Alle Processing Corp. d/b/a Meal Mart

National Labor Relations Board - Administrative Judge Opinions

Jun 19, 2019

29-CA-213963 (N.L.R.B. Jun. 19, 2019)

JD(NY)-10-19
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ALLE PROCESSING CORP. d/b/a
MEAL MART
and Case No. 29-CA-213963
TRAVERSE JOEL WILSON
Brent Childerhose, Esq. for the General Counsel.
Jeffrey A. Meyer, Esq. (Nixon Peabody LLP),
of Jericho, NY 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, 2018 and April 25, 2018, alleging that Alle Processing
Corp. d/b/a Meal Mart (Alle or Respondent) violated Sections 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, Region 29, issued an Erratum 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 Sections 8(a)(2) and (1). The
Consolidated Complaint further alleged that Alle deducted dues from employees’ weekly
pay and required that employees maintain membership in Local 726, in violation of
Sections 8(a)(2) and (1). Alle filed an Answer on February 6, 2019, denying the
Consolidated Complaint’s material allegations. These allegations were resolved by the
parties in an Informal Settlement Agreement reached prior to the opening of the
hearing. G.C. Ex. 3. As part of the Informal Settlement Agreement, General Counsel
and Alle withdrew the allegations of the Consolidated Complaint and Answer,
respectively, related to the issues of unlawful assistance as described above. G.C. Ex.
3.
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In addition, the Consolidated Complaint initially contained allegations against
Local 726 based upon a charge filed in Case No. 29-CB-216248 filed by Wilson on
March 9, 2018, and amended on April 25, 2018. The Consolidated Complaint alleged5
that Local 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 employees, and violated Sections 8(b)(1)(A) and 8(b)(2) by
accepting recognition from Alle and causing Alle to maintain an unlawful union security
provision. The charge against Local 726 was also resolved between the parties prior to10
the opening of the hearing in an Informal Settlement Agreement. G.C. Ex. 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 8(b)(2) of
the Act, and Local 726 withdrew its Answer. G.C. Ex. 2.
15
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by General Counsel and Alle, I make the following
Findings of Fact
20
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 packaging 25
of kosher food products for hospitals and stores. Respondent 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 engaged in commerce within the meaning of 30
Section 2(5) of the Act.
Ivan Talavera testified at the hearing that he is Alle’s Production Manager and
Plant Manager. Tr. 15. Moshe Ginsberg, who also testified at the hearing, handles
Alle’s Human Resources, including payroll. Tr. 103. Mamodou Diallo, also called by 35
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
40
A. Background
As admitted in its Answer, Alle manufactures and packages kosher food products
for hospitals and stores at its Maspeth facility. Tr. 17. Alle employs between 350 and
400 employees at its Maspeth facility, in production, warehouse, shipping, and receiving 45
departments. Tr. 17-18. The facility consists of three buildings – the production
JD(NY)-10-19

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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 warehouse 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. 25.5
At the time of his discharge on January 30, 2018, Charging Party Traverse Joel
Wilson had been employed by Alle for almost 10 years as a stock worker on the 6:00
p.m. to 2:00 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 10
delivery the following morning. Tr. 41. About 20 employees worked on the 6:00 p.m. to
2:00 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 15
best worker on the crew, and testified that he received raises which more than doubled
his hourly rate over his ten year period of employment.1 Tr. 64, 67.
Wilson had engaged in protected concerted and union activities long before the
series of events which ultimately culminated in his discharge. Wilson testified without 20
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 25
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
received 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 convince his co-workers to vote for the union in an election which 30
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
distributed the cards to his co-workers, but his co-workers never returned them. Tr. 44-
45.35
Wilson was an outspoken opponent of Local 726 when it began 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 containing
a paper with names, signatures and dates. Tr. 45-46. Apple told Wilson that the paper 40
was for the union that was going to represent the employees, and said that the
employees would get a thirty or thirty-three cent raise to cover the union dues which
would be deducted from their paychecks. Tr. 45-46. Wilson told Apple that that the
employees were not signing and wanted to see a contract and additional information
first. Tr. 46. Only one employee signed the paper at that time. Tr. 46. Apple tried to 45

1 Gottlieb and Rosenberg did not testify at the hearing.
JD(NY)-10-19

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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 department employees 5
on Wilson’s shift attended a meeting with Talavera, Rosenberg, Gottlieb, and two
representatives of Local 726.2 Tr. 47. The Local 726 representatives introduced
themselves, 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 questions regarding the contract, with Wilson asking about health 10
insurance 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 repeatedly
asked for a copy of the contract, and the Local 726 representatives stated that they did
not have it with them and would get back to the employees later. Tr. 48-49. The Local 15
726 representatives had union authorization cards with them at the meeting, but did not
distribute them. Tr. 49-50. After the Union 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-20
workers in the warehouse department discussed Local 726 on a daily basis, and
decided that they would not sign anything pertaining to the Union 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 25
collective bargaining agreement recognizing Local 726 as the exclusive collective-
bargaining representative of employees 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, 30
Mixers, Drivers, Housekeeping, Maintenance, Dishout Packing, Retort
Production, R&D, Security and Warehouse; however, excluding all
managers, confidential employees, office clericals, casual employees,
professional employees, technical employees, guards and supervisors as
defined by the National Labor Relations Act.35
See also R.S. Ex. 2, p. 3; Tr. 35. This contract contains a union-security clause
requiring that the bargaining unit employees become 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 initiation fees. R.S. Ex. 40
2, p. 4; Tr. 35. The collective bargaining agreement was executed for Alle by Edwin
Weinstock, its Chief Executive Officer. R.S. Ex. 2, p. 19; Tr. 116-117.

2 Talavera confirmed that this meeting took place, and testified that the purpose of the meeting was for
the Local 726 representatives to “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.
JD(NY)-10-19

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Thereafter, Local 726 representatives came to visit the facility and meet with the
employees on Tuesdays. Tr. 50. Talavera testified that the purpose of these meetings
was for the employees to sign dues deduction authorization forms for Local 726. Tr. 38.
Wilson testified that when he arrived at work on January 9, 2018, Chaim Rosenberg told
him that a Union representative wanted to speak to him, and he was directed to an 5
office about 10 feet from Talavera’s. Tr. 50-51. There were two Local 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 10
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 15
give the forms to employees. Tr. 36. Talavera testified that he brought employees that
refused to sign dues checkoff authorizations into his office, 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 20
by the end of January 2018, Wilson 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 Security Clause Regarding Traverse Wilson.” 25
R.S. Ex. 1; Tr. 105-106. 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. Ex. 1. The letter contended that Local 726 had met
with Wilson “multiple times to seek…enrollment in the Union,” but Wilson had “failed to 30
comply.” R.S. Ex. 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 collective bargaining agreement.” R.S. Ex. 1.
Ginsberg testified that after receiving the Union’s January 25, 2018 letter he 35
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
intended 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 40
bargaining agreement. Tr. 107.
B. The Events of January 30, 2018
On January 30, 2018, Ginsberg and Talavera had a series of meetings with 45
Wilson regarding his refusal to sign a dues checkoff authorization for Local 726.
JD(NY)-10-19

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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 5
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 10
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 approximately 12 feet by 12 feet square. Tr. 87. The office has a door and 15
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 employees, 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 20
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 office, Talavera was 25
alone sitting behind his desk. Tr. 55. Talavera 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 towards me whatsoever; why
would I sign it?” Tr. 55. After some additional discussion along these lines, Talavera
told Wilson he was “dismissed.” Tr. 55. Wilson asked, “Does that mean I’m fired?” Tr. 30
55. Talavera responded, “No, you’re dismissed.”4 Tr. 55. Wilson then returned to his
work station on the loading dock. Tr. 55-56. Wilson testified that he and Talavera may
have raised their voices during this meeting, but there was no shouting during their
conversation.5 Tr. 55-56.
35
Wilson testified that he called Lincoln Gashetti while walking through the parking
lot on the way back to his work station. Tr. 56. He described his conversation with

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, Wilson 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 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.
JD(NY)-10-19

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Talavera, and, according to Wilson, Gashetti described a similar meeting with Talavera.6
Tr. 56. According to Wilson, Gashetti stated that he told Talavera he needed a day to
consider whether or not to sign the dues checkoff authorization, and Talavera sent him
home. Tr. 56.
5
Wilson testified that after he returned to the loading dock, Rosenberg
approached him to escort him back to Talavera’s office, telling Wilson that someone
else wanted to speak to him. Tr. 56. When Rosenberg and Wilson returned to
Talavera’s office, Moshe Ginsberg was also present. Tr. 56-57. Talavera was seated
behind his desk, while Ginsberg, Rosenberg and Wilson remained standing. Tr. 57. 10
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 agreement to 15
pay dues to Local 726. Tr. 57, 77-78. Wilson responded 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 Wilson 20
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. Wilson testified that Ginsberg and
Talavera continued to use the word “dismissed,” so he left the office to calm down.7 Tr. 25
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 30
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 35
desks in the office, and the three managers were on the other side. Tr. 60. Wilson
testified that he said, “You got me, I’m going to sign it,” and Ginsberg thanked him and
handed him the dues checkoff authorization form. Tr. 59. Wilson said to Ginsberg, “Do
you know that you’re forcing me to do something I do not want to do?” Ginsberg
responded, “Yes, I know.” Tr. 59. Wilson testified that he signed the form, and after he 40
did so Ginsberg said, “Welcome, glad to have you,” and reached out to shake his hand.8

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.
7 Ginsberg testified that he could not recall what, if anything, Talavera said during this meeting. Tr. 110.
8 Ginsberg testified that he did not remember offering his hand to Wilson at the meeting. Tr. 125.
Talavera also could not recall whether Ginsberg offered his hand to Wilson. Tr. 138.
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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; 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 5
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.
Ginsberg 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 10
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. 62.15
Moshe Ginsberg also testified regarding the meeting with Wilson, Talavera, and
Diallo. As discussed above, Ginsberg testified 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 collective bargaining agreement 20
with respect to Wilson. Tr. 106-107; R.S. Ex. 1. Ginsberg testified that when he
entered Talavera’s office, Talavera and Diallo were sitting, and Talavera asked Diallo to
stay. Tr. 107.
Ginsberg testified that when Wilson arrived, he told Wilson that he had received 25
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. Ginsberg30
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, attempting 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 35
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 agreement. Tr. 109-
111. Ginsberg testified that Wilson became more agitated during the discussion. Tr. 40
109. Ginsberg then told Wilson that if he did not sign the dues checkoff authorization,
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.
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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 5
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 testified 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 10
the dues checkoff authorization. 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 testified that prior to this point the room was quiet, but then Wilson lost his
temper and the conflict escalated. Tr. 119. Wilson responded, “I can get to you 15
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.
20
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 25
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.
Talavera 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. 30
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.
35
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 benefit him. Tr.
133. Ginsberg responded that there was a contract that the company had to follow, and40
that the entire issue had nothing to do with Wilson personally. Tr. 135. Talavera
testified 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.

10 Wilson denied making any such statement to Ginsberg during his testimony. Tr. 96-97.
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.
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After he did so, 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.
5
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. 140-141. Wilson told Talavera “don’t touch me,” so
Talavera removed his hand and Wilson then left the office. Tr. 141.10
Diallo testified that on January 30, 2018, he was discussing a cleaning task with
Talavera in his office when Ginsberg and Wilson arrived. Tr. 144. Diallo began to
leave, but Talavera asked him to stay, so he stood in a corner of the office during the
ensuing discussion. Tr. 144. Diallo also testified that Ginsberg began the meeting by 15
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 20
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 co-workers
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 25
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. 30
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 testified 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 threatening me,” “now you’re really fired,” and 35
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 40
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 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. 152-153.45
JD(NY)-10-19

11
Wilson testified that after he left the meeting with Ginsberg, Talavera, and Diallo,
he went back to the annex and said goodbye 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 5
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 testified that there was no difficulty in getting
Wilson to leave the facility after his discharge.12 Tr. 142. No police report was filed, and 10
there was no written record of this incident prepared by Alle. Tr. 126, 141-142, 153.
III. Decision and Analysis
A. Credibility Resolutions15
A decision in this case necessarily involves an assessment of witness credibility.
Credibility determinations require consideration of the witness’ testimony in context,
including factors such as witness demeanor, “the weight of the respective evidence,
established or admitted facts, inherent probabilities, and reasonable inferences drawn 20
from the record as a whole.” Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001), enf’d. 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 recollection, general denials, and 25
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).
30
In making credibility resolutions here, I have considered the witnesses’
demeanor, the context of their testimony, corroboration via other testimony or
documentary evidence or lack thereof, the internal consistency of their accounts, and
the witnesses’ apparent interests, if any.
35
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 meetings with Ginsberg, Talavera and Diallo. Alle contends that Wilson’s 40
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 engaged in protected

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.
JD(NY)-10-19

12
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 meetings with Talavera,
Ginsberg, and Diallo5
As an initial matter, I find that Wilson was engaged in protected activity during his
meetings with Talavera, Ginsberg, and Diallo. It is well-settled that the Act “guarantees
to each employee 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 10
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 authorizations for Local 726, despite Talavera and
Ginsberg’s exhortations, and his protests and arguments against doing so, constituted
protected activity.15
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 directed Wilson to sign a dues checkoff authorization and Wilson
refused. Wilson’s account of his initial meeting with Talavera and Rosenberg on 20
January 30 was detailed, internally consistent, and consonant with the events which
followed. Talavera by contrast provided testimony which was vague, evasive, and
generally less credible overall than Wilson’s testimony on this issue. And although
Talavera testified that his only meetings with Wilson on January 30 were the meetings
with Ginsberg and Diallo present, Talavera also admitted that he had individual 25
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, Talavera, 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 726.30
Alle contends that Wilson’s conduct at the January 30 meetings 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. Post-Hearing Brief at p. 7-8, citing 35
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. 40
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 specifically linked his own

13 In Reynolds Electric, Inc., 342 NLRB 156 (2004), also cited by Alle, the Board “assum[ed] without
deciding that the judge correctly found” 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.
JD(NY)-10-19

13
refusal to execute the dues checkoff authorization to the position of the other
warehouse employees with respect to this issue. Specifically, Diallo testified that
Wilson “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 discussion proceeded Wilson continued “talking about he and his 5
fellows and why they don’t want to sign.” Tr. 146. Diallo’s testimony is also consistent
with Wilson’s unrebutted description of his repeated discussions with his co-workers
regarding Local 726, culminating in the warehouse employees’ initial position that they
would not sign in support of the Union because they could see no benefit to doing so.
Given the foregoing, Wilson’s statements soliciting an individual pay raise or benefit at 10
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, 15
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 20
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 protected 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 25
was provoked by the employer’s unfair labor practices. See, e.g., Postal Service, 364
NLRB No. 62 at p. 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 No. 117 (2014). These four criteria are intended
to permit “some latitude for impulsive conduct by employees” during protected 30
concerted activity, 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
opprobrious to remove it from the protection of the Act.” Meyer Tool, Inc., 366 NLRB
No. 32 at p. 1, fn. 2 (2018), enf’d, 763 Fed.Appx. 5 (2d Cir. 2019).35
Based upon the record evidence, the first, second, and fourth components of the
Atlantic Steel analysis strongly support a conclusion 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 Wilson’s conduct retained 40
the protection of the Act. As a result, the evidence overall establishes that Alle violated
Sections 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 discussion – firmly45
supports a finding that Wilson’s conduct remained protected. It is undisputed that all of
JD(NY)-10-19

14
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 Service, 364 NLRB No. 62
at p. 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 p. 1, 35
(only supervisor and employee/union representative attended the meeting in question);
Plaza Auto Center, Inc., 355 NLRB at 494 (meeting involved employee and
management 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 10
the meetings. Postal Service, 364 NLRB No. 62 at p. 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 p.
1, fn. 2, and at p. 11 (discussion took place in “a separate building” from the facility’s 15
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 employees or
undermined the authority of any of the managers present. Postal Service, 364 NLRB
No. 62 at p. 3; Plaza Auto Center, 360 NLRB No. 117 at p. 7. This component of the
Atlantic Steel analysis therefore militates in favor of a finding that Wilson’s conduct did 20
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 Wilson’s conduct retained its protected character.
As discussed above, there is no dispute that the January 30 meetings addressed 25
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 30
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 35
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 supports a finding
that that conduct retained its protected character. Stanford Hotel, 344 NLRB 558, 559
(2005).
40
The third component of the Atlantic Steel analysis requires a consideration of
“the nature of the employee’s outburst or alleged misconduct.” Postal Service, 364
NLRB No. 62 at p. 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 45
that as a result the third of the Atlantic Steel factors weighs heavily against a finding that
JD(NY)-10-19

15
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 Diallo –
that addressed this issue. I generally found Diallo and Wilson to be the most credible of
the four witnesses. Diallo genuinely appeared to be recounting the meeting to the best 5
of his recollection and providing specific detail to the best of his ability, 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 10
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 15
that his testimony was less reliable overall. Talavera’s testimony, by contrast, was terse,
and he contended 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 admission. 20
It is undisputed that Wilson used profanity and made an obscene gesture during
the January 30 meeting with Ginsberg, Talavera, 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. Diallo testified that Wilson 25
used the word “fucking” repeatedly, including 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 uncorroborated 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 testimony30
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 35
frustration with Talavera and Ginsberg’s exhortations to sign the dues checkoff
authorization. In any event, the Board has repeatedly found that profanity directed
toward management is insufficient to establish that the third component of the Atlantic
Steel analysis weighs against a finding that the employee’s conduct remained
protected. See Plaza Auto Center, 355 NLRB 494-495 (employee’s activity remained 40

14 Wilson testified that at the end of the meeting he told Ginsberg, Talavera, and Diallo, “Fuck all y’all.”
However, for the reasons discussed 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 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.
JD(NY)-10-19

16
protected, despite reference 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, 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), enf’d, 932 F.2d 958 (3d Cir. 1991) (employee called 5
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 evidence regarding the commonplace nature of profanity in a 10
workplace when evaluating the third component of the Atlantic Steel analysis. See,
e.g., Constellium Rolled Products Ravenswood, LLC, 366 NLRB No. 131 at p. 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. Talavera further
admitted that Alle has no rule prohibiting the employees from using profanity, and that 15
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 20
that any of these employees were disciplined in any way for doing so. See, e.g.
Constellium Rolled Products Ravenswood, LLC, 366 NLRB No. 131 at p. 1, 3
(employer’s “general tolerance of profanity in the workplace” belies claim that
employee’s obscene statement “was particularly egregious”). Thus, the evidence
establishes that Alle generally tolerated the warehouse employees’ use of profanity25
without imposing 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 30
responses of the individuals involved in a particular incident. Meyer Tool, Inc., 366
NLRB No. 32 at p. 12; Plaza Auto Center, Inc., 360 NLRB at 974. Specifically, Alle
argues that Wilson threatened Ginsberg based upon Ginsberg’s testimony that Wilson
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; Post-Hearing Brief at p. 5. I 35
do not credit this testimony of Ginsberg’s, however, which was uncorroborated 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 40
will fix this on the street.” Tr. 147. However, this statement does not explicitly 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 himself testified that
during this portion of the conversation, Wilson said, “I don’t have to sign this…I could do 45
this my way.” Tr. 112. Such a remark is more reasonably interpreted as referring to
JD(NY)-10-19

17
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 5
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 issue 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 10
consequences only given employee’s inquiry to a State agency regarding minimum
wage requirements); Meyer Tool, Inc., 366 NLRB No. 32 at p. 5, p. 12, fn. 30
(employee’s statement that human resources 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 15
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 testimony 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 meetings ever bothered to prepare 20
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 25
assault Ginsberg with a carousel containing individual servings of ground coffee and
creamer. Post-Hearing Brief at p. 11-12. As discussed below, I credit Diallo and
Talavera’s testimony that Wilson grabbed or placed his hand on the coffee carousel,
and that Talavera placed his hand over Wilson’s while Diallo and Talavera moved
between Wilson and Ginsberg. However, the weight of the evidence establishes that 30
Ginsberg discharged 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 p. 10 (2019), citing Ridgeway
Trucking Co., 243 NLRB 1048, 1048-1049 (1979), enf’d. in relevant part 622 F.2d 1222,
1224 (5th Cir. 1980) (supervisor’s statement that employee was “not needed anymore” 35
sufficient to constitute a discharge). Instead, it suffices that “the words or actions of the
employer would logically lead a prudent person to believe his tenure had 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 from the employee’s perspective. Johnston Fire Services, LLC, 367 NLRB 40
No. 49 at p. 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 45
placed his hand on the coffee carousel. Wilson’s account of Ginsberg’s statements
JD(NY)-10-19

18
immediately after Wilson raised his middle finger varied on direct and cross-
examination. See Tr. 59-60, 89-91. However, both versions 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 testified that after
he gave Ginsberg “the finger,” Ginsberg stated that he was discharged. Tr. 89-91. This 5
testimony was corroborated by Talavera, who testified that immediately after Wilson’s
obscene gesture, Ginsburg stated that Wilson had “crossed the line,” that his behavior
was “insubordinat[e] and disrespectful, and he was being terminated.” Tr. 135-136.
This language clearly conveys that Wilson was discharged. On direct examination,
Wilson testified that Ginsberg responded to “the finger” by stating, “Now I have a reason 10
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 responded, “Now, you’re threatening me…now 15
you’re really fired.” Tr. 147. Diallo testified that it was only after that exchange 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
20
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 employment status based on
Talavera and Ginsberg’s statements. Furthermore, Wilson had never interacted with 25
Ginsberg before, and therefore had no previous experience with his use of language.
Ginsberg was a manager who handled the company’s human 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 equivocal
statements as indicating that Ginsberg was discharging him for insubordination. In any 30
event, because the evidence demonstrates that Wilson was discharged before touching
or grabbing the coffee carousel, that action is appropriately addressed pursuant to the
standard for evaluating post-discharge conduct, as opposed to within the third
component of the Atlantic Steel analysis.
35
For all of the foregoing reasons, the record evidence establishes that the third of
the Atlantic Steel factors militates in favor of a conclusion that Wilson’s conduct at the
January 30 meetings retained the Act’s protection.
The fourth of the Atlantic Steel criteria – whether the outburst was provoked by 40
the employer’s unfair labor practices – significantly supports a finding that Wilson’s
conduct did not lose the protection of the Act. Indeed, the entire scenario in which
Wilson’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

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.
JD(NY)-10-19

19
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 5
the dues-checkoff authorization method of fulfilling financial obligations to their union is
compulsory.” Comau, Inc., 358 NLRB at 596; see also Rochester Mfrg. Co., 323 NLRB
260, 262 (1997), enf’d, 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 (employer violated Section 8(a)(1) when 10
Human Resources Manager called employee into his private office, questioned
employee regarding 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 262-263 (employer violated Section 8(a)(1) by “conditioning
employment on the execution of checkoff authorization forms”). 15
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 20
during this meeting Talavera directed Wilson to sign a dues checkoff authorization, and
Wilson refused. Furthermore, Wilson’s supervisor Chaim Rosenberg, who according to
Wilson was also present at the initial January 30 meeting 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 25
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 Talavera
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 Talavera 30
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 Ginsberg, ultimately with Diallo present. Ginsberg freely admitted 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 35
dues checkoff authorization,17 and that Wilson refused, at least initially, to do so. This
overall sequence of events – with Wilson subjected to mandatory meetings with

16 These statements attributed to Rosenberg by Wilson are not included in Wilson’s affidavit prepared
during the investigation of the charge. However, in that Wilson’s testimony is unrebutted in this respect, I
find it credible. See Coserv Electric, 366 NLRB No. 103 at p. 3, fn. 7, and at p. 8 (2018) (crediting
unrebutted witness testimony despite demeanor issues and conflicts between witness’s testimony and
affidavit).
17 The evidence does not establish that Ginsberg merely explicated the union security clause during the
meeting; the weight of the credible evidence 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.
JD(NY)-10-19

20
managers of increasing authority who repeatedly demanded that he sign a dues
checkoff authorization despite his protestations – constituted coercive behavior on the
part of Alle under the pertinent caselaw. The evidence 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 5
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 Ravenswood, LLC, 366 NLRB No. 131 at p. 3, fn. 14.
10
The evidence also establishes that, independent of the meetings’ 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
potentially 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 15
exchange as it unfolds, and that conduct’s potential impact. See, e.g., Meyer Tool, Inc.,
366 NLRB No. 32 at p. 1 fn. 2, and at p. 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) (employee
provoked when chief operating officer told him to “shut up”); Plaza Auto Center, Inc., 20
355 NLRB at 493-495 (manager provoked employee by failing to respond to employee’s
concerns and repeatedly telling employee that “he did not need to work there”); Burle
Industries, 300 NLRB at 504 (employee provoked by belief that supervisor “was making
light of what he viewed as a grave situation”). The Board also addresses any
surrounding events pertinent to the specific issue being discussed when the outburst 25
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).30
The record evidence here establishes that Wilson was a primary 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 35
726 had notified Alle in writing that it intended to enforce its union security clause with
respect to Wilson, 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 stating, “are you kidding, you want more vacation, what do you want me to do?”18 Tr. 40

18 Ginsberg referred to these comments as “a joke” on direct examination, 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 Alle, “at its discretion, may grant individual merit increases in addition to” the contract wage
rates. R.S. Ex. 2, p. 17.
JD(NY)-10-19

21
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 Ginsberg 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 that5
Wilson was acquiescing in signing the dues checkoff authorization – 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 10
immediately at that point. Wilson, Talavera, Ginsberg, and Diallo all testified that Wilson
responded to Ginsberg’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 attempted to joke around or “jest” regarding Wilson’s terms and conditions of 15
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 20
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 finding that Wilson’s conduct remained protected
under the Act. The third factor in the Atlantic Steel analysis also militates in favor of a 25
finding that Wilson’s conduct retained the Act’s protection. As a result, Wilson’s conduct
remained protected, and Alle violated Sections 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 30
his post-discharge 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 35
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
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 40
testimony that Wilson was “in the middle of throwing” the coffee carousel when Talavera
and Diallo interceded. The record does not establish 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

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.
JD(NY)-10-19

22
or grabbed the coffee carousel, Talavera placed his hand over Wilson’s, telling him, “Be
smart,” and Talavera 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 immediately. Finally, Wilson testified that after Ginsberg fired him, he
told the managers, “Fuck all y’all. Y’all think I need this job.” 5
General Counsel argues in his Post-Hearing 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 relevant to Respondent’s liability for the unfair labor practices
alleged. However, the Board routinely addresses post-discharge conduct potentially 10
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), enf’d, 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 15
the same sequence of events as the allegedly unlawful discharge itself.
The Board has recognized that evaluating post-discharge employee 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 20
vehemence to an unlawful discharge.” Hawaii Tribune Herald, 356 NLRB at 662,
quoting Trustees of Boston University, 224 NLRB 1385, 1409 (1976), enf’d. 548 F.2d
391 (1st Cir. 1977). It is therefore well-settled that in order to obviate the reinstatement
and backpay obligations engendered by an unlawful discharge, the employer must
demonstrate that the employee’s post-discharge conduct was “so flagrant as to render 25
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, Inc., 179 NLRB 398,
405 (1969). As the Board has noted, denial of reinstatement is appropriate only in
“extraordinary situations,” such as a death threat, intentionally striking a supervisor with
an automobile, and threatening to “report a probation violation in order to influence a 30
witness’s testimony during a Board hearing.” Fund for the Public Interest, 360 NLRB at
877, quoting Timet, 251 NLRB 1180, 1180-1181 (1980), enf’d.671 F.2d 973 (6th Cir.
1982), and collecting cases.
Two cases involving an employee’s physical conduct toward management35
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 Respondent’s Assistant
Director of Nurses “became very upset” after her unlawful discharge, and “begged” the
Assistant Director to “rescind” it. 320 NLRB at 552. When the Assistant Director40
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 ALJ, affirmed by the Board, concluded that the
employee’s attempted assault was a “spontaneous response…clearly provoked” by the45
unlawful discharge, and therefore did not warrant forfeiture of the typical reinstatement
JD(NY)-10-19

23
and backpay remedies. See Casa San Miguel, 320 NLRB at 534, n. 2, and at 557; see
also Fund for the Public Interest, 360 NLRB at 877. In Family Nursing Home, by
contrast, the Board affirmed the ALJ’s conclusion that unlawfully discharged employee
Marilyn Holland forfeited reinstatement and backpay remedies based upon the following
conduct toward Director of Nursing David Fisher:5
…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 protesting her discharge. Fisher picked 10
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, exclaiming that no
one was going to make any “fucking calls to the police on this phone.” 15
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.20
295 NLRB at 923, n. 2, 926, 927, 928, 931. The Board affirmed the ALJ’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, n. 2, citing Carthage Fabrics
Corp., 101 NLRB 541, 553-555 (1952) (employee who struck supervisor “in the face 25
with his fists” after discharge forfeited reinstatement and backpay); Stein-Way Clothing
Co., 131 NLRB 132, n. 2 (1961) (employee denied reinstatement and backpay where
she physically assaulted a co-worker immediately after discharge).
The situation at issue here strongly evokes the rationale which informs the 30
Board’s standard for evaluating post-discharge conduct, the leeway afforded to
employees for spontaneous, impassioned responses to an unlawful discharge.
Specifically, the evidence indicates that Ginsberg’s discharge of Wilson precipitated
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 35
insubordinate and disrespectful behavior that Wilson got “all bent out of shape, upset,”
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 escalating
sequence of emotionally charged statements and behaviors, with Wilson, placed in a 40
coercive situation involving issues with which he had a history of advocacy on behalf of
the warehouse 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

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.
JD(NY)-10-19

24
his unlawful discharge, and not a deliberate or premeditated attempt to intimidate
Ginsberg, Talavera or Diallo. Casa San Miguel, 320 NLRB at 557. Furthermore,
Wilson’s post-discharge behavior – grabbing the coffee carousel and cursing – is of a
qualitatively different 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 5
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, n. 2, 557. In addition, there is no
evidence that Wilson had a history of violent or intimidating conduct.21 Indeed, there is 10
no evidence that Wilson had any disciplinary history 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 contention that Wilson’s
behavior constituted a deliberate threat of violence or attempt at intimidation. As a
result, I find that Wilson’s post-discharge conduct here was not sufficiently flagrant “as 15
to render [Wilson] unfit for further service, or a threat to efficiency in the plant” under the
applicable caselaw.
For all of the foregoing reasons, I find that Wilson did not forfeit his eligibility for
reinstatement and backpay by virtue of his post-discharge conduct on January 30.20
CONCLUSIONS OF LAW
1. Alle violated Sections 8(a)(3) and (1) of the Act by discharging Traverse Joel
Wilson on January 30, 2018 at the behest of a labor union for refraining from becoming 25
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.
30
REMEDY
Having found that Alle has engaged in an unfair labor practice, I shall order it to
cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.35
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 authorization, I shall order Respondent to offer Wilson reinstatement and
make him whole for any loss of earnings and other benefits. Backpay shall be 40
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

21 Wilson testified without contradiction that the sole physical altercation he had at Alle occurred when
another employee assaulted him between the facility gate and the parking lot after he confronted the
employee 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.
JD(NY)-10-19

25
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), enf’d. in relevant
part, 859 F.3d 23 (D.C. Cir. 2017). Alle shall further compensate Wilson for the adverse 5
tax consequences, 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
remove 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 10
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 wherever notices to employees are regularly posted for 60 days without 15
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 p. 13-14 (2018). In the event that, during the pendency of these 20
proceedings, Alle has gone out of business or closed the facility involved herein, Alle
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Alle at any time since January 30,
2018.
25
The Consolidated Complaint also seeks an order requiring that a representative
of Alle read the notice to employees in English and Spanish during work time, or to
allow a Board agent to do so in the representative’s presence. It is unclear from
General Counsel’s Post-Hearing Brief and the Settlement Agreements resolving the
allegations with respect to the recognition and execution of a collective bargaining 30
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 directly affecting the entire bargaining unit and/or did so in a
particularly public manner. See, e.g., El Super, 367 NLRB No. 34 at p. 1 (2018); 35
AdvancePierre Foods, Inc., 366 NLRB No. 133 at p. 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 recommended2240

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(NY)-10-19

26
ORDER
The Respondent, Alle Processing Corp. d/b/a Meal Mart, Maspeth, New York, its
officers, agents, successors and assigns, shall
5
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 declining to sign a dues
checkoff authorization.10
b. In any like or related manner restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the 15
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 20
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.25
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 30
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.
35
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 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 electronic 40
form, necessary to analyze the amount of backpay due under 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 45
JD(NY)-10-19

27
that this has been done and that the discharge will not be used against him in
any way.
g. Within 14 days after service by the Region, post at its facility in Maspeth, New
York copies of the attached notice marked “Appendix.”23 Copies of the notice, 5
on forms provided by the Regional Director for Region 29, after being signed
by Alle’s authorized representative, shall be posted by Alle 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 paper
notices, the notices shall be distributed electronically, such as by email, 10
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 material. In the event that, during the
pendency of these proceedings, Alle has gone out of business or closed the 15
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 20
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 comply.
Dated:Washington, D.C., June 19, 2019
25
Lauren Esposito
Administrative Law Judge

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.”
JD(NY)-10-19

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge you 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.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL 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.
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 consequential 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 agreement
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.
JD(NY)-10-19

ALLE PROCESSING CORP. d/b/a MEAL MART
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center, Fifth Floor, Brooklyn, NY 11201
(718)330-7713, Hours: 9:00 a.m. to 5:30 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 765-6190.