Alle Processing Corp. d/b/a Meal Mart

National Labor Relations Board - Board Decisions

Apr 2, 2020

369 N.L.R.B. 52 (N.L.R.B. 2020)

369 NLRB No. 52
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Alle Processing Corp. d/b/a Meal Mart and Traverse
Joel Wilson. Case 29–CA–213963
April 2, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On June 19, 2019, Administrative Law Judge Lauren
Esposito issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the judge’s recom-
mended Order as modified and set forth in full below.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 1.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings. In addition, some of the Respondent’s exceptions
implied that the judge’s rulings, findings, and conclusions demonstrate
bias and prejudice. On careful examination of the judge’s decision and
the entire record, we are satisfied that the Respondent’s contentions are
without merit.
We agree with the judge that Charging Party Traverse Joel Wilson
engaged in protected union activity by refusing to sign the dues-checkoff
form. Keller Mfg. Co., 237 NLRB 712, 717 (1978), enfd. mem. in part
622 F.2d 592 (7th Cir. 1980); Penn Cork & Closures, Inc., 156 NLRB
411, 414–415 (1965), enfd. 376 F.2d 52 (2d Cir. 1967), cert. denied 389
U.S. 843 (1967); see also Bluegrass Satellite, Inc., 349 NLRB 866, 867
(2007) (“[T]he Board has long held that employees have a Section 7 right
to refuse to sign a checkoff authorization.”) (citing cases). We find it
unnecessary to pass on her finding that Wilson also engaged in protected
concerted activity because such finding would not materially affect the
remedy.
In evaluating Wilson’s predischarge outburst under Atlantic Steel, 245
NLRB 814 (1979), we agree with the judge that Wilson’s comment, “I
will fix this on the street,” is too vague to constitute a threat and, there-
fore, does not weigh against Wilson retaining the protection of the Act.
Kiewit Power Constructors Co., 355 NLRB 708, 710 (2010), enfd. 652
F.3d 22 (D.C. Cir. 2011). In doing so, we find it unnecessary to rely on
the judge’s interpretation of Wilson’s comment as an indication that he
planned to obtain outside assistance.
Further, although we do not condone the profane gesture Wilson made
or his casual use of profanity during the January 30, 2018 meeting, we
“1. The Respondent violated Section 8(a)(3) and (1) of
the Act on January 30, 2018, by discharging employee
Traverse Joel Wilson because of his union activity.”
ORDER
The National Labor Relations Board orders that the Re-
spondent, Alle Processing Corp. d/b/a Meal Mart,
Maspeth, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of their union activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Traverse Joel Wilson full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Wilson whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of the decision.
find that this conduct does not weigh against Wilson retaining the pro-
tection of the Act. We emphasize the judge’s findings that the Respond-
ent’s managers coerced Wilson into signing a dues-checkoff form, which
Wilson was legally entitled not to sign, that the Respondent had no rule
against profanity, and that the Respondent tolerated profanity among em-
ployees, even when directed at supervisors. See Nexteer Automotive
Corp., 368 NLRB No. 47, slip op. at 1 fn. 2 (2019). In reaching this con-
clusion, we find it unnecessary to rely on Plaza Auto Center, Inc., 360
NLRB 972 (2014).
We also agree with the judge that Wilson’s postdischarge conduct was
not so flagrant as to render him unfit for further service and therefore did
not cause him to forfeit his right to the Board’s standard reinstatement
and backpay remedies. In so finding, we do not rely on the judge’s de-
termination that Wilson’s conduct of grabbing a coffee carousel was not
a “deliberate or premediated” attempt to intimidate the Respondent’s of-
ficials because this conclusion does not reflect the Board’s standard for
evaluating postdischarge misconduct. See Hawaii Tribune-Herald, 356
NLRB 661, 662 (2011) (holding that relief from standard remedies is
only available when employer proves postdischarge misconduct that is
“so flagrant as to render the employee unfit for further service” or that
constitutes “a threat to efficiency in the plant”).
2 In affirming the judge’s unfair labor practice findings, we do not
rely on her citations to Alcoa, Inc., 352 NLRB 1222 (2008), and Comau,
Inc., 358 NLRB 593 (2012), which were issued by panels subsequently
found invalid by the Supreme Court in New Process Steel, L.P. v. NLRB,
560 U.S. 674 (2010), and NLRB v. Noel Canning, 573 U.S. 513 (2014),
respectively.
3 We have amended the judge’s conclusions of law to conform to her
unfair labor practice finding and modified her recommended Order to
conform to the Board’s standard remedial language. We shall substitute
a new notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(c) Compensate Wilson for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 29, within
21 days of the of the date that the amount of backpay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay award to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and,
within 3 days thereafter, notify the employee in writing
that this has been done and that the discharge will not be
used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its Maspeth, New York facility copies of the attached no-
tice marked “Appendix” in English and Spanish.4 Copies
of the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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 January 30, 2018.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. April 2, 2020
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge or otherwise discriminate
against any of you because of your union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Traverse Joel Wilson full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Traverse Joel Wilson whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest, and WE
WILL also make him whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Traverse Joel Wilson for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ALLE PROCESSING CORP. D/B/A MEAL MART 3
Director for Region 29, within 21 days of the of the date
that the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Traverse Joel Wilson, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
ALLE PROCESSING CORP. D/B/A MEAL MART
The Board’s decision can be found at
https://www.nlrb.gov/case/29-CA-213963 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
Brent Childerhose, Esq., for the General Counsel.
Jeffrey A. Meyer, Esq. (Nixon Peabody LLP),
of Jericho, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. This case was
tried in Brooklyn, New York, on March 26, 2019. Traverse Joel
Wilson (Wilson) filed a charge on January 31, 2018, amended
on March 9 and April 25, 2018, alleging that Alle Processing
Corp. d/b/a Meal Mart (Alle or Respondent) violated Section
8(a)(3) and (1) of the Act by discharging him at the behest of a
labor union for refraining from becoming a member of the union
and/or for declining to sign a dues-checkoff authorization.
The consolidated complaint in this matter issued on January
24, 2019, and the Regional Director for Region 29, issued an er-
ratum on February 8, 2019. The consolidated complaint initially
included allegations that Alle provided unlawful assistance and
support to International Union of Journeymen & Allied Trades,
Local 726 (Local 726 or the Union) by recognizing and entering
into a collective bargaining agreement with Local 726 at a time
when Local 726 did not represent an uncoerced majority of the
bargaining unit employees, in violation of Section 8(a)(2) and
(1). The consolidated complaint further alleged that Alle de-
ducted dues from employees’ weekly pay and required that
employees maintain membership in Local 726, in violation of
Section 8(a)(2) and (1). Alle filed an answer on February 6,
2019, denying the Consolidated Complaint’s material allega-
tions. These allegations were resolved by the parties in an Infor-
mal Settlement Agreement reached prior to the opening of the
hearing. (GC Exh. 3.) As part of the Informal Settlement Agree-
ment, General Counsel and Alle withdrew the allegations of the
Consolidated Complaint and Answer, respectively, related to the
issues of unlawful assistance as described above. (GC Exh. 3.)
In addition, the consolidated complaint initially contained al-
legations against Local 726 based upon a charge filed in Case
29–CB–216248 filed by Wilson on March 9, 2018, and amended
on April 25, 2018. The consolidated complaint alleged that Lo-
cal 726 violated Section 8(b)(1)(A) by entering into a collective
bargaining agreement with Alle at a time when the Union did not
represent an uncoerced majority of the bargaining unit employ-
ees, and violated Sections 8(b)(1)(A) and (2) by accepting recog-
nition from Alle and causing Alle to maintain an unlawful union
security provision. The charge against Local 726 was also re-
solved between the parties prior to the opening of the hearing in
an informal settlement agreement. (GC Exh. 2.) As part of the
informal settlement agreement, General Counsel withdrew the
allegations of the consolidated complaint related to the violations
of Sections 8(b)(1)(A) and (2) of the Act, and Local 726 with-
drew its Answer. (GC Exh. 2.)
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
General Counsel and Alle, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits in its answer and I find that at all material
times it has been a domestic corporation with a principal place
of business and office located at 56–20 59th Street, Maspeth,
New York, and has been engaged in the manufacture and pack-
aging of kosher food products for hospitals and stores. Respond-
ent admits and I find that annually in the conduct of its business
operations Alle sold and shipped from its Maspeth facility goods
valued in excess of $50,000 directly to customers located outside
of New York State. Based on the foregoing admissions, I find
that at all material times Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(5) of the
Act.
Ivan Talavera testified at the hearing that he is Alle’s Produc-
tion Manager and Plant Manager. (Tr. 15.) Moshe Ginsberg,
who also testified at the hearing, handles Alle’s Human Re-
sources, including payroll. (Tr. 103.) Mamodou Diallo, also
called by Alle, is the Director of Housekeeping at the Maspeth
facility. (Tr. 142.) Charging Party Traverse Joel Wilson also
testified at the hearing.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As admitted in its Answer, Alle manufactures and packages
kosher food products for hospitals and stores at its Maspeth fa-
cility. (Tr. 17.) Alle employs between 350 and 400 employees
at its Maspeth facility, in production, warehouse, shipping, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
receiving departments. (Tr. 17–18.) The facility consists of
three buildings—the production building, the freezer/refrigerator
building, and the dry goods building. (Tr. 25.) About 30 to 40
employees work in the warehouse department, which is located
in the freezer building, on two shifts. (Tr. 18–19, 25.) The ware-
house employees are the only employees that work in the freezer
building. (Tr. 26.) There is one parking lot adjacent to both the
freezer building and the production building. (Tr. 25.)
At the time of his discharge on January 30, 2018, Charging
Party Traverse Joel Wilson had been employed by Alle for al-
most 10 years as a stock worker on the 6 p.m. to 2 a.m. shift. (Tr.
40–41.) The stock workers receive orders for product, place the
requested items on a pallet, skin and pack them, and load the
product on a truck for delivery the following morning. Tr. 41.
About 20 employees worked on the 6 p.m. to 2 a.m. shift in the
Annex or warehouse department, supervised by Jacob Gottlieb
and Chaim Meir Rosenberg (also referred to as Amaya). (Tr.
41.) Wilson testified without contradiction that he was never
disciplined during his 10 years of employment with Alle. (Tr.
102.) Wilson testified that Gottlieb and Rosenberg told him that
he was the best worker on the crew, and testified that he received
raises which more than doubled his hourly rate over his 10-year
period of employment.1 (Tr. 64, 67.)
Wilson had engaged in protected concerted and union activi-
ties long before the series of events which ultimately culminated
in his discharge. Wilson testified without contradiction that in
approximately 2015 he met with his co-workers in the warehouse
department and prepared a statement requesting a wage increase,
because the warehouse employees believed that they were not
being paid fairly for the work that they were performing. (Tr.
42.) Wilson and a group of his co-workers then went together to
Talavera’s office, where Wilson read the prepared statement and
informed Talavera that the employees were prepared to go on
strike. (Tr. 42–43.) Talavera told them there was no need to go
on strike, and a week or two later the warehouse employees re-
ceived pay raises, new equipment, and new uniforms. (Tr. 43.)
Wilson also participated in an organizing campaign on behalf of
Local 342, UFCW, in approximately 2010, attempting to con-
vince his coworkers to vote for the union in an election which
Local 342 ultimately lost. (Tr. 43. ) During the summer of 2017,
Wilson also took authorization cards from union representatives
trying to speak to Alle employees in the parking lot. (Tr. 43–
44.) Wilson spoke to these union representatives twice and dis-
tributed the cards to his co-workers, but his co-workers never
returned them. (Tr. 44–45.)
Wilson was an outspoken opponent of Local 726 when it be-
gan its activities at Alle in late 2017. Wilson testified that in
December 2017, an employee named Apple approached him and
his co-workers on the loading dock carrying a clipboard contain-
ing a paper with names, signatures and dates. (Tr. 45–46.) Ap-
ple told Wilson that the paper was for the union that was going
to represent the employees and said that the employees would
get a 30 or 3-cent raise to cover the union dues which would be
deducted from their paychecks. (Tr. 45–46.) Wilson told Apple
1 Gottlieb and Rosenberg did not testify at the hearing.
2 Talavera confirmed that this meeting took place and testified that
the purpose of the meeting was for the Local 726 representatives to
that that the employees were not signing and wanted to see a
contract and additional information first. (Tr. 46.) Only one em-
ployee signed the paper at that time. (Tr. 46.) Apple tried to
convince Wilson to sign the same paper a few more times, but
Wilson refused to do so, asking whether he would get a raise.
Tr. 46–47. Wilson testified that he discussed the Local 726 issue
with about 10 to 12 of his co-workers every day. (Tr. 47.)
Towards the end of December 2017, the 20 warehouse depart-
ment employees on Wilson’s shift attended a meeting with Tala-
vera, Rosenberg, Gottlieb, and two representatives of Local
726.2 (Tr. 47.) The Local 726 representatives introduced them-
selves, told the employees that they were going to represent
them, and described the benefits and pay raises the employees
would receive. (Tr. 47–48.) The employees began asking ques-
tions regarding the contract, with Wilson asking about health in-
surance and raises. (Tr. 48.) The Local 726 representatives
stated that nothing could be done with respect to these issues in
the Union’s first deal with Alle, because the Union had to “put
in some time with the company.” (Tr. 48.) The employees re-
peatedly asked for a copy of the contract, and the Local 726 rep-
resentatives stated that they did not have it with them and would
get back to the employees later. (Tr. 48–49.) The Local 726
representatives had union authorization cards with them at the
meeting but did not distribute them. (Tr. 49–50.) After the Un-
ion representatives were gone, Talavera told the employees, “I
shouldn’t be telling you guys this but this is a good deal. During
my past experience, I’ve seen companies go out of business or
close down because they can’t afford a union.” (Tr. 49.) Wilson
testified that after this meeting, he and his co-workers in the
warehouse department discussed Local 726 on a daily basis, and
decided that they would not sign anything pertaining to the Un-
ion because they saw no benefit to doing so. (Tr. 49–50, 68–69.)
It is undisputed that on January 1, 2018, Alle and Local 726
entered into a collective bargaining agreement recognizing Local
726 as the exclusive collective-bargaining representative of em-
ployees in the following bargaining unit:
All full-time and regular part-time employees in the following
departments: Meat, poultry, Deli Slicing, Freezer/Shipping,
Production, Smokehouse, Mixers, Drivers, Housekeeping,
Maintenance, Dishout Packing, Retort Production, R&D, Se-
curity and Warehouse; however, excluding all managers, con-
fidential employees, office clericals, casual employees, profes-
sional employees, technical employees, guards and supervisors
as defined by the National Labor Relations Act.
See also (R.S. Exh. 2, 3; Tr. 35.) This contract contains a union-
security clause requiring that the bargaining unit employees be-
come and remain members in good standing of Local 726, and
requiring that, upon notice from the Union, Alle discharge any
bargaining unit employee who has failed to remit dues and initi-
ation fees. (R.S. Exh. 2, 4; Tr. 35.) The collective bargaining
agreement was executed for Alle by Edwin Weinstock, its Chief
Executive Officer. (R.S. Exh. 2, 19; Tr. 116–117.)
Thereafter, Local 726 representatives came to visit the facility
“explain” to the employees “that they were representing them.” Tr. 38.
However, he stated that he “went in and out,” and did not describe the
meeting in any detail. Tr. 38.
ALLE PROCESSING CORP. D/B/A MEAL MART 5
and meet with the employees on Tuesdays. (Tr. 50.) Talavera
testified that the purpose of these meetings was for the employ-
ees to sign dues deduction authorization forms for Local 726.
(Tr. 38.) Wilson testified that when he arrived at work on Janu-
ary 9, 2018, Chaim Rosenberg told him that a union representa-
tive wanted to speak to him, and he was directed to an office
about 10 feet from Talavera’s. (Tr. 50–51.) There were two Lo-
cal 726 representatives in the office, who asked Wilson if he was
going to sign the paper. (Tr. 50–51.) Wilson asked what benefits
the contract would have, and the Union representatives said that
they could not do anything in their first deal. (Tr. 53.) Wilson
refused to sign the paper, and returned to work. (Tr. 51, 53).
Wilson testified that he missed work the next Tuesday, and when
he returned to Alle the next day his co-workers told him that they
had signed the papers for the Union. (Tr. 51–52.)
Talavera testified that supervisors were provided with forms
for Alle employees to sign authorizing the deduction of Local
726 dues from their paychecks and directed to give the forms to
employees. (Tr. 36.) Talavera testified that he brought employ-
ees that refused to sign dues-checkoff authorizations into his of-
fice and explained that the employees needed to sign them. (Tr.
36.) Talavera testified that he had individual meetings with two
employees—Lincoln Gashetti and Andrew Wagner—both of
whom signed the dues-checkoff authorization form as a result.
(Tr. 37.) Talavera testified that by the end of January 2018, Wil-
son was the only employee that was not having dues deducted
from his paycheck and remitted to Local 726. (Tr. 39.)
On or about January 25, 2018, Kevin Barry of Local 726 sent
a letter to Moshe Ginsberg entitled “Enforcement of Union Se-
curity Clause Regarding Traverse Wilson.” (R.S. Exh. 1; Tr.
105-–06.) This letter notified Alle that Wilson had failed to pay
dues and initiation fees as required by the Union and stated that
in such a situation Alle was required pursuant to the collective
bargaining agreement to terminate Wilson’s employment within
15 days. (R.S. Exh. 1.) The letter contended that Local 726 had
met with Wilson “multiple times to seek . . . enrollment in the
Union,” but Wilson had “failed to comply.” (R.S. Exh 1.) The
letter stated that Local 726 was willing to meet with Wilson and
Alle again “if there is any chance of avoiding the consequences
of [Wilson’s] actions and security compliance with our collec-
tive bargaining agreement.” (R.S. Exh. 1.)
Ginsberg testified that after receiving the Union’s January 25,
2018 letter he called Local 726 and “told them that I really didn’t
want to get involved with get[ting] anyone to pay dues.” (Tr.
106.) Ginsberg testified that the Union responded that they in-
tended to enforce the union security provision of the collective
bargaining agreement. (Tr. 106–107.) Ginsberg testified that he
therefore “made it my business to meet with” Wilson and explain
that he was required to pay dues to Local 726 under the collective
bargaining agreement. (Tr. 107.)
3 This statement does not appear in Wilson’s affidavit prepared during
the investigation of the charge. Tr. 71. Rosenberg did not testify at the
hearing.
4 In his affidavit prepared during the investigation of the charge, Wil-
son stated that Talavera told him during this meeting, “You no longer
work for the company; you’re dismissed.” Tr. 73. Wilson testified that
he was not sure whether Talavera meant by that statement that Wilson
was discharged, because on many occasions Talavera had told him that
B. The Events of January 30, 2018
On January 30, 2018, Ginsberg and Talavera had a series of
meetings with Wilson regarding his refusal to sign a dues-
checkoff authorization for Local 726. Director of Housekeeping
Mamodou Diallo was also present for a part of the discussions.
All four testified regarding the events of that day.
Wilson testified that he arrived at work at his customary time
on January 30, 2018 and changed into his uniform. (Tr. 54.)
While he was waiting on the loading dock to begin work, his
supervisor, Chaim Rosenberg, told him that Talavera wanted to
speak with him in Talavera’s office. (Tr. 54.) Wilson testified
that while Rosenberg escorted him to Talavera’s office, he told
Rosenberg that there was no benefit to him in joining Local 726,
and asked Rosenberg if he could increase his pay. (Tr. 70-71.)
According to Wilson, Rosenberg responded, “this is over my
head; I can’t do nothing for you.”3 (Tr. 54.)
Talavera testified that his office, which he shares with plant
manager Ralph Freedman, is on the first floor of the production
building. (Tr. 27.) Wilson testified that the office is approxi-
mately 12 feet by 12 feet square. (Tr. 87.) The office has a door
and contains two desks facing one another, one used by Talavera
and one used by Freedman. (Tr. 27, 29, 87.) Talavera testified
that he generally does not interact directly with warehouse em-
ployees, only other managers. (Tr. 26.) Talavera testified that
warehouse employees visit his office two or three times a week
to discuss work-related issues such as hours and vacations, but
also stated that warehouse employees request vacation time from
their direct supervisors. (Tr. 28–29.) Talavera also testified that
he issues discipline to employees in his office. (Tr. 30.) Wilson
testified that he visited Talavera in his office approximately once
each year. (Tr. 55.)
Wilson testified that when he and Rosenberg arrived at the of-
fice, Talavera was alone sitting behind his desk. (Tr. 55.) Tala-
vera began the meeting by stating that he needed Wilson to sign
a paper for Local 726 containing a dues-checkoff authorization.
(Tr. 55.) Wilson responded that the paper, “has no benefits to-
wards me whatsoever; why would I sign it?” (Tr. 55.) After
some additional discussion along these lines, Talavera told Wil-
son he was “dismissed.” (Tr. 55.) Wilson asked, “Does that
mean I’m fired?” (Tr. 55.) Talavera responded, “No, you’re dis-
missed.”4 (Tr. 55.) Wilson then returned to his workstation on
the loading dock. (Tr. 55–56.) Wilson testified that he and Ta-
lavera may have raised their voices during this meeting, but there
was no shouting during their conversation.5 (Tr. 55–56.)
Wilson testified that he called Lincoln Gashetti while walking
through the parking lot on the way back to his workstation. (Tr.
56.) He described his conversation with Talavera, and, accord-
ing to Wilson, Gashetti described a similar meeting with Tala-
vera.6 (Tr. 56.) According to Wilson, Gashetti stated that he told
he was “dismissed” when sending Wilson home for the remainder of that
particular day. Tr. 72–73.
5 Talavera contended during his testimony that his only meeting with
Wilson on the day of his discharge was the meeting with Ginsberg and
Diallo also present, discussed infra. Tr. 132.
6 Gashetti did not testify at the hearing, but Talavera testified that he
met individually with Gashetti regarding Gashetti’s executing a dues
checkoff authorization, as discussed previously. Tr. 37.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Talavera he needed a day to consider whether or not to sign the
dues-checkoff authorization, and Talavera sent him home. (Tr.
56.)
Wilson testified that after he returned to the loading dock,
Rosenberg approached him to escort him back to Talavera’s of-
fice, telling Wilson that someone else wanted to speak to him.
Tr. 56. When Rosenberg and Wilson returned to Talavera’s of-
fice, Moshe Ginsberg was also present. (Tr. 56–57.) Talavera
was seated behind his desk, while Ginsberg, Rosenberg and Wil-
son remained standing. (Tr. 57.) Wilson testified that he had
never met Ginsberg before. (Tr. 57.)
Wilson testified that Ginsberg began the meeting by telling
him, “I’ve heard great things about you. You’ve been working
here 10 years and we would like to keep you another 10.” (Tr.
57.) Ginsberg then told Wilson that he needed to sign the agree-
ment to pay dues to Local 726. (Tr. 57, 77–78.) Wilson re-
sponded that there were no benefits whatsoever for him in the
contract, so he was not going to sign it. (Tr. 57.) Ginsberg stated
that the arrangement he had with Local 726 obligated the entire
company to sign. (Tr. 57.) Wilson asked Ginsberg whether he
could increase Wilson’s pay or do anything else for him before
he signed, and Ginsberg said that he could not bargain with Wil-
son directly because of his contract obligations with the Union.
(Tr. 74–76.) According to Wilson, Ginsberg and Talavera told
him repeatedly that he had to sign or he was dismissed. (Tr. 57–
58.) Wilson asked them whether “dismissed” meant that he was
fired, stating “If I’m fired, you tell me I’m fired.” (Tr. 58.) Wil-
son testified that Ginsberg and Talavera continued to use the
word “dismissed,” so he left the office to calm down.7 (Tr. 58.)
Wilson testified that there was screaming and shouting at this
meeting. (Tr. 57.)
After leaving Talavera’s office, Wilson went outside, and in
the area between the parking lot and the loading dock he called
an attorney to try to obtain advice about the situation before he
returned to the office. (Tr. 58.) Wilson testified that based upon
his understanding that the other warehouse employees had
signed the forms and his belief that Gashetti was going to sign as
well, he had no choice but to do the same. (Tr. 58.)
Wilson then returned to Talavera’s office; Diallo was now
present as well, and everyone was standing. (Tr. 58–59.) Wilson
testified that he was behind both of the desks in the office, and
the three managers were on the other side. (Tr. 60.) Wilson tes-
tified that he said, “You got me, I’m going to sign it,” and Gins-
berg thanked him and handed him the dues-checkoff authoriza-
tion form. (Tr. 59.) Wilson said to Ginsberg, “Do you know that
you’re forcing me to do something I do not want to do?” Gins-
berg responded, “Yes, I know.” (Tr. 59.) Wilson testified that he
signed the form, and after he did so Ginsberg said, “Welcome,
glad to have you,” and reached out to shake his hand.8 (Tr. 59.)
Wilson testified that he believed that Ginsberg was mocking him
by doing so, so he raised his middle finger to Ginsberg. Tr. 59,
85. Ginsberg stated, “Now I have a reason to fire you;
7 Ginsberg testified that he could not recall what, if anything, Tala-
vera said during this meeting. Tr. 110.
8 Ginsberg testified that he did not remember offering his hand to Wil-
son at the meeting. Tr. 125. Talavera also could not recall whether Gins-
berg offered his hand to Wilson. Tr. 138.
insubordination.” (Tr. 59–60, 89.) Wilson said that Ginsberg
then ripped up the paper that he had signed. (Tr. 59–60.) Wilson
told Ginsberg, “don’t be in your feelings now,” or not to take
offense at the gesture, because Ginsberg was aware that Wilson
was upset about having been required to sign the paper. (Tr. 59,
85–86.) Wilson stated that he had signed the paper and was
ready to work. (Tr. 85–86, 89.) Ginsberg stated that he had
never been disrespected like that in his life. (Tr. 62, 85.) Gins-
berg told Wilson that Wilson was fired.9 (Tr. 90–91.) Wilson
then stated to the managers, “Fuck all y’all. Y’all think I need
this job?” (Tr. 60.) Wilson paced around for a few seconds,
went to grab the door and paused; then he left the office. (Tr.
60.) Wilson said that the managers “jumped” or “twitched”
when he grabbed the door to leave. (Tr. 91–92.) Wilson testified
that he and Ginsberg shouted and used profanity, with Ginsburg
telling him “fuck you” two or three times toward the end of the
meeting. (Tr. 63, 85, 99.) Wilson testified that the meeting did
not “get physical” in any way. (Tr. 62.)
Moshe Ginsberg also testified regarding the meeting with
Wilson, Talavera, and Diallo. As discussed above, Ginsberg tes-
tified that he had “made it my business” to arrange the meeting
after receiving the letter from Local 726 stating that the Union
intended to enforce the union security provisions of the collec-
tive bargaining agreement with respect to Wilson. (Tr. 106-107;
R.S. Exh. 1.) Ginsberg testified that when he entered Talavera’s
office, Talavera and Diallo were sitting, and Talavera asked Di-
allo to stay. (Tr. 107.)
Ginsberg testified that when Wilson arrived, he told Wilson
that he had received a request from the Union that Wilson pay
dues, and asked him to sign a form the Union had provided,
which contained areas for Wilson’s signature authorizing Alle to
deduct dues, for the welfare fund, and for a life insurance policy
being offered. (Tr. 108.) According to Ginsberg, Wilson said
that he didn’t get anything out of it and asked to be given a reason
to sign the form, specifically mentioning a raise. (Tr. 108.)
Ginsberg responded that he had negotiated the contract with the
Union on behalf of the employees; the contract was settled and
the Union was just trying to collect dues. (Tr. 109.) Ginsberg
asked whether Wilson wanted additional vacation time, attempt-
ing to offer a humorous example of the sort of benefit that he was
unable to actually grant. (Tr. 108, 121–122.) Ginsberg stated
that he was not there to bargain or negotiate with Wilson. (Tr.
109.) Wilson then turned to Diallo and said that he was not upset
with him. (Tr. 109.) Wilson said, “I know how to get what I
want. If I get what I want then we can talk.” (Tr. 109.) Ginsberg
stated again that the company was not in a position to negotiate
because all of the employees were covered by the same agree-
ment. (Tr. 109–111.) Ginsberg testified that Wilson became
more agitated during the discussion. (Tr. 109.) Ginsberg then
told Wilson that if he did not sign the dues-checkoff authoriza-
tion, the Union was going to enforce the union security clause
and request that Wilson be discharged. (Tr. 111.)
9 This statement does not appear in Wilson’s affidavit provided during
the investigation, and Wilson did not testify on direct examination that
Ginsberg explicitly told him that he was fired during this meeting. Tr.
90-91.
ALLE PROCESSING CORP. D/B/A MEAL MART 7
Ginsberg testified that Wilson stated, “I’m a streets guy, I
know how to get what I want, and…I have my ways of getting
what I want.” (Tr. 111.) Ginsberg testified that this “didn’t faze
me much.” (Tr. 111.) According to Ginsberg, Wilson then said
that Ginsberg was “a motherfucker” and didn’t understand him.
(Tr. 112.) Wilson stated, “none of this is my problem…You
made a contract that’s nothing to do with me,” and “I don’t have
to sign this…I could do this my way.” (Tr. 112.) Ginsberg tes-
tified that Wilson said several times, “you and me, we can take
this on the street, I can find this on the streets, I know how to get
to you.” (Tr. 112.) Ginsberg testified that he “brushed that off.”
(Tr. 112.) Ginsberg testified that after some further discussion,
Wilson decided that he would sign the dues-checkoff authoriza-
tion. (Tr. 113.) Ginsberg testified that he told Wilson, “That’s a
good idea, sign it,” and Wilson raised his middle finger. (Tr.
113.) Ginsberg stated, “you’re only giving me reasons to fire
you,” and “that doesn’t help anything.” (Tr. 113.) Ginsberg tes-
tified that prior to this point the room was quiet, but then Wilson
lost his temper and the conflict escalated. (Tr. 119.) Wilson re-
sponded, “I can get to you whenever I want . . .whenever I want
I can find you…this is how I work, I’m a streets guy.”10 (Tr.
113.) Wilson stated, “Eventually you have to leave this place,
so I’ll get you then.” (Tr. 113.) Ginsberg testified that at this
point Wilson was screaming and yelling. (Tr. 113.)
Ginsberg testified that at that point, Wilson “grabbed” a small
stand or carousel containing “K-cups,” or individual servings of
coffee for use in a coffee machine, which sat on top of the coffee
machine in the office. (Tr. 113–114, 123, 139–140.) This stand
is approximately 8 inches tall and holds about 25 small plastic
cups containing individual servings of ground coffee and milk.
(Tr. 123). Ginsberg testified that Wilson grabbed the stand and
lifted it up, and Talavera grabbed Wilson’s hand.11 (Tr. 124.)
Ginsberg testified that Wilson “was in the middle of throwing”
the coffee stand and also testified that Wilson was “planning on
throwing it,” when Talavera grabbed his hand. (Tr. 124.) Tala-
vera and Diallo also placed themselves between Ginsberg and
Wilson. (Tr. 113–114, 124.) Wilson said to Talavera, “don’t
touch me,” and Talavera let him go. (Tr. 114.) Talavera told
Wilson several times to punch out, get out, and go home. (Tr.
114.) Wilson began yelling and screaming, saying “this is my
job, and you can’t fire me over this,” or something similar. (Tr.
114.) Wilson then left. Ginsberg testified that Wilson was about
4 feet away from him during the meeting. (Tr. 127.)
Talavera also testified that Ginsberg began the meeting by
telling Wilson that he had to sign the dues-checkoff authorization
because of the letter that Ginsberg had received from Local 726.
(Tr. 132–133.) Wilson said that he did not want to sign, because
he hadn’t seen any contract, and asked how signing would ben-
efit him. (Tr. 133.) Ginsberg responded that there was a contract
that the company had to follow, and that the entire issue had
nothing to do with Wilson personally. (Tr. 135.) Talavera testi-
fied that his memory of the rest of the conversation was less than
specific. (Tr. 135.) However, Talavera testified that Wilson said
that he would sign the paper. (Tr. 135.) After he did so,
10 Wilson denied making any such statement to Ginsberg during his
testimony. Tr. 96–97.
Ginsberg said, “thank you very much,” and “It’s a smart decision
that you’re making.” (Tr. 135, 138.) Wilson then “flipped the
finger” to Ginsberg. (Tr. 135–136.) Ginsberg stated that Wilson
had “crossed the line,” with behavior that was “insubordination
and disrespectful, and he was being terminated.” (Tr. 136, 138–
139.)
Talavera testified that Wilson then grabbed the small carousel
containing “K-cups” for use in the coffee machine. (Tr. 139–
140.) Talavera testified that the carousel was about 1 ½ feet tall.
(Tr. 140.) Talavera placed one of his hands over Wilson’s hand
that was holding the carousel. (Tr. 140-–41.) Wilson told Tala-
vera “don’t touch me,” so Talavera removed his hand and Wilson
then left the office. (Tr. 141.)
Diallo testified that on January 30, 2018, he was discussing a
cleaning task with Talavera in his office when Ginsberg and Wil-
son arrived. (Tr. 144.) Diallo began to leave, but Talavera asked
him to stay, so he stood in a corner of the office during the ensu-
ing discussion. (Tr. 144.) Diallo also testified that Ginsberg be-
gan the meeting by directing Wilson to sign a document, and
Wilson refused. (Tr. 144.) Diallo also stated that Wilson said
that the document did not benefit him, and Ginsberg responded
that that was not his concern, because he was required to comply.
(Tr. 145.) Diallo stated that Wilson said that as a leader and as
an individual employee he would not sign a paper that did not
benefit him. (Tr. 145.) Diallo testified that Ginsberg “reminded
him what kind of leadership he has in the company,” and Wilson
continued to discuss why he and his co-workers did not want to
sign the document, stating that his coworkers had signed “behind
his back.” (Tr. 145.) Ginsberg told Wilson not to “go off topic,”
but “Just sign,” which would “make everything easier.” (Tr.
145.) Diallo stated that at one point Wilson “showed sign that
he was about to sign,” but then “turn[ed] around and g[a]ve a
finger to” Ginsberg. (Tr. 146.) Ginsberg then stated, “listen,
now you cross a line,” “if you go that way, I will fire you.” (Tr.
146.) According to Diallo, Ginsberg took the document and
asked “what can you do for me for me to sign…because I am
from the street. And life is kind of—it’s hard. But you got to
show me something.” (Tr. 146–147.) Ginsberg again stated,
“this is not a negotiation. I’m not here for representing the union.
I’m representing the company.” (Tr. 147.) Ginsberg stated that
if Wilson wanted to discuss another issue with him, “my office
is any time it’s open for you.” (Tr. 147, 151–152.) Diallo testi-
fied that at that point Wilson looked at him and said, “you’re my
brother,” “I wouldn’t say nothing to you, but I will fix this on the
street.” (Tr. 147.) Ginsberg responded, “Now you’re threaten-
ing me,” “now you’re really fired,” and Talavera told Wilson to
punch out and go home. (Tr. 147.) Diallo testified that Wilson
used the word “fucking” repeatedly during the conversation, but
Ginsberg and Talavera did not use any profanity. (Tr. 148–149.)
Diallo testified that as Wilson was leaving the office he
grabbed the coffee carousel, and Diallo and Talavera stepped in
between Wilson and Ginsberg. (Tr. 147–148.) After Wilson
picked up the carousel, Talavera put one open hand on Wilson
and said, “be smart.” (Tr. 149–150.) Wilson told Talavera not
11 Wilson was asked on cross-examination whether he recalled ever
trying to throw a coffee machine at Ginsberg during this meeting, and
said no. Tr. 97.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
to touch him, and then left the office 15 to 30 seconds later. (Tr.
147–148, 150.) Diallo told Ginsberg to take it easy and go home,
and then returned to his own work. (Tr. 152–153.)
Wilson testified that after he left the meeting with Ginsberg,
Talavera, and Diallo, he went back to the annex and said good-
bye to Rosenberg, Gottlieb, and his co-workers. (Tr. 60–61.)
Wilson testified that while walking through the parking lot on
his way to the locker room in the production building to change
out of his uniform, he saw Ginsberg about 15 feet away, but the
two did not interact. (Tr. 61.) After changing his clothes, Wilson
left the premises. (Tr. 61.)
Talavera testified that he instructed a security guard to call the
police regarding the incident. (Tr. 141.) However, Talavera tes-
tified that there was no difficulty in getting Wilson to leave the
facility after his discharge.12 (Tr. 142). No police report was
filed, and there was no written record of this incident prepared
by Alle. (Tr. 126, 141–142, 153.)
III. DECISION AND ANALYSIS
A. Credibility Resolutions
A decision in this case necessarily involves an assessment of
witness credibility. Credibility determinations require consider-
ation of the witness’ testimony in context, including factors such
as witness demeanor, “the weight of the respective evidence, es-
tablished or admitted facts, inherent probabilities, and reasona-
ble inferences drawn from the record as a whole.” Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Su-
shi, 335 NLRB 622, 623 (2001), enfd. 56 Fed.Appx. 516 (D.C.
Cir. 2003); see also Hill & Dales General Hospital, 360 NLRB
611, 615 (2014). Corroboration and the relative reliability of
conflicting testimony are also significant. See, e.g., Precoat
Metals, 341 NLRB 1137, 1150 (2004) (lack of specific recollec-
tion, general denials, and comparative vagueness insufficient to
rebut more detailed positive testimony). It is not uncommon in
making credibility determinations to find that some but not all of
a particular witness’ testimony is reliable. See, e.g., Farm Fresh
Co., Target One, LLC, 361 NLRB 848, 860 (2014).
In making credibility resolutions here, I have considered the
witnesses’ demeanor, the context of their testimony, corrobora-
tion via other testimony or documentary evidence or lack
thereof, the internal consistency of their accounts, and the wit-
nesses’ apparent interests, if any.
B. The Discharge of Traverse Joel Wilson on January 30, 2018
General Counsel contends that Alle unlawfully discharged
Wilson on January 30, 2018, for his protected activity in refusing
to sign a dues-checkoff authorization for Local 726 at the meet-
ings with Ginsberg, Talavera and Diallo. Alle contends that Wil-
son’s discharge did not violate the Act on two grounds. First,
Alle asserts that Wilson was not engaged in protected activity
during the events on January 30, 2018, that culminated in his
discharge. Alle further contends that even if Wilson was
12 Talavera confirmed that Wilson would have had to go to the locker
room to change out of his work uniform before leaving the premises. Tr.
142.
13 In Reynolds Electric, Inc., 342 NLRB 156 (2004), also cited by Alle,
the Board “assum[ed] without deciding that the judge correctly found”
engaged in protected activity, he lost the protection of the Act by
virtue of his statements and conduct at the January 30, 2018
meetings.
1. Wilson was engaged in protected activity during his meet-
ings with Talavera, Ginsberg, and Diallo
As an initial matter, I find that Wilson was engaged in pro-
tected activity during his meetings with Talavera, Ginsberg, and
Diallo. It is well settled that the Act “guarantees to each em-
ployee the right to determine for himself, free from coercion,
whether he shall sign a checkoff authorization or not.” Comau,
Inc., 358 NLRB 593, 596 (2012), quoting Herman Bros., Inc.,
264 NLRB 439, 442 (1982); see also Bluegrass Satellite, Inc.,
349 NLRB 866, 867 (2007). Thus, Wilson’s repeated refusals
during the January 30 meetings to execute dues-checkoff author-
izations for Local 726, despite Talavera and Ginsberg’s exhorta-
tions, and his protests and arguments against doing so, consti-
tuted protected activity.
In this regard, I credit Wilson’s testimony that he met with
Talavera and his supervisor Chaim Rosenberg earlier during his
shift on January 30, and that during this meeting Talavera di-
rected Wilson to sign a dues-checkoff authorization and Wilson
refused. Wilson’s account of his initial meeting with Talavera
and Rosenberg on January 30 was detailed, internally consistent,
and consonant with the events which followed. Talavera by con-
trast provided testimony, which was vague, evasive, and gener-
ally less credible overall than Wilson’s testimony on this issue.
And although Talavera testified that his only meetings with Wil-
son on January 30 were the meetings with Ginsberg and Diallo
present, Talavera also admitted that he had individual meetings
with other warehouse employees where they signed dues-
checkoff authorizations. (Tr. 36–37, 132.) Thus, the evidence
establishes that Wilson’s January 30 meeting with Ginsberg, Ta-
lavera, and Diallo followed an earlier meeting with Talavera, all
convened for the specific purpose of convincing Wilson to sign
a dues-checkoff authorization for Local 726.
Alle contends that Wilson’s conduct at the January 30 meet-
ings did not constitute concerted activity protected under Section
7 of the Act, because Wilson acted solely for his own personal
benefit by requesting a pay raise or other personal concessions
in exchange for executing the dues-authorization form.
posthearing brief at p. 7–8, citing Quicken Loans, Inc., 367
NLRB No. 112 (2019).13 Wilson testified that after Ginsberg
directed him to sign the dues-checkoff authorization he asked
whether the company would increase his pay or “do anything for
me” in exchange for signing. Tr. 74. However, I do not find that
Wilson’s comments in this respect establish that his conduct at
the January 30 meetings was not protected because it was not
concerted in nature. First of all, pursuant to the cases discussed
above Wilson’s refusal to sign the dues checkoff was protected
regardless of the rationale he articulated for declining to do so.
In addition, however, I credit Diallo’s testimony that Wilson spe-
cifically linked his own refusal to execute the dues checkoff
that the discharged employee “had engaged in concerted activity.” As a
result, that case is not precedential with respect to conduct constituting
protected concerted activity.
ALLE PROCESSING CORP. D/B/A MEAL MART 9
authorization to the position of the other warehouse employees
with respect to this issue. Specifically, Diallo testified that Wil-
son “was saying that he – as a leader, and not only as a leader, as
an individual employee, he will no[t] sign a paper that doesn’t
benefit him.” (Tr. 146.) Diallo further testified that as the dis-
cussion proceeded Wilson continued “talking about he and his
fellows and why they don’t want to sign.” (Tr. 146.) Diallo’s
testimony is also consistent with Wilson’s unrebutted descrip-
tion of his repeated discussions with his co-workers regarding
Local 726, culminating in the warehouse employees’ initial po-
sition that they would not sign in support of the Union because
they could see no benefit to doing so. Given the foregoing, Wil-
son’s statements soliciting an individual pay raise or benefit at
the January 30 meeting with Ginsberg and Diallo do not establish
that his conduct was not concerted activity, as Alle suggests.
For all of the foregoing reasons, the record establishes that
Wilson was engaged in protected concerted activity during the
January 30 meetings with Talavera, Ginsberg, and Diallo.
2. Wilson did not lose the protection of the Act pursuant to
Atlantic Steel
Both parties contend that the question of whether Wilson’s
conduct at the January 30 meetings lost the Act’s protection is
governed by the analysis set forth in Atlantic Steel, 245 NLRB
814 (1979). Pursuant to Atlantic Steel, the Board considers the
following factors in order to determine whether otherwise pro-
tected conduct lost the protection of the Act: (i) the place of the
discussion; (ii) the discussion’s subject matter; (iii) the nature of
the outburst on the part of the employee; and (iv) whether the
outburst was provoked by the employer’s unfair labor practices.
See, e.g., Postal Service, 364 NLRB No. 62 at 3 (2016); Crowne
Plaza LaGuardia, 357 NLRB 1097, 1099 (2011); Plaza Auto
Center, Inc., 355 NLRB 493, 494 (2010), remanded 664 F.3d
286 (9th Cir. 2011), decision on remand 360 NLRB 972 (2014).
These four criteria are intended to permit “some latitude for im-
pulsive conduct by employees” during protected concerted ac-
tivity, while acknowledging the employer’s “legitimate need to
maintain order.” Plaza Auto Center, Inc., 355 NLRB at 494.
Overall the Atlantic Steel analysis is intended to evaluate
whether the employee’s conduct is “sufficiently egregious or op-
probrious to remove it from the protection of the Act.” Meyer
Tool, Inc., 366 NLRB No. 32 at 1 fn. 2 (2018), enfd. 763
Fed.Appx. 5 (2d Cir. 2019).
Based upon the record evidence, the first, second, and fourth
components of the Atlantic Steel analysis strongly support a con-
clusion that Wilson’s conduct during the January 30 meetings
did not lose the Act’s protection. The third factor of the Atlantic
Steel analysis also militates in favor of a determination that Wil-
son’s conduct retained the protection of the Act. As a result, the
evidence overall establishes that Alle violated Section 8(a)(3)
and (1) of the Act by discharging Wilson in retaliation for his
protected activity.
The first of the Atlantic Steel factors—the place of the discus-
sion—firmly supports a finding that Wilson’s conduct remained
protected. It is undisputed that all of the January 30 meetings
took place entirely within Talavera’s office on the first floor of
the production building, and not in a work area. See Postal Ser-
vice, 364 NLRB No. 62 at 3; Datwyler Rubber & Plastics, Inc.,
350 NLRB 669, 670 (2007). Ginsberg, Talavera, and Diallo—
all managers or supervisors—were the only individuals present
at the meetings other than Wilson. See Postal Service, 364
NLRB No. 62 at 1, 3 (only supervisor and employee/union rep-
resentative attended the meeting in question); Plaza Auto Center,
Inc., 355 NLRB at 494 (meeting involved employee and man-
agement officials only). The office has a door which could have
been closed at any time should any of the managers have desired
to do so. And in any event, there is no evidence that any other
employee of Alle saw or heard anything that occurred during the
meetings. Postal Service, 364 NLRB No. 62 at 3 (no evidence
that “anyone else was within earshot” of the discussion); Beverly
Health & Rehabilitation Services, 346 NLRB 1319, 1322 fn. 20,
1323 (2006). Indeed, the warehouse employees worked in an
entirely different building in the facility. See Meyer Tool, Inc.,
366 NLRB No. 32 at 1, fn. 2, and at 11 (discussion took place in
“a separate building” from the facility’s production areas). As a
result, the evidence does not establish that Wilson’s conduct, or
the meetings generally, were disruptive to the work of other em-
ployees or undermined the authority of any of the managers pre-
sent. Postal Service, 364 NLRB 972, 978; Plaza Auto Center,
360 NLRB 972 at 978. This component of the Atlantic Steel
analysis therefore militates in favor of a finding that Wilson’s
conduct did not lose the protection of the Act.
The second of the Atlantic Steel criteria—the subject matter
of the discussion—strongly supports the conclusion that Wil-
son’s conduct retained its protected character. As discussed
above, there is no dispute that the January 30 meetings addressed
Wilson’s refusal to sign a dues-checkoff authorization for Local
726. Indeed, Ginsberg testified that his meeting with Wilson was
specifically called for that purpose after he received the letter
from Local 726 stating that the Union intended to enforce the
union security clause contained in its contract with Alle. Wilson
had long been a vocal opponent of Local 726, and the evidence
establishes that as of January 30, 2018, he was the only one of
the warehouse employees who had not signed a dues-checkoff
authorization. As discussed above, by protesting and refusing to
sign the dues-checkoff authorization for Local 726, Wilson was
invoking “the right to determine for himself, free from coercion,
whether he shall sign a checkoff authorization or not.” Comau,
Inc., 358 NLRB at 596; Bluegrass Satellite, Inc., 349 NLRB at
867. Thus, because Wilson’s conduct “occurred in the context
of his attempted assertion of a fundamental right under the Act,”
the second component of the Atlantic Steel analysis strongly sup-
ports a finding that that conduct retained its protected character.
Stanford Hotel, 344 NLRB 558, 559 (2005).
The third component of the Atlantic Steel analysis requires a
consideration of “the nature of the employee’s outburst or al-
leged misconduct.” Postal Service, 364 NLRB No. 62 at 3;
Crowne Plaza LaGuardia, 357 NLRB at 1099. Alle contends
that during the January 30 meetings Wilson made an obscene
gesture to Ginsberg, threatened him, and attempted to assault
Ginsberg with a coffee cup rack. Alle argues that as a result the
third of the Atlantic Steel factors weighs heavily against a finding
that Wilson’s conduct remained protected. In order to address
these assertions, I must evaluate the credibility of the testimony
regarding Wilson’s behavior during the meeting, and the relative
credibility of the witnesses—Wilson, Ginsberg, Talavera, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Diallo—that addressed this issue. I generally found Diallo and
Wilson to be the most credible of the four witnesses. Diallo gen-
uinely appeared to be recounting the meeting to the best of his
recollection and providing specific detail to the best of his abil-
ity, candidly admitting that he did not want to attend the meeting
and was not paying attention until Ginsberg asked Wilson to sign
the dues-checkoff authorization and Wilson refused. (Tr. 144.)
Diallo does not appear to have been involved with the warehouse
department and does not interact regularly with Ginsberg. (Tr.
143, 155.) He generally testified with equanimity and in a
straightforward manner. Wilson’s testimony was relatively
forthright, but conflicted in certain respects with his affidavit,
and was inconsistent on direct and cross-examination regarding
a crucial matter involving his termination, as discussed in further
detail below. Ginsberg was a garrulous witness who attempted
as described below to manipulate language or obfuscate the
events of the meetings, such that his testimony was less reliable
overall. Talavera’s testimony, by contrast, was terse, and he con-
tended at one point that he could not remember the specifics of
the most critical January 30 meeting. (Tr. 135.) I have generally
credited his testimony regarding the meetings only to the extent
that it is corroborated by other witnesses or constitutes an admis-
sion.
It is undisputed that Wilson used profanity and made an ob-
scene gesture during the January 30 meeting with Ginsberg, Ta-
lavera, and Diallo. All of the witnesses present at the meeting,
including Wilson himself, testified that Wilson raised his middle
finger to Ginsberg and used the word “fuck” several times. Di-
allo testified that Wilson used the word “fucking” repeatedly, in-
cluding the statement, “I will not fucking sign this document.”
(Tr. 148.) However, I do not credit Ginsberg’s testimony that
Wilson referred to him as a “motherfucker,” which was uncor-
roborated by any other witness. (Tr. 112.) I also do not credit
Wilson’s testimony that Ginsberg told him “fuck you,” two or
three times toward the end of the meeting. (Tr. 99.) Instead, I
credit Diallo’s testimony corroborating Ginsberg’s assertion that
he did not use profanity toward Wilson. (Tr. 111–112, 148–
149.) Thus, the evidence establishes that except for the raised
middle finger, Wilson’s profanity was not specifically directed
toward Ginsberg or the other managers.14 Instead, the evidence
indicates that Wilson used the word “fuck” as an intensifier, to
more vehemently express his own emotional state, particularly
his frustration with Talavera and Ginsberg’s exhortations to sign
the dues-checkoff authorization. In any event, the Board has re-
peatedly found that profanity directed toward management is in-
sufficient to establish that the third component of the Atlantic
Steel analysis weighs against a finding that the employee’s con-
duct remained protected. See Plaza Auto Center, 355 NLRB
494–495 (employee’s activity remained protected, despite refer-
ence to owner as a “fucking motherfucker,” “fucking crook,” and
“asshole,” as “a single verbal outburst of insulting profanity does
not exceed the bounds of the Act’s protection”); see also Alcoa,
14 Wilson testified that at the end of the meeting he told Ginsberg,
Talavera, and Diallo, “Fuck all y’all.” However, for the reasons dis-
cussed infra, I find that Wilson made this particular comment after he
was discharged. As a result, it is addressed pursuant to the standard for
evaluating an employee’s post-discharge conduct, and not in the context
Inc., 352 NLRB 1222, 1225–1226 (2008) (employee referred to
supervisor as an “egotistical fucker”); see also Burle Industries,
300 NLRB 498, 500, 504 (1990), enfd., 932 F.2d 958 (3d Cir.
1991) (employee called supervisor a “fucking asshole”).
In addition, the record demonstrates that Alle’s employees use
profanity in the workplace as a matter of course, occasionally in
discussions with their supervisors. The Board considers evi-
dence regarding the commonplace nature of profanity in a work-
place when evaluating the third component of the Atlantic Steel
analysis. See, e.g., Constellium Rolled Products Ravenswood,
LLC, 366 NLRB No. 131 at 1, 3 (2018); Stanford Hotel, 344
NLRB at 559. Talavera testified that employees use profanity at
work “When they’re talking among themselves.” Tr. 34. Tala-
vera further admitted that Alle has no rule prohibiting the em-
ployees from using profanity, and that no employee had ever
been disciplined for doing so. Tr. 34–35. Instead, he stated that
an employee might be told verbally to “tone [it] down.” Tr. 35.
Furthermore, Wilson testified without contradiction that he had
heard other warehouse employees tell supervisors Rosenberg
and Gottlieb to “fuck themselves,” and call them “a whole bunch
of bitches” while complaining about work assignments. Tr. 62–
63. There is no evidence that any of these employees were dis-
ciplined in any way for doing so. See, e.g. Constellium Rolled
Products Ravenswood, LLC, 366 NLRB No. 131 at 1, 3 (em-
ployer’s “general tolerance of profanity in the workplace” belies
claim that employee’s obscene statement “was particularly egre-
gious”). Thus, the evidence establishes that Alle generally tol-
erated the warehouse employees’ use of profanity without im-
posing discipline.
Alle also contends that Wilson verbally threatened Ginsberg
during the January 30 meeting. The Board determines whether
specific conduct is threatening using an objective standard, as
opposed to evidence regarding the subjective reactions or re-
sponses of the individuals involved in a particular incident.
Meyer Tool, Inc., 366 NLRB No. 32 at 12; Plaza Auto Center,
Inc., 360 NLRB at 974. Specifically, Alle argues that Wilson
threatened Ginsberg based upon Ginsberg’s testimony that Wil-
son stated to him, “I can get to you whenever I want,” “I’m a
streets guy,” and “Eventually you have to leave this place, so I’ll
get you then.” (Tr. 113; posthearing brief at p. 5.) I do not credit
this testimony of Ginsberg’s, however, which was uncorrobo-
rated by Diallo or Talavera. I credit instead Diallo’s testimony
that when Ginsberg continued to ask Wilson to sign the dues-
checkoff authorization, Wilson asked what Ginsberg could do
for him, “because l am from the street. And life is kind of—it’s
hard.” (Tr. 146.) I further credit Diallo’s testimony that during
the ensuing argument, Wilson told the managers, “I will fix this
on the street.” (Tr. 147.) However, this statement does not ex-
plicitly refer to any sort of physical violence. Instead, the record
evidence more reasonably indicates that Wilson was referring to
approaching Local 726 directly regarding membership and dues
payments or to filing unfair labor practice charges. Ginsberg
of the third of the Atlantic Steel criteria. However, given the caselaw
discussed herein, the comment, “Fuck all y’all,” would not engender a
finding that the third of the Atlantic Steel criteria favored a determination
that Wilson’s conduct lost the Act’s protection.
ALLE PROCESSING CORP. D/B/A MEAL MART 11
himself testified that during this portion of the conversation, Wil-
son said, “I don’t have to sign this . . . I could do this my way.”
(Tr. 111.) Such a remark is more reasonably interpreted as re-
ferring to addressing the dues issue directly with Local 726 as
opposed to via dues checkoff, which was Wilson’s prerogative
pursuant to the caselaw discussed above. In addition, Wilson
testified that as of January 30, he already intended to meet with
personnel from NLRB Region 29, so that after the meetings
ended, “I was upset but I knew I was coming down to the labor
board.” (Tr. 100–101.) He also testified without contradiction
that he attempted to speak to an attorney during a hiatus in the
January 30 meetings. (Tr. 95–96.) This context indicates that
Wilson’s statement that he would address the Local 726 dues is-
sue in a different manner referred to possible legal action, and
not to inflicting physical harm. See Plaza Auto Center, Inc., 355
NLRB at 495 and 360 NLRB at 976 (employee’s statement that
employer would “regret” firing him threatened legal conse-
quences only given employee’s inquiry to a State agency regard-
ing minimum wage requirements); Meyer Tool, Inc., 366 NLRB
No. 32 at 5, 12, fn. 30 (employee’s statement that human re-
sources generalist would “pay for her actions” more reasonably
referred to the addition of the human resources generalist to a
previously filed internal complaint and not to physical harm).
Furthermore, during his testimony regarding the January 30
meeting Ginsberg minimized the impact of Wilson’s allegedly
threatening remarks, stating, “it didn’t faze me much,” and “I
brushed that off.” (Tr. 111–112.) This testimo(ny is consistent
with record evidence establishing that while Talavera directed
security to call emergency services, no police report was ever
filed, and none of the managers present at the January 30 meet-
ings ever bothered to prepare a written statement regarding the
incident. (Tr. 125, 140.) Thus, the contextual evidence is not
consonant with a finding that Wilson’s remarks regarding “the
street” constituted a threat of physical violence.
Alle also asserts that during the January 30 meetings, Wilson
attempted to assault Ginsberg with a carousel containing individ-
ual servings of ground coffee and creamer. Posthearing brief at
11–12. As discussed below, I credit Diallo and Talavera’s testi-
mony that Wilson grabbed or placed his hand on the coffee car-
ousel, and that Talavera placed his hand over Wilson’s while Di-
allo and Talavera moved between Wilson and Ginsberg. How-
ever, the weight of the evidence establishes that Ginsberg dis-
charged Wilson before Wilson touched the coffee carousel. It is
well-settled that the fact of a discharge is not contingent upon an
employer’s choice of words. Johnston Fire Services, LLC, 367
NLRB No. 49 at 10 (2019), citing Ridgeway Trucking Co., 243
NLRB 1048, 1048-1049 (1979), enfd. in relevant part 622 F.2d
1222, 1224 (5th Cir. 1980) (supervisor’s statement that em-
ployee was “not needed anymore” sufficient to constitute a dis-
charge). Instead, it suffices that “the words or actions of the em-
ployer would logically lead a prudent person to believe his tenure
has been terminated.” Ridgeway Trucking, 243 NLRB at 1048–
1049. In determining whether a discharge has occurred, the
statements and actions of the individuals involved are evaluated
15 Given Diallo, Talavera, and Wilson’s testimony, I do not credit
Ginsberg’s various assertions that neither he nor Talavera definitively
stated that Wilson was discharged. Tr. 114, 126–127.
from the employee’s perspective. Johnston Fire Services, LLC,
367 NLRB No. 49 at 10. The employer is generally considered
responsible for any ambiguity in the situation. Kolkka Tables,
335 NLRB 844, 846 (2001).
Here, the evidence, including the testimony of Wilson, Diallo,
and Talavera, conclusively establishes that Ginsberg discharged
Wilson before Wilson grabbed or placed his hand on the coffee
carousel. Wilson’s account of Ginsberg’s statements immedi-
ately after Wilson raised his middle finger varied on direct and
cross-examination. See (Tr. 59–60, 89–91.) However, both ver-
sions were actually corroborated by one of the managers at the
meeting, and both establish that Wilson was discharged prior to
touching the coffee carousel. On cross-examination, Wilson tes-
tified that after he gave Ginsberg “the finger,” Ginsberg stated
that he was discharged. (Tr. 89–91.) This testimony was cor-
roborated by Talavera, who testified that immediately after Wil-
son’s obscene gesture, Ginsburg stated that Wilson had “crossed
the line,” that his behavior was “insubordinat[e] and disrespect-
ful, and he was being terminated.” (Tr. 135–136.) This language
clearly conveys that Wilson was discharged. On direct exami-
nation, Wilson testified that Ginsberg responded to “the finger”
by stating, “Now I have a reason to fire you, insubordination.”
(Tr. 59–60). This testimony is roughly consonant with Diallo’s
testimony that Ginsberg stated, “listen, now you cross a line” and
“if you go that way, I will fire you.” (Tr. 146.) Diallo further
testified that Wilson then asked for a raise or some benefit in
exchange for signing, and after Ginsberg declined, Wilson
stated, “I will fix this on the street,” to which Ginsberg re-
sponded, “Now, you’re threatening me . . . now you’re really
fired.” (Tr. 147.) Diallo testified that it was only after that ex-
change that Wilson grabbed the coffee carousel. (Tr. 147.)
Thus, the testimony of Diallo, Talavera, and Wilson establishes
that Ginsberg discharged Wilson prior to any conduct involving
the coffee carousel.15
The context in which Ginsberg’s specific statements took
place also supports that conclusion. I credit Wilson’s testimony
that he asked Talavera, and later Ginsberg, whether he was being
discharged when Talavera referred to him as “dismissed,” a
question which evinces Wilson’s uncertainty regarding his em-
ployment status based on Talavera and Ginsberg’s statements.
Furthermore, Wilson had never interacted with Ginsberg before,
and therefore had no previous experience with his use of lan-
guage. Ginsberg was a manager who handled the company’s hu-
man resources and payroll as opposed to supervising employees
on the shop floor. As a result, it would have been abundantly
reasonable for Wilson to interpret even Ginsberg’s more equiv-
ocal statements as indicating that Ginsberg was discharging him
for insubordination. In any event, because the evidence demon-
strates that Wilson was discharged before touching or grabbing
the coffee carousel, that action is appropriately addressed pursu-
ant to the standard for evaluating post-discharge conduct, as op-
posed to within the third component of the Atlantic Steel analy-
sis.
For all of the foregoing reasons, the record evidence
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
establishes that the third of the Atlantic Steel factors militates in
favor of a conclusion that Wilson’s conduct at the January 30 me
The fourth of the Atlantic Steel criteria—whether the outburst
was provoked by the employer’s unfair labor practices—signifi-
cantly supports a finding that Wilson’s conduct did not lose the
protection of the Act. Indeed, the entire scenario in which Wil-
son’s outburst occurred constituted coercive conduct on the part
of Alle. As discussed above, an employee is entitled under the
Act to “determine for himself, free from coercion, whether he
shall sign a checkoff authorization or not.” Comau, Inc., 358
NLRB at 596. Thus, “any conduct, express or implied, which
coerces an employee in his attempt to exercise this right clearly
violates [the Act.]” Comau, Inc., 358 NLRB at 596, quoting
Electrical Workers IUE Local 601 (Westinghouse Electric
Corp.), 180 NLRB 1062 (1970). In particular, an employer
“may not lead employees to believe that the dues-checkoff au-
thorization method of fulfilling financial obligations to their un-
ion is compulsory.” Comau, Inc., 358 NLRB at 596; see also
Rochester Mfg. Co., 323 NLRB 260, 262 (1997), enfd. 194 F.3d
1311 (6th Cir. 1999). An employer’s conduct tending to coerce
employees into executing dues-checkoff authorizations violates
Section 8(a)(1). Comau, Inc., 358 NLRB at 595, 596–597 (em-
ployer violated Section 8(a)(1) when human resources manager
called employee into his private office, questioned employee re-
garding employee’s refusal to sign dues-checkoff authorization
form, and “expressed doubts about the reliability of paying
[dues] by other means”); Rochester Mfrg. Co., 323 NLRB at 261
(employer violated Section 8(a)(1) by “conditioning employ-
ment on the execution of checkoff authorization forms”).
The evidence here establishes that Talavera and Ginsberg
made repeated attempts to induce Wilson to sign the dues-
checkoff authorization on January 30. For the reasons discussed
previously, I credit Wilson’s testimony that he met with Talavera
and his supervisor Chaim Rosenberg earlier during his shift on
January 30, and that during this meeting Talavera directed Wil-
son to sign a dues-checkoff authorization, and Wilson refused.
Furthermore, Wilson’s supervisor Chaim Rosenberg, who ac-
cording to Wilson was also present at the initial January 30 meet-
ing with Talavera, did not testify. Therefore, Wilson’s testimony
that Rosenberg told him that Talavera wanted to speak to him
and escorted him to Talavera’s office, telling Wilson, “this is
over my head; I can’t do nothing for you,” is unrebutted.16 Tr.
54. The evidence establishes that warehouse employees did not
typically interact with Talavera or visit his office, and that Tala-
vera issued discipline to employees there. Tr. 26, 29–30. After
Wilson refused to sign the dues-checkoff authorization, Talavera
told Wilson that he was “dismissed,” and Wilson was unsure
enough about his continued employment status that he asked Ta-
lavera whether he was fired. I further credit Wilson’s unrebutted
testimony that Rosenberg approached him on the loading dock
and escorted him back to Talavera’s office for the meeting with
16 These statements attributed to Rosenberg by Wilson are not in-
cluded in Wilson’s affidavit prepared during the investigation of the
charge. However, in that Wilson’s testimony is unrebutted in this re-
spect, I find it credible. See Coserv Electric, 366 NLRB No. 103 at 3,
fn. 7, and at 8 (2018) (crediting unrebutted witness testimony despite de-
meanor issues and conflicts between witness’s testimony and affidavit).
Ginsberg, ultimately with Diallo present. Ginsberg freely admit-
ted that this meeting was initiated in order to address Wilson’s
refusal to sign the dues-checkoff authorization. It is undisputed
that after Wilson arrived, Ginsberg directed him to sign a dues-
checkoff authorization,17 and that Wilson refused, at least ini-
tially, to do so. This overall sequence of events—with Wilson
subjected to mandatory meetings with managers of increasing
authority who repeatedly demanded that he sign a dues-checkoff
authorization despite his protestations—constituted coercive be-
havior on the part of Alle under the pertinent caselaw. The evi-
dence therefore establishes that Wilson’s conduct at the January
30 meetings was provoked by a course of action on Alle’s part
which likely would have been found unlawful had it been alleged
as an unfair labor practice. See Felix Industries, 331 NLRB 144,
145, fn. 10 (2000), enf. denied 251 F.3d 1051 (2d Cir. 2001)
(“conduct which would have been found unlawful had it been so
alleged” may be considered in the context of the fourth of the
Atlantic Steel criteria); Constellium Rolled Products Ravens-
wood, LLC, 366 NLRB No. 131 at 3, fn. 14.
The evidence also establishes that, independent of the meet-
ings’ coercive nature overall, Wilson was provoked by Ginsberg
during their interactions. In addressing the fourth component of
the Atlantic Steel analysis the Board considers not only the po-
tentially coercive or unlawful nature of the circumstances in
which the employee’s outburst took place, but also the conduct
of the various individuals participating in the exchange as it un-
folds, and that conduct’s potential impact. See, e.g., Meyer Tool,
Inc., 366 NLRB No. 32 at 1 fn. 2, and at 12 (employee’s initially
calm demeanor changed after supervisor dismissively responded
to his complaint by repeatedly stating “whatever”); Battle’s
Transportation, Inc., 362 NLRB 125, 133–134 (2015) (em-
ployee provoked when chief operating officer told him to “shut
up”); Plaza Auto Center, Inc., 355 NLRB at 493–495 (manager
provoked employee by failing to respond to employee’s con-
cerns and repeatedly telling employee that “he did not need to
work there”); Burle Industries, 300 NLRB at 504 (employee pro-
voked by belief that supervisor “was making light of what he
viewed as a grave situation”). The Board also addresses any sur-
rounding events pertinent to the specific issue being discussed
when the outburst occurred. See Battle’s Transportation, Inc.,
362 NLRB at 134 (employee provoked by employer’s “previous
discrimination and animus against him”); Plaza Auto Center,
Inc., 355 NLRB at 493 (discussing employee’s history of activity
with respect to the compensation issues addressed during the
meeting where employee’s outburst took place).
The record evidence here establishes that Wilson was a pri-
mary opponent of Local 726’s representation of the warehouse
employees, and had led the warehouse employees’ opposition to
the Union for weeks. As of January 30, 2018, Wilson was the
only warehouse employee who had not executed a dues-checkoff
authorization. Local 726 had notified Alle in writing that it
17 The evidence does not establish that Ginsberg merely explicated the
union-security clause during the meeting; the weight of the credible evi-
dence establishes that Ginsberg simply directed Wilson to sign the dues
checkoff authorization. All of the witnesses testified that the meeting
began in that manner, and Wilson and Diallo did not testify that Ginsberg
mentioned the union-security provisions of the contract at all.
ALLE PROCESSING CORP. D/B/A MEAL MART 13
intended to enforce its union security clause with respect to Wil-
son, which would have resulted in his discharge. Yet Ginsberg
admitted in his testimony that during the January 30 meeting he
attempted to joke with Wilson, countering Wilson’s request for
a pay raise if he signed the dues-checkoff authorization by stat-
ing, “are you kidding, you want more vacation, what do you want
me to do?”18 (Tr. 108–109, 120–122.) I further credit Wilson’s
testimony that when he eventually acquiesced in signing the
dues-checkoff authorization he asked, “Do you know you’re
forcing me to do something I do not want to do?” and that Gins-
berg responded, “Yes, I know.” (Tr. 59.) There is no dispute
that, regardless of whether Ginsberg offered to shake Wilson’s
hand at that point, Ginsberg made a statement acknowledging
that Wilson was acquiescing in signing the dues-checkoff au-
thorization—in Ginsberg’s account he told Wilson, “that’s a
good idea, sign it”19—and construing his having done so as a
positive development. (Tr. 113.)
The credible evidence establishes that the intensity of the
meeting escalated immediately at that point. Wilson, Talavera,
Ginsberg, and Diallo all testified that Wilson responded to Gins-
berg’s statements by raising his middle finger at him. Wilson
testified that he did so because he felt that Ginsberg was mocking
him. (Tr. 59–60.) I credit Wilson’s testimony describing this
response, given Ginsberg’s admission that he had previously at-
tempted to joke around or “jest” regarding Wilson’s terms and
conditions of employment pursuant to the Local 726 contract,
and Wilson’s history of opposition to Local 726 and of advocacy
for the warehouse employees. Thus, the evidence demonstrates
that Wilson’s obscene gesture and language were provoked at
least in part by Ginsberg’s statements at the January 30 meeting.
Given all of the foregoing, the fourth component of the Atlantic
Steel analysis militates substantially in favor of a finding that
Wilson’s conduct remained protected.
For all of the foregoing reasons, the first, second, and fourth
of the Atlantic Steel criteria weigh significantly in favor of find-
ing that Wilson’s conduct remained protected under the Act. The
third factor in the Atlantic Steel analysis also militates in favor
of a finding that Wilson’s conduct retained the Act’s protection.
As a result, Wilson’s conduct remained protected, and Alle vio-
lated Section 8(a)(3) and (1) of the Act by discharging him on
January 30, 2018.
3. Wilson did not forfeit his eligibility for reinstatement and
backpay based upon his postdischarge conduct
As discussed above, I have found that the credible evidence
establishes that Ginsberg discharged Wilson after Wilson raised
his middle finger. However, the evidence also establishes that
after Ginsberg discharged Wilson, Wilson grabbed the coffee
carousel in Talavera’s office. Specifically, I credit the testimony
of Diallo and Talavera that Wilson grabbed the coffee carousel,
and that Talavera then put his hand over Wilson’s and told him,
“Be smart.” I further credit Diallo’s testimony that he and
18 Ginsberg referred to these comments as “a joke” on direct exami-
nation, but then attempted to obscure this testimony by questioning the
meaning of the word “joke” on cross-examination. Tr. 108, 122. I also
note that despite Ginsberg’s statements to Wilson that pay increases
could not be provided on an individual basis as a result of the collective
bargaining agreement with Local 726, the contract itself provides that
Talavera moved between Wilson and Ginsberg, believing that
Wilson was about to throw or strike Ginsberg with the coffee
carousel. I do not, however, credit Ginsberg’s testimony that
Wilson was “in the middle of throwing” the coffee carousel
when Talavera and Diallo interceded. The record does not es-
tablish that Wilson raised the coffee carousel in the air, “wound
up” in some way to throw the coffee carousel, or directed the
coffee carousel toward Ginsberg. Instead, the record establishes
that Wilson touched or grabbed the coffee carousel, Talavera
placed his hand over Wilson’s, telling him, “Be smart,” and Ta-
lavera and Diallo moved between Wilson and Ginsberg. Wilson
then told Talavera, “Don’t touch me,” Talavera removed his
hand from Wilson’s, and Wilson left the office almost immedi-
ately. Finally, Wilson testified that after Ginsberg fired him, he
told the managers, “Fuck all y’all. Y’all think I need this job.”
General Counsel argues in his Posthearing brief at page 12 that
the legal import of Wilson’s post-discharge conduct “is a matter
to be determined in a compliance proceeding,” and is not rele-
vant to Respondent’s liability for the unfair labor practices al-
leged. However, the Board routinely addresses post-discharge
conduct potentially affecting eligibility for reinstatement and
backpay in the same proceeding as the underlying unfair labor
practices. See, e.g., Fund for the Public Interest, 360 NLRB 877
(2014); Teen Triumph, 358 NLRB 11 (2012); Hawaii Tribune
Herald, 356 NLRB 661 (2011), enfd. 677 F.3d 1241 (D.C. Cir.
2012). It is particularly efficient to do so where, as here, the
post-discharge conduct potentially affecting a remedy occurred
as part of the same sequence of events as the allegedly unlawful
discharge itself.
The Board has recognized that evaluating post-discharge em-
ployee conduct which potentially disqualifies an employee from
full relief entails a “sympathetic recognition of the fact that it is
wholly natural for an employee to react with some vehemence to
an unlawful discharge.” Hawaii Tribune Herald, 356 NLRB at
662, quoting Trustees of Boston University, 224 NLRB 1385,
1409 (1976), enfd. 548 F.2d 391 (1st Cir. 1977). It is therefore
well settled that in order to obviate the reinstatement and back-
pay obligations engendered by an unlawful discharge, the em-
ployer must demonstrate that the employee’s post-discharge con-
duct was “so flagrant as to render the employee unfit for further
service, or a threat to efficiency in the plant.” Hawaii Tribune
Herald, 356 NLRB at 662, quoting O’Daniel Oldsmobile, 179
NLRB 398, 405 (1969). As the Board has noted, denial of rein-
statement is appropriate only in “extraordinary situations,” such
as a death threat, intentionally striking a supervisor with an au-
tomobile, and threatening to “report a probation violation in or-
der to influence a witness’s testimony during a Board hearing.”
Fund for the Public Interest, 360 NLRB at 877, quoting Timet,
251 NLRB 1180, 1180–1181 (1980), enfd.671 F.2d 973 (6th Cir.
1982), and collecting cases.
Two cases involving an employee’s physical conduct toward
Alle, “at its discretion, may grant individual merit increases in addition
to” the contract wage rates. R.S. Ex. 2, p. 17.
19 Wilson testified that Ginsberg said, “welcome, glad to have you.”
Tr. 59-60. Talavera testified that Ginsberg said “thank you very much,
it’s a smart decision you’re making.” Tr. 135.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
management immediately after an unlawful discharge – Casa
San Miguel, 320 NLRB 534 (1995), and Family Nursing Home,
295 NLRB 923 (1989)—illustrate the Board’s approach to such
situations. In Casa San Miguel, the employee meeting with Re-
spondent’s assistant director of nurses “became very upset” after
her unlawful discharge, and “begged” the assistant dirctor to “re-
scind” it. 320 NLRB at 552. When the assistant director refused
to do so, the employee “followed” her out of the office, “yelled
that [the assistant director] should go to hell,” and “tried to punch
[the assistant director] in the face, but was prevented from doing
so by another nurse who pulled her away.” Casa San Miguel,
320 NLRB at 552. The administrative law judge affirmed by the
Board, concluded that the employee’s attempted assault was a
“spontaneous response . . . clearly provoked” by the unlawful
discharge, and therefore did not warrant forfeiture of the typical
reinstatement and backpay remedies. See Casa San Miguel, 320
NLRB at 534 fn. 2, and at 557; see also Fund for the Public In-
terest, 360 NLRB at 877. In Family Nursing Home, by contrast,
the Board affirmed the ALJ’s conclusion that unlawfully dis-
charged employee Marilyn Holland forfeited reinstatement and
backpay remedies based upon the following conduct toward Di-
rector of Nursing David Fisher:
Fisher explained that leaving the unit left patients unattended
and that because of that and her past performance, [Holland]
was being terminated. Holland then backed up, grabbed a
bowling trophy and came at Fisher with it in her hand, still pro-
testing her discharge. Fisher picked up a chair to hold her off.
Holland grabbed a leg of the chair to pull it away. At this point
Fisher asked [supervisor] Sue Castro to call the police. Castro
went to the phone, but Holland, seeing this, grabbed the phone
receiver and pulled it out of the phone, wires and all, exclaim-
ing that no one was going to make any “fucking calls to the
police on this phone.” Fisher then told Castro to use a phone
in another office . . Castro left the room and made the call. Still
protesting that she could not be terminated, Holland put down
the trophy and left the room. After leaving, Holland returned
to the floor where she tore the linen from some made-up beds
and threw them [sic] on the floor.
295 NLRB at 923, fn. 2, 926, 927, 928, 931. The Board affirmed
the administrative law judge’s conclusion that Holland’s conduct
was sufficiently “flagrant” and “violent” that she was unfit for
further service. Family Nursing Home, 295 NLRB at 923,f n. 2,
citing Carthage Fabrics Corp., 101 NLRB 541, 553–555 (1952)
(employee who struck supervisor “in the face with his fists” after
discharge forfeited reinstatement and backpay); Stein-Way
Clothing Co., 131 NLRB 132, fn. 2 (1961) (employee denied re-
instatement and backpay where she physically assaulted a co-
worker immediately after discharge).
The situation at issue here strongly evokes the rationale which
informs the Board’s standard for evaluating post-discharge con-
duct, the leeway afforded to employees for spontaneous,
20 Ginsberg also testified that the conflict escalated after he responded
to “the finger” by telling Wilson, “you’re only giving me reasons to fire
you.” Tr. 119.
21 Wilson testified without contradiction that the sole physical alter-
cation he had at Alle occurred when another employee assaulted him
impassioned responses to an unlawful discharge. Specifically,
the evidence indicates that Ginsberg’s discharge of Wilson pre-
cipitated Wilson’s intemperate behavior in grabbing the coffee
carousel. I credit Talavera’s testimony that it was after Ginsberg
told Wilson that he was being terminated for insubordinate and
disrespectful behavior that Wilson got “all bent out of shape, up-
set,” and placed his hand on the coffee carousel.20 (Tr. 136.) I
further credit Wilson’s testimony that it was after Ginsberg fired
him that he made the statement, “Fuck all y’all. Y’all think I
need this job.” The evidence overall therefore establishes an es-
calating sequence of emotionally charged statements and behav-
iors, with Wilson, placed in a coercive situation involving issues
with which he had a history of advocacy on behalf of the ware-
house employees, repeatedly provoked during his interactions
with management—the ultimate provocation being the discharge
itself. The evidence thus establishes that Wilson’s touching the
coffee carousel was a “spontaneous response” to his unlawful
discharge, and not a deliberate or premeditated attempt to intim-
idate Ginsberg, Talavera or Diallo. Casa San Miguel, 320 NLRB
at 557. Furthermore, Wilson’s post-discharge behavior—grab-
bing the coffee carousel and cursing—is of a qualitatively differ-
ent order than the physical assault at issue in Family Nursing
Home, described above. And although the Board has stated that
“the success or failure of such an assault” does not conclusively
decide the forfeiture of reinstatement and backpay remedies,
Wilson’s post-discharge behavior was significantly less volatile
than the employee in Casa San Miguel’s attempt to “punch” her
supervisor “in the face” immediately after her discharge. 320
NLRB at 534 fn. 2, 557. In addition, there is no evidence that
Wilson had a history of violent or intimidating conduct.21 In-
deed, there is no evidence that Wilson had any disciplinary his-
tory whatsoever. And, as discussed above, Alle’s failure to file
a police report or even ensure that the managers present at the
January 30 meeting prepared written statements belies its con-
tention that Wilson’s behavior constituted a deliberate threat of
violence or attempt at intimidation. As a result, I find that Wil-
son’s post-discharge conduct here was not sufficiently flagrant
“as to render [Wilson] unfit for further service, or a threat to ef-
ficiency in the plant” under the applicable caselaw.
For all of the foregoing reasons, I find that Wilson did not for-
feit his eligibility for reinstatement and backpay by virtue of his
postdischarge conduct on January 30.
CONCLUSIONS OF LAW
1. Alle violated Section 8(a)(3) and (1) of the Act by discharg-
ing Traverse Joel Wilson on January 30, 2018, at the behest of a
labor union for refraining from becoming a member of the Union
and/or for declining to sign a dues-checkoff authorization.
2. The foregoing unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Alle has engaged in an unfair labor
between the facility gate and the parking lot after he confronted the em-
ployee for allegedly stealing his brother’s phone. Tr. 94–95. There is no
evidence that management was involved in this incident, Wilson was not
disciplined, and no written record was created.
ALLE PROCESSING CORP. D/B/A MEAL MART 15
practice, I shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of
the Act.
Having found that Alle discharged Traverse Joel Wilson at the
behest of a labor union for refraining from becoming a member
of the Union and/or for declining to sign a dues-checkoff author-
ization, I shall order Respondent to offer Wilson reinstatement
and make him whole for any loss of earnings and other benefits.
Backpay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). Alle shall also compensate Wilson for his search-for-
work and interim employment expenses, likewise with interest
compounded daily, regardless of whether those expenses exceed
interim earnings, pursuant to King Soopers, Inc., 364 NLRB No.
93 (2016), enfd. in relevant part, 859 F.3d 23 (D.C. Cir. 2017).
Alle shall further compensate Wilson for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
a report with the Regional Director allocating the backpay award
to the appropriate calendar year, pursuant to AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016). Finally, Alle must re-
move any reference in its files to Wilson’s unlawful discharge,
and notify Wilson in writing that this has been done and that the
discharge will not be used against him in any way.
Alle will also be ordered to post an appropriate informational
notice, as described in the attached appendix, in English and
Spanish. This notice shall be posted in Alle’s facility or wher-
ever notices to employees are regularly posted for 60 days with-
out anything obscuring or defacing its contents. In addition to
the physical posting of paper notices, notices in English and
Spanish shall be distributed electronically, such as by e-mail,
posting on an intranet or internet site, and/or other electronic
means, if Alle customarily communicates with its employees in
such a manner. Dish Network Corp., 366 NLRB No. 119 at 13–
14 (2018). In the event that, during the pendency of these pro-
ceedings, Alle has gone out of business or closed the facility in-
volved herein, Alle shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by Alle at any time since January 30, 2018.
The Consolidated Complaint also seeks an order requiring that
a representative of Alle read the notice to employees in English
and Spanish during worktime, or to allow a Board agent to do so
in the representative’s presence. It is unclear from General
Counsel’s posthearing brief and the Settlement Agreements re-
solving the allegations with respect to the recognition and exe-
cution of a collective-bargaining agreement between Alle and
Local 726 whether General Counsel continues to seek such a
remedy. In any event, the Board finds this extraordinary remedy
appropriate only in particularly egregious cases, where high-
level managers committed numerous unfair labor practices di-
rectly affecting the entire bargaining unit and/or did so in a
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended Or-
der 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.
particularly public manner. See, e.g., El Super, 367 NLRB No.
34 at 1 (2018); AdvancePierre Foods, Inc., 366 NLRB No. 133
at 5 (2018). As a result, such a remedy is not warranted here.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Alle Processing Corp. d/b/a Meal Mart,
Maspeth, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees at the behest of a labor union for
refraining from becoming a member of the union and/or for de-
clining to sign a dues-checkoff authorization.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days of the date of this Order, offer Traverse
Joel Wilson full reinstatement to his former position, or if that
position no longer exists to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Wilson whole for any loss of earnings and other
benefits suffered as a result of his unlawful discharge, in the
manner set forth in the remedy section above.
(c) Make Wilson whole for his reasonable search-for-work
and interim employment expenses, in the manner set forth in the
remedy section above.
(d) Compensate Wilson for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with the
Regional Director for Region 29, within 21 days of the of the
date that the amount of backpay is fixed by agreement or Board
order, a report allocating the backpay award to the appropriate
calendar year.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of the Board’s order.
(f) Within 14 days, remove from its files any reference to the
discharge of Traverse Joel Wilson, and, within 3 days thereafter,
notify Wilson in writing that this has been done and that the dis-
charge will not be used against him in any way.
(g) Within 14 days after service by the Region, post at its fa-
cility in Maspeth, New York, copies of the attached notice
marked “Appendix.”23 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
Alle’s authorized representative, shall be posted by Alle and
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the no-
tices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if Alle customarily communicates with its employees by such
means. Reasonable steps shall be taken by Alle to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. In the event that, during the pendency of these proceed-
ings, Alle has gone out of business or closed the facility, Alle
shall duplicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by Alle at the
Maspeth, New York facility at any time since January 30, 2018.
(h) Within 21 days after service by the Region, file with the
Regional Director for Region 29 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated: Washington, D.C., June 19, 2019
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you at the behest of a labor union for
refraining from becoming a member of the union and/or for de-
clining to sign a dues-checkoff authorization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Traverse Joel Wilson full reinstatement to his
former position, or if that position no longer exists to a substan-
tially equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Traverse Joel Wilson whole for any loss of
earnings and other benefits suffered as a result of his unlawful
discharge, less any net interim earnings, plus interest.
WE WILL make Traverse Joel Wilson whole for his reasonable
search-for-work and interim employment expenses, regardless
of whether those expenses exceed interim earnings, and conse-
quential economic harm she may have incurred, plus interest.
WE WILL compensate Traverse Joel Wilson for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 29, within 21 days
of the of the date that the amount of backpay is fixed by agree-
ment or Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WILL within 14 days, remove from our files any reference
to the discharge of Traverse Joel Wilson, and WE WILL, within
3 days thereafter, notify Wilson in writing that this has been done
and that the discharge will not be used against him in any way.
ALLE PROCESSING CORP. D/B/A MEAL MART
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/29-CA-213963 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.