While the Respondent has engaged in unlawful conduct, these
are not unfair labor practices that one would expect could not be remedied through traditional
remedies. I conclude that under these circumstances, the General Counsel has failed to make its
case that traditional remedies are insufficient to remedy the effects of the unfair labor practices.
See, Perry Brothers Trucking, 364 NLRB No. 10, slip op. at 3 fn. 6 (2016) (denying General
Counsel request that notice be read in case finding unlawful layoff and discharge, two instances
of instructing employees not to discuss terms and conditions of employment, and unlawfully
indicating that it was futile to engage in protected and concerted activity); Checkers and Fast
Food Workers Committee, 363 NLRB No. 173, slip op. at 2 fn. 2 (2016) (denying General
Counsel request that notice be read in case involving two unlawful discharges, threats of
unspecified reprisals, and unlawful decreasing of employees’ hours). See, by contrast, OS
Transport LLC, 358 NLRB 117 (2012), relied upon by the General Counsel for the proposition that
additional remedies may be appropriate when the impact and awareness of the unfair labor
practices is unitwide. However, that case involved many more severe and hallmark violations of
the Act, conducted among a unit of 14 drivers. Here by contrast, the potential unit is nearly 600,
and the violations relatively limited in scope and severity.60

60In support of its remedial argument, the General Counsel also emphasizes the claim that the
“diverse make-up of Respondent’s workforce renders traditional remedies insufficient” (GC Br. at
49) and that traditional remedies will not counter “the degree of chill on employee union activity
engendered by the unlawful utilization of immigration related threats during an initial organizing
campaign.” (GC Br. at 55). In this case there is just one employee (out of nearly 600) for whom
the employer engaged in an unfair labor practice that bears in any way upon immigration status.
There is no evidence that the Respondent has generally targeted immigrants in the workforce, or
used threats or language to stoke immigration-related fears in the workforce. I recognize—
indeed, I agree—that even one unlawful suspension related to immigration issues could inhibit
“even authorized employees [from] exercising their Section 7 rights if it means they might be
questioned about their actual or perceived immigration status” (Farm Fresh Co., Target One,
LLC, 361 NLRB No. 83, slip op. at 1 fn.1 (2014) (noted by Member Schiffer). However, the
JD–58–16
60
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted at the Respondent's facilities wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 5
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Respondent has gone out of business
or closed a facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since May 13, 2015. When the notice is issued to the Respondent, it 10
shall sign it or otherwise notify Region 9 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6115
20
25
___________________________
recognition of this enduring problem does not amount to a showing of the inadequacy of
traditional Board remedies and even less the advantage of the remedies advanced by the
General Counsel. Rather, cases citing the vulnerability of an immigrant workforce as supporting
special remedies treat with egregious employer misconduct. See, e.g., Concrete Form Wall, Inc.,
346 NLRB 831, 839 (2006), cited by the General Counsel, where the Board, in adopting a Gissel
bargaining order and required the reading of the notice—but not its publication—relied in part on
the fact that “[t]he Respondent’s work force is comprised almost entirely of Spanish-speaking
employees with questionable ability to work in the United States legally.” Concrete Form Walls
was a case studded with hallmark violations absent here, including the discharge of nearly 1/4 of
the Hispanic unit employees and nearly 1/6 of the unit employees because they voted in a
representation election. The Board recognized “a marked difference between the type of
interference with the Section 7 right caused by a preelection discharge and that caused by a
discharge resulting directly from an employee's exercise of that right. The former interferes with
the employee's right to make a free electoral choice, while the latter represents a full frontal
assault on the right to vote at all.” The actions of the employer in Concrete Form Wall are of a
different order of magnitude than what we confront here.
61If 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–58–16
61
ORDER
The Respondent AdvancePierre Foods, Inc., Cincinnati, Ohio, its officers, agents,
successors, and assigns, shall5
1. Cease and desist from:
(a) Maintaining and/or enforcing an unlawful and overly broad solicitation/distribution
policy.10
(b) Discriminatorily disciplining employees in retaliation for their union activities.
(c) Interrogating any employee about the union activity of a coworker.
15
(d) Engaging in surveillance of employee union activity by searching clipboards for
union materials.
(e) Engaging in surveillance of employee union activity by searching for employee
union activity online and searching suspected union sympathizers’ Facebook 20
pages.
(f) Discriminatorily demanding documentation of employee identity in retaliation for
union activity, and discriminatorily suspending any employee for failing to satisfy
the unlawful demand.25
(g) Disciplining any employee for an absence caused by participation in a lawful strike.
(h) Instructing employees that their pay rate is considered personal and confidential
and is not to be shared with other employees.30
(i) Soliciting grievances from employees and impliedly promising to remedy them in
order to discourage employees from supporting union organizational activity.
(j) In any like or related manner interfering with, restraining, or coercing employees in 35
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Diana Concepcion full 40
reinstatement to her job, or if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
(b) Make Diana Concepcion whole for any loss of earnings and other benefits suffered 45
as a result of her unlawful suspension, in the manner set forth in the remedy
section of this decision.
(c) Compensate Diana Concepcion for the adverse tax consequences, if any, of
receiving a lump sum backpay award, and file with the Regional Director for 50
Region 9, within 21 days of the date the amount of backpay is fixed either by
JD–58–16
62
agreement or Board order, a report allocating the backpay award to the
appropriate calendar year.
(d) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful suspension given to Diana Concepcion, and within 3 days thereafter, 5
notify her in writing that this has been done and that the suspension will not be
used against her in any way.
(e) Rescind the unlawful disciplinary warnings issued to Sonja Guzman and Ronnie
Fox.10
(f) Rescind the attendance point unlawfully issued to Jessenia Maldonado for her
participation in protected and concerted activities.
(g) Within 14 days from the date of this Order, remove from its files any reference to 15
the unlawful disciplinary warnings given to employees Carmen Cotto, Sonja
Guzman, and Ronnie Fox, and the unlawfully assessed attendance point against
Jessenia Maldonado, and within 3 days thereafter, notify these employees in
writing that this has been done and that the warnings or attendance point will not
be used against them in any way. 20
(h) Rescind the implementation and maintenance of the CATS grievance program.
(i) Within 14 days after service by the Region, post at its facilities in Cincinnati, Ohio,
copies of the attached notice marked "Appendix." 62 Copies of the notice, on forms 25
provided by the Regional Director for Region 9, after being signed by the
Respondent's authorized representative, shall be translated into Spanish, and any
other languages that the Regional Director determines is appropriate, and the
Spanish, other language, and English notices shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places, including all places 30
where notices to employees are customarily posted. In addition to physical
posting of paper notices, notices in each language deemed appropriate shall be
distributed electronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be taken by the 35
Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice in each appropriate language, to all current employees and former 40
employees employed by the Respondent at any time since May 13, 2015.
(j) Within 21 days after service by the Region, file with the Regional Director for
Region 9 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.45

62If 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–58–16
63
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the
Act not specifically found.
5
Dated, Washington, D.C. June 27, 2016
10
David I. Goldman
U.S. Administrative Law Judge15
JD–58–16
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and/or enforce an overly broad solicitation/distribution policy that restricts
you from the exercise of the rights set forth above.
WE WILL NOT discriminatorily issue disciplinary warnings to you in retaliation for your union
activities.
WE WILL NOT interrogate you about the union activity of your coworkers.
WE WILL NOT engage in surveillance of your union activity by searching employee clipboards for
union materials.
WE WILL NOT engage in surveillance of your union activity by searching for evidence of union
activity online and searching suspected union sympathizers’ Facebook pages.
WE WILL NOT discriminatorily demand documentation of your identity in retaliation for union
activity and WE WILL NOT suspend you for failing to satisfy the unlawful demand for
identification.
WE WILL NOT discipline you for an absence caused by participation in a lawful strike.
WE WILL NOT instruct you that your pay rate is considered personal and confidential and should
not be shared with your coworkers.
WE WILL NOT solicit grievances from you and impliedly promise to remedy them in order to
discourage you from organizing a union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
JD–58–16
WE WILL offer Diana Concepcion full reinstatement to her job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Diana Concepcion whole, with interest, for any loss of earnings or other benefits
suffered as a result of her unlawful suspension.
WE WILL remove from our files any reference to the unlawful suspension given to Diana
Concepcion, and WE WILL within 3 days thereafter notify Diana Concepcion that this has been
done and that her unlawful suspension will not be used against her in any way.
WE WILL rescind the unlawful disciplinary warnings issued to Sonja Guzman and Ronnie Fox.
WE WILL rescind the attendance point unlawfully issued to Jessenia Maldonado for her
participation in protected and concerted activities.
WE WILL rescind the implementation and maintenance of the CATS grievance program.
WE WILL remove from our files any reference to the unlawful warnings given to Carmen Cotto,
Sonja Guzman, and Ronnie Fox, and to the unlawful attendance point given to Jessenia
Maldonado, and WE WILL within 3 days thereafter notify Carmen Cotto, Sonja Guzman, Ronnie
Fox, and Jessenia Maldonado, in writing that this has been done and that their warnings and/or
attendance point will not be used against them in any way.
ADVANCEPIERRE FOODS, INC.
(Employer)
Dated By
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.
550 Main Street, Federal Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
JD–58–16
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-153966 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, (513) 684-3750.