AFL Web Printing

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2012

22-CA-029494 (N.L.R.B. Mar. 27, 2012)

JD(NY)–06–12
Secaucus, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
AFL WEB PRINTING
and Case 22-CA-29494
LOCAL ONE-L AMALGAMATED LITHOGRAPHERS
OF AMERICA, GCC/IBT
Tara Levy, Esq. and Laura Elrashedy, Esq. of Newark,
New Jersey for the General Counsel.
Robert M. Vercruysse, Esq., with Gary S. Fealk, Esq. on
the brief, (Vercruysse Murray and Calzone, PC)
of Bingham Farms, Michigan for the Respondent.
David I. Cann, Esq. (Kennedy, Jennik & Murray PC) of
New York, New York for the Charging Party.
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge. Pursuant to charges and amended charges filed
by Local One-L Amalgamated Lithographers of America, GCC/IBT, herein called the Union, on
various dates between June 17 and September 28, 2010,1 the Director for Region 22 issued a
complaint and notice of hearing on January 28, 2011, alleging that AFL Web Printing, herein
called Respondent, violated Sections 8(a)(1) and (3) of the Act by threatening its employees
with plant closure if they selected the Union as their collective bargaining representative and by
laying off six employees, Kevin Cole (Cole), Robert Mattei (Mattei), Joseph Wallace (Wallace),
Christopher Amato (Amato), Henry Ball (Ball) and Richard Fego (Fego), because these
employees assisted the Union and engaged in concerted activities, and to discourage
employees from engaging in these activities.
The trial with respect to the allegations raised in said complaint was held before me in
Newark, New Jersey on May 2, 3, 4 and 5, 2011.
Briefs have been filed by General Counsel and by Respondent and have been carefully
considered. Based upon the entire record, including my observations of the demeanor of the
witnesses, I make the following:
Finding of Facts
I. Jurisdiction and Labor Organization

1 All dates, hereinafter referred, are in 2010 unless otherwise indicated.
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Respondent is engaged in the business of commercial printing at a facility in Secaucus,
New Jersey.
During the twelve months preceding the issuance of the complaint, Respondent provided
printing services valued in excess of $50,000 directly to customers located outside the State of
New Jersey, including the Village Voice.
Respondent admits, and I so find, that it is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. Respondent’s Operations
Respondent was previously owned by the Forchic Family with Dennis Forchic as its
president and chief operating officer.
Initially, Respondent operated out of a facility in Voorhees, New Jersey. In 2007,
Respondent opened an additional facility in Secaucus, New Jersey and purchased a new DGM
printing press. Respondent invested heavily in the huge state of the art press for the Secaucus
facility. It took six to nine months to install the presses. The Secaucus facility first began running
jobs in the beginning of 2008.
James Hager (Hager) was employed by Respondent as its vice-president of operations
since 2001. Susan Cohen (Cohen) was Respondent’s director of human resources in 2009 and
2010 and was promoted to vice-president of human resources in December of 2010. Ken
Rittereiser was employed as Respondent’s operations manager of its Secaucus facility since
October of 2007.
During the installation of the DGM press, which, as noted, took from six to nine months,
the installation team from DGM included Chip McNair, Mike Valentine and Ken Kanniard.
Respondent hired Valentine and McNair as admitted supervisors and Kanniard as a
trainer.2
In late February of 2010, Respondent was sold to a group of investors, but Forchic
stayed on as president until July of 2010 when the new owners turned control of the company to
CGD, a restructuring company. Hager stayed on as vice-president of manufacturing, but after
July of 2010 reported to various individuals employed by CGD.
III. The Status of Kanniard
As noted above, Kanniard has previously been employed by DGM as a mechanic and
while employed by DGM helped to install the press purchased by Respondent from DGM at
Respondent’s Secaucus facility. Sometime in 2009, Rittereiser recommended that Respondent
hire Kanniard as a trainer because the new equipment was expensive and complicated and he
felt that it would be beneficial for Respondent to utilize Kanniard’s skills and experience in
installing and operating the DGM press to increase the productivity and technical skills of

2 Respondent admits that Kanniard was promoted to supervisor on October 5, 2010. The
complaint alleges that Kanniard has been an agent of Respondent since November of 2009 and
a supervisor since June of 2010. His status will be discussed more fully below.
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Respondent’s employees.
Kanniard subsequently had a phone interview with Forchic during which Kanniard
agreed to become an employee of Respondent as a trainer at a salary of $72,000 per year as
an exempt employee. Since Kanniard lived in Saratoga Springs, New York and did not want to
move his family, he negotiated with Forchic an agreement that Respondent would pay for an
apartment for him for one year that he might have to share with another employee in the
Secaucus area. The terms of his employment were confirmed by letter dated September 29,
2009 from Cohen and he started work for Respondent on October 2, 2009.
Shortly thereafter, Respondent also hired McNair and Valentine, who had also been
DGM employees and who also had some involvement in the installation of the presses.
Valentine had been employed as a supervisor at DGM, and he was hired by Respondent as the
plant manager at Secaucus. McNair had been employed by DGM as an installer, but
Respondent hired him as a pressroom supervisor. McNair and his family lived in Kentucky, so
McNair, as part of his compensation package with Respondent, was able to obtain
Respondent’s agreement to pay for a shared apartment for him for one year. Since McNair and
Kanniard knew each other as fellow employees at DGM, McNair shared the apartment, paid for
by Respondent, with Kanniard.
There is no record evidence that Respondent paid for the apartment for any other of its
employees. It is also undisputed that employees of Respondent were aware of this living
arrangement between Kanniard and McNair.
Kanniard, as noted, was hired as a “trainer.” The job description for that position is set
forth in full as follows:
JOB TITLE: PRESSROOM TRAINER
DEPARMENT: PRESSROOM
JOB CATEGORY: EXEMPT
GENERAL DESCRIPTION:
The Pressroom Trainer is responsible to help develop AFL’s pressroom staff
under the guidelines of the AFL Technical Training Manual. This is a “Hands on”
position with the expectation that the position will actively participate in daily
production and maintenance activities while helping to train other pressroom
personnel.
FUNCTIONS:
In executing his/her responsibilities, they will be expected to perform the
following functions, as well as other tasks, which may be assigned.
RESPONSIBILITIES:
 Have a complete understanding of policies and procedures as outlined
[in] the AFL Technical Training Manual.
 Perform on the job training of pressroom personnel in accordance with
AFL technical training Manual.
 Offer input on ways to improve our training policies.
 “Hands on position” The Pressroom Trainer will be expected to actively
participate in daily production.
 Perform press preventative maintenance as required.
 Train other pressroom personnel to properly perform preventative
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maintenance tasks.
 Documentation of all PM as required by Pressroom Manager.
 Weekend coverage required.
 Understand and insure AFL quality control processes are met.
 Meet and exceed AFL’s benchmarks for waste, throughputs and quality.
 The cleanliness and orderliness of all areas and equipment.
 Maintains a safe work environment and understands and maintains
OSHA, EPA and equipment safety requirements.
 Cooperates fully with all other departments at AFL Web Printing.
QUALIFICATIONS:
 Knowledge and Experience
o Minimum 1 year in a lead operator capacity.
o Ability to run all AFL printing equipment.
o Ability to troubleshoot printing problems and minor mechanical
and electrical issues on all presses and ancillary equipment.
o Knowledge of proper press preventative maintenance techniques.
o Knowledge of SNAP quality specifications.
o Ability to communicate knowledge to other pressroom personnel.
Reporting Relationships
 Position Reports to: Directly reports to shift Supervisor. Pressroom
Manager to provide guidance with training implementation.
The record is essentially undisputed that Kanniard performed the functions detailed in
the above description, which consisted primarily of training employees in the use of the DGM
presses as well as on the preventative maintenance of these machines.
Richard Fego testified that at a meeting, on an unspecified date shortly after Kanniard
was hired, Forchic introduced Kanniard to the employees as a trainer supervisor. According to
Fego, Forchic explained to the employees that Kanniard would be training new employees and
setting up a maintenance program.
I do not credit Fego’s testimony to the extent that he asserted that Forchic introduced
Kanniard to employees as a trainer supervisor at a meeting. Kanniard credibly denied that
Forchic introduced him as a trainer supervisor at a meeting or at any time. Significantly, a
number of different witnesses for General Counsel testified about meetings held by Forchic in
November of 2009, in which the Union was discussed among other issues. Some of these
witnesses also testified to comments made by Kanniard at these meetings3 and also mentioned
that Forchic introduced Kanniard at one of the meetings to the employees. More significantly,
none of these employees corroborated Fego’s testimony that Forchic introduced Kanniard as a
trainer supervisor. Further, I find it unlikely that Forchic would introduce Kanniard as a trainer
supervisor. His job description makes no reference to a title of supervisor nor of any supervisory
responsibilities for Kanniard. There is no other record evidence that any of Respondent’s
officials considered Kanniard to be a supervisor.
Based on the foregoing, I do not credit Fego’s testimony as to this issue and conclude

3 The substance of the comments made by Forchic and Kanniard at these meetings
concerning the Union will be discussed more fully below.
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that Forchic introduced Kanniard to employees as a trainer, and that is the position that he held
and that Respondent considered him to hold until he was promoted to supervisor on October
23, 2010.
In addition and often in connection with his responsibilities to train employees, Kanniard
would at times operate the presses. He would do so in the process of showing employees how
to operate the presses by having them observe him doing so and then observing and correcting
the employees when they operated the press.
At other times, if employees were out sick or for other reasons, Kanniard would be asked
by supervisors to fill in and operate the presses for the entire day. Similarly, other admitted
pressroom supervisors, such as Doug Metz, Brad Fredericks and Dan Johnson, would also fill in
and operate a press when someone was out from work.
In connection with Kanniard’s responsibility for training employees on maintenance
functions vis a vis the presses, a lot of that work took place on weekends when the presses
were not operative. In that connection, it was often necessary to pay employees overtime to
work on weekends. Respondent did not require any employees to work overtime and overtime
was strictly on a voluntary basis. The procedure followed generally was that Respondent posted
a list of available overtime, and employees would sign up if they were interested. These were
times, however when despite this list, it was necessary for management to ask employees if
they were interested in working overtime, particularly on weekends. Prior to Kanniard’s hire, this
task would be performed by various supervisors, such as Deska, Fredericks, Johnson and Keith
Whitmoyer.
After Kanniard was hired, at time, he would ask employees if they were interested in
working overtime, and other times, the above named supervisors, when they were still
employed by Respondent, would ask employees to work overtime. In this regard, Perez credibly
testified that sometimes Kanniard would go around with a piece of paper asking employees to
sign up for overtime. On other occasions, Kanniard would hand Perez a piece of paper, ask
Perez to try to obtain signatures for whatever amount of employees that Kanniard needed to
work that weekend. In those situations, Perez would comply with Kanniard’s instructions and
would take the list to employees, ask them if they were interested in working overtime and
inform them that Kanniard was asking them if they were available for the overtime.
Additionally, in this regard, since the number of employees coming in on weekends was
determined, Kanniard would decide the specific times that each employee would come in and
so informed each employee of the particular hours that they would be needed on the weekends.
On these weekends, Kanniard had the keys to the facility and a key card with the alarm
code, which was necessary to open the building. The employees did not have the alarm code
and could not open the facility.
With respect to the maintenance work in general, Kanniard recommended to
Respondent’s officials, Rittereiser and McNair, that Respondent institute a new system of
equipment maintenance, which Kanniard believed would be more efficient than the way it was
being done. Rittereiser and McNair agreed with Kanniard’s recommendations in this regard, and
the system was instituted shortly after Kanniard become employed.
During this tenure as a trainer, Kanniard would occasionally assign work to the
employees, although, primarily these tasks were performed by supervisors, such as Deska,
Metz, Johnson, McNair and Fredericks. However, there were times that Kanniard would instruct
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an employee to stop a job that he was performing and go over to another press to help when
Kannaird believed that help was needed at the presses. These functions would also be
performed by the supervisors of Respondent, described above.
Employee Edwin Valentin testified that he believed Kanniard was a supervisor because
he (Valentin) would go to Kanniard if he needed to leave early or if he needed work
assignments. Valentin further testified that he would also go to supervisor Metz or Deska for
similar instructions or permission to leave early.
When employees worked overtime, as described above, on weekends or otherwise, they
were paid overtime, and they punched in and out to record their time on all occasions. Kanniard,
as an exempt employee, did not punch a time card, worked on a straight salary and was not
paid overtime. Kanniard did not have a set schedule and usually worked as much as seven
days a week and averaged 100 hours a week.
Kanniard shared an office with operation manager Rittereiser and pressroom manager
McNair, where he was responsible for preparing various kinds of paperwork, including signing
off on press documents as well as training documents. In the latter regard, Kanniard distributed
a self-evaluation form to employees, which he asked them to fill out and which he used to assist
him in his training assessments.
Shortly after Kanniard first came to work for Respondent in 2009 and after observing the
work of Edwin Valentin, Kanniard informed Valentin that he recognized Valentin’s work ethics
and stated that Valentin had the potential to move up from his then-current position as roll
tender to second pressman. Kanniard added that he would put in a recommendation for
Valentin if needed.4
A number of employees referred to Valentine, McNair and Kanniard as the “three
amigos.” This nickname for these three individuals was commonly referred to by the employees
because they were always together at work, hung out together after work, ate lunch together
and went to the movies together. According to some employees, they seemed to be “connected
at the hip.” In this connection, the employees were aware that all three of them formerly worked
together at DGM, had helped to install the DGM presses at Respondent and that McNair and
Kanniard shared an apartment.
Finally, employee Hector Perez injured his knee at work and went on workmen’s
compensation on April 7, 2010. At that time, Keith Whitmoyer asked Perez if he would forgo
going out on compensation and perform light duty. However, the alleged light duty that
Whitmoyer offered to Perez (stacking) was not light duty, according to Perez, and he so
informed Whitmoyer.
During the approximately one month that he was out, Perez received a phone call from
Kanniard. Kanniard asked Perez how his therapy was coming along and how he felt. Kanniard
also asked when Perez would be coming back to work. Perez replied that he would be returning
to work then his doctor released him. Kanniard then informed Perez that Whitmoyer and McNair
were upset that Perez has not returned to work. Perez answered that he can’t be concerned if
they were upset or not because he was following his doctor’s orders.

4 The record contains no evidence whether or not Kanniard ever made such a
recommendation to Respondent.
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My findings, detailed above, concerning the status of Kanniard is based on a compilation
of credited portions of the testimony of Perez, Fego, Valentin, Amato, Cole, Ball, Kanniard and
Rittereiser. While much of these findings are not disputed, there are some inconsistencies
between the testimony of the employees and Kanniard in a few areas. To the extent that the
record reveals such discrepancies, I credit the testimony of the employees. I found the
employees’ testimony in general to be consistent and corroborative and believable. I was not
overly impressed with Kanniard’s credibility, and as will be detailed below concerning his
alleged statements to employees with respect to the union and possible retaliation against
employees, I credit the employees’ testimony over Kanniard’s unconvincing denials. Similarly
here, where his testimony conflicts with that of employees concerning Kanniard’s status, I credit
the employees.
For example, although Kanniard unequivocally denied that he shared an office with
McNair and/or Whitmoyer and Rittereiser or that he had his own desk in that office, this
testimony was contradicted not only by the mutually corroborative testimony of several
employees,5 but by the testimony of Respondent’s witness, Rittereiser, who admitted that
Kanniard, while serving as a trainer, had his own desk in the same office as McNair.
I have also considered the fact, as argued by Respondent, that there was some
inconsistency between Perez’s testimony on direct examination and on rebuttal concerning
whether the issue of light duty was specifically brought up during his conversation with Kanniard
in April of 2010 when Kanniard asked Perez when he would be returning to work. Nonetheless, I
credit Perez’s updated version of the conversation, as I have detailed above. I find it likely that
the confusion about whether light duty was brought up during the conversation was due to the
fact that Whitmoyer and Perez had differed over the definition of light duty offered to Perez
previously by Whitmoyer and that Kanniard had informed Perez that Whitmoyer was upset that
Perez had not retuned to work earlier. I credit Perez over Kanniard’s testimony that he never
called Perez to ask him to return to work, but rather that Perez had called Kanniard to ask about
light duty. I also note in this regard that Whitmoyer was not called as a witness to corroborate
Kanniard’s testimony in this regard nor to refute Perez’s testimony that Whitmoyer had offered
him light duty.
IV. The Union Campaign and Respondent’s Reaction
Richard Fego was employed by Respondent since October of 2008 as a second
pressman. He was part of a “press crew,” which at Respondent consisted of one first or lead
pressman, two second pressmen, a roll tender and one or two stackers.
In August of 2009, Fego as well as other members of Fego’s crew discussed their
dissatisfaction with various working conditions at Respondent, including extremely hot
temperatures, lack of air conditioning, failure to provide employees lunch breaks and that
Respondent put employees at risk by allowing chemical containers to remain open and rags
soaked with chemicals to remain out. Fego and other employees also complained to their
supervisors about these conditions. One of Fego’s co-employees on his crew was the other
second pressman, Kevin Cole. During one of their conversations about their dissatisfaction with
these working conditions, Cole asked Fego if there was anything the employees could do to
improve their working conditions. Fego, who had been a union member at a previous job,
replied that employees should try to form a union. Cole responded “Yeah, let’s call the union.”

5 Perez, Fego, Cole and Valentin.
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However, Fego, who was a relatively new employee, was not sure if Cole was serious or
not, so he did not make any attempt to contact a union.
About a week later, Cole asked Fego again about calling in a union. Fego, at that point,
said that he would make a few calls.
In September of 2009, Fego telephoned Mike Doklia, an organizer for Local 1, whom
Fego had known when Fego was a member of that union at a prior job. In fact, Fego still had
Doklia’s card. Fego informed Doklia that some employees of Respondent were interested in
organizing a union. Doklia met with Fego outside Respondent’s premises and gave Fego union
literature to distribute to employees. Doklia also began handing out union literature himself to
employees in the driveway of Respondent’s premises.
Thereafter, Fego would pass out union literature to employees as well as inform them of
upcoming union meetings. Fego was Doklia’s primary contact at Respondent’s facility as the
campaign progressed.
The first meeting held by Doklia and employees of Respondent was on October 20,
2009 at a pizza restaurant near Respondent’s facility. Present were Doklia, another union
representative, Fego and employee Pedro Puntiel. Doklia explained the process of unionization
and that it would be necessary for employees to sign authorization cards. After questions were
asked by Puntiel and answered by Doklia, the employees were asked if they were interested in
signing a union card. They both agreed, and both Puntiel and Fego signed cards at that time.
Thereafter, Puntiel became another of the Union’s contacts at Respondent’s facility.
After this meeting, Fego informed Cole that Doklia had told him and Puntiel that the
Union needed to start obtaining signed authorization cards from employees. Fego added that
Doklia had advised that the Union needed to obtain signatures from 70% of the employees.
Cole told Fego that he was interested in getting involved and wanted to sign a card. Fego,
therefore, set up a meeting with Doklia on November 4, 2009. The meeting was supposed to
take place at the same pizza restaurant where Doklia had met with Fego and Puntiel in October,
but the restaurant was closed. As a result, Fego, Cole and Doklia met in the parking lot of the
pizzeria. Cole asked some questions of Doklia, which were answered, and he gave Cole an
authorization card to sign. Cole signed it and returned it to Doklia. At that time, Doklia gave Cole
and Fego blank cards to distribute to other employees and union literature to give out as well.
Thereafter, over the next several months, Fego and Cole would talk to their fellow
employees about the Union, attempt to get signed authorization cards for the Union, and/or
distribute literature to employees. Fego would pass out union literature to employees before
work, after work or, at times, during work. He admitted that he would try to hand out literature in
a way that supervisors could not observe what he was doing. While Fego did discuss signing
cards with co-employees, he did not distribute any cards to employees.
Cole, on the other hand, both distributed and obtained signed authorization cards from
some employees. The record does not reflect, which or how many signed cards Cole obtained
nor the dates that he did so. Nor does the record contain any direct evidence that any
supervisor observed or was present when he obtained these cards from employees.
During November and December of 2009, Doklia held several union meetings with
employees of Respondent at various locations, including the Tick-Tock Diner and Legends
Diner in Clifton, New Jersey and the Red Robin Restaurant, also in Clifton, New Jersey.
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In mid-November, Doklia met at the Tick-Tock Diner with Fego, Cole, Puntiel and about
seven to ten other employees. At that meeting, the employees asked questions, Doklia
answered the questions, explained the unionization process and the necessity for obtaining
signed authorization cards from employees. Doklia gave out cards to the employees, and all of
the employees present, who had not previously signed union cards, signed cards at that
meeting.6
The day after this meeting at the Tick-Tock Diner, second shift supervisor Brad
Fredericks approached Fego as Fego was walking off the floor. Fredericks asked “How the
union meeting went at the Tick-Tock?” Fego ignored the question and walked away.7
A few minutes later, Fredericks approached Cole and asked him, “How was the union
meeting at the Tick-Tock Diner last night?” Cole responded “I don’t know what you are talking
about.” Fredericks retorted “Oh, look. It’s on your face.” Cole answered “I don’t know what you
mean.” Fredericks made no further comments, and the conversation ended.
The Union also conducted meetings in early December at the Tick-Tock Diner, Legends
Diner and Red Robin. Henry Ball was employed by Respondent as a stacker on February 24,
2008. After seven months, he was promoted to a roll tender position. Kevin Cole informed Ball
that employees were interested in bringing in a union to Respondent, and Ball responded that
he liked the idea of having a union to protect the employees. Thereafter, Ball attended several
union meetings after being informed about these meetings by Cole. At a meeting at the Tick-
Tock Diner on December 9, 2009, Ball signed an authorization card for the Union.
Robert Mattei was first employed by Respondent in February of 2008 as a lead
pressman. He carpooled to work with Cole and attended several of the union meetings in
December of 2009 and thereafter in 2010. Mattei signed an authorization card at a meeting at
the Tick-Tock Diner on December 10.
On the morning after the December 10, 2009 meeting, Fredericks approached a group
of employees, including Mattei, Cole, Ball, Norm Sanchez and Al Kowalen. Fredericks asked the
group of employees, “How did the meeting at the Tick-Tock Diner go?” No one responded to
Fredericks’s inquiry.
Joseph Wallace began his employment with Respondent on January 26, 2009 as a
second pressman. Wallace, previous to his employment with Respondent, had over 30 years
experience in the printing industry, including serving as a first pressman, supervisor and
manager. Wallace’s position immediately prior to becoming employed by Respondent was at
Vanguard Media LLC, where he was employed as a manager until late-2008 when the company
moved upstate and laid off Wallace and other employees. He was interviewed by Whitmoyer
before being hired by Respondent, wherein Wallace informed Whitmoyer of his experience,
including his managerial experience at Vanguard Media. Wallace worked on the third shift,
usually 7:00 pm to 7:00 am.
Wallace was first approached about joining the Union in August or September by Pedro
Puntiel. Puntiel asked Wallace what he thought about unions. Wallace asked which one. Puntiel
answered Local One. After further discussion between Puntiel and Wallace about unions and

6 As noted above, Cole, Fego and Puntiel had already signed union cards prior to this
meeting.
7 Fredericks was, as noted, the second shift supervisor. Fego worked the first shift.
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unionization, Wallace opined that he thought it would be a better idea if the employees try to talk
to management directly.
During September of 2009, Wallace had several discussions with a number of his co-
workers, including Richard Fego, Craig Amato, Mike Gogates, Hector Perez, Henry Ball and
Rodney Carter about various working conditions that they were unhappy about, including safety
problems, heat concerns and management issues. During these discussions, several of the
above named employees talked about organizing a union to resolve these problems. Wallace
and Carter argued to try to talk to management about these and other concerns that the
employees might have and see if they could come to some type of an agreement without
involving a union just yet. Accordingly, Carter and Wallace met with their fellow employees,
received suggestions from them dealing with their concerns and developed a powerpoint
presentation to present to Respondent.
Wallace subsequently contacted both Brent Woodman and Susan Cohen and asked to
meet with management to discuss issues of concern to employees in order to avoid the union
coming in to Respondent’s facility. Wallace received approval from Woodman to have the
meeting as he suggested.
Wallace sent an email to Woodman on October 16, 2009 confirming the meeting, which
reads as follows:
Brent,
I spoke to Sue Cohen today by her invitation and I am looking forward to this
meeting. I also spoke to some people on the day shift and I am pretty sure I have
been able to stave off a pro union vote. I have asked that the people concerned
give me the opportunity to talk to you and Dennis and other concerned parties
and if I cannot come to some kind of resolution which I am certain we can
involving the issues I have given you and Keith and [K]en and everyone that
would sit still long enough to listen. I feel that we can resolve these problems and
go forward so that the company continues to grow and the workers are happy in
terms of wages and work environment and everyone makes money. I hope to
hear from you and or Dennis soon. I seem to be on the same page as most of
the supervisors from what I have been able to surmise from our discussions. I
look forward to out meeting and hope your little girl is OK.
Wallace
Woodman sent an email to Forchic, c.c. to Hager, also dated October 17, 2009, relating
to Wallace’s email and the meeting.
It reads as follows:
I’ve already spoken with Jim about the correspondence below. I will tell you now
Mr. Wallace is attempting to posture himself. Jim and I have a handle on this, but
we would like to conference with you on Monday so we can all share
perspectives and assure we are speaking with one voice. Please let me know
what a good time for you and I will send out a planner.
The meeting initially to be held with Woodman, Hager, Wallace and Carter was
scheduled for October 21, 2009 at 6:00 am. It was subsequently rescheduled for October 28,
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2009.
The meeting was held, but Carter could not make it, so Wallace attended without Carter.
Cohen was at Respondent’s Voorhees plant at the time and observed the meeting via video
conference.
In preparation for the meeting, Wallace prepared a four-page document, entitled “AFL
Presentation: Where Are We Now. Where Do We Want To Be. How Do We Get There.”
The document mentions various suggestions for improvements in scheduling, supervisor
miscues, efficiencies in operations, compensation improvements and development of focus
teams for areas of concern to analyze problems and develop action plans to improve
efficiencies, team work and attitude.
Wallace presented the document to Hager and Woodman and informed them that he
and several other employees had discussed the problems in the shop, that morale was low and
that he was presenting on behalf of employees some possible solutions to these problems.
Wallace also informed Hager and Woodman that there had been discussion among the
employees about brining in a union, but that he felt that the union was not the way to go and
that meetings could, in effect, stop the union. Wallace also told Hager and Woodman that he
wanted to be a liaison between Respondent and the employees. Hager “emphatically” told
Wallace that Respondent did not want that at all, but that if any employee had an issue, they
should feel free to come and talk to Respondent.
However, Hager and Woodman did discuss the issues and suggestions made by
Wallace during the meeting and informed him that the suggestions made would be looked into
and considered.
Hager also told Wallace that Respondent was aware that the Union was organizing at
Respondent’s Secaucus facility and that it agreed with Wallace that the Union was not the way
to go.
After the meeting, Hager sent an email to Cohen and Woodman summarizing his
description of the meeting. Cohen, in turn, sent an email detailing her observations. The email
exchange is described below:
CONFIDENTIAL
 Overall meeting went well. Joe presented his views in a professional and non-
confrontational manner. Joe sees this as an opportunity to advance himself or
increase his power within the company. At this point I feel he thinks the union is
not the way to go but I think he would move in whatever direction that he feels
would benefit him. He is a pretty smart guy and he is trying to keep his options
open.
 The primary focus from his perspective seemed to be about compensation. He
offered many ideas; Incentives, weekend differential, bonus for production, pay
for promotions etc. We offered that we have been working on a lot of this for
some time and introduced him to the Training Program. We also explained that
the way to look at compensation is that everyone needs to know that we expect
someone to demonstrate the ability to perform in a new role when given the
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chance. The compensation will come when people demonstrate what they can
do.
 We did a good job stressing the fact that we did not expect Joe to become a
representative of everyone on the floor and if they had any issue we asked that
he encourage them to come see us. When Brent stressed this he said he had
gotten feedback that Brent was one of the people that would listen to their issues.
I may be reading into this but I got the impression that the men might have an
issue with approaching Keith on issues. This was not said specifically but we
should monitor this. I think it is important that Brent me more visible now than
ever and make sure he is selling our message and getting a good feel for the
mood on the floor.
 We did discuss the Union issue briefly when Joe brought it up. He said he felt
that the union was not the way to go and I told him that we agreed with that. He
said that he felt if the union were to get in here it would probably put us out of
business in a couple of years. He thought they were a long way from getting the
required cards for a vote. He said that he has a problem helping to pay a union
reps six figure salary with his hard work. I told him that if a union were to get here
we couldn't even have these types of conversations anymore. I would be stuck
dealing with only the shop steward. He is very well versed on the workings of a
union. Again I want to take him at his word but we need to manage this
cautiously.
 We need to identify who the Jimmy is that Joe referred to. It sounded like he had
an issue that may have contributed to our current situation.
 I was surprised that Joe’s stated that some of the employees were not
encouraged by Dennis’ letter to the employees. He stated that the people had
interpreted one of Dennis’ town hall meeting to mean that when the new 4-high
towers were put in and we put work on them they would get their 5% back. Now
in recent meetings they interpreted that we have to get another press up to get
their 5% back. Joe’s interpretation is they feel that the target keeps moving and
they were disappointed to know that they would only be potentially getting half of
the money back. Again this is Joe's interpretation. We need to get other people's
feedback on the floor to confirm or deny his interpretation.
Next Step:
I think we need to identify some issues that we can address and get them done.
We do not need to announce what we are doing but we should get some of it
done. My suggestions are below:
 Newsletter -get a newsletter out in November as a follow-up to Dennis' letter that
went home last week
 Forklift Training -Identify all the operators that need training and get an outside
vendor in to conduct forklift certification. Eventually we should have an internal
trainer but for now we need to get everyone certified. Define our policy regarding
the use of the forklift.
 Identify some HR policies and start to communicate them to the floor. Some
moral issues can occur when people don't clearly know what is expected of them
and everyone doesn't feel they are being treated equally.
 Complete the open pressroom training sheets and meet with the appropriate
operators. This has been in the works for months and we should get the
operators changes through. Identify a few new operators to get into the program.
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Sit with them and review what the program, skill set sheets etc .. Begin to meet
with new trainees monthly.
 I really don't think it would be a bad idea to start to put together some process
improvement teams to help address some of the pressroom issues. The
important thing would be that Management identify what the group will work on
prior to meeting. We should have a defined charter going into the meeting. This
can't turn into a gripe session but should be a structured six sigma process. One
suggestion would be to pull a small team together to address the PM issue we
are faced with. I would suggest Keith, a supervisor, Brent (facilitator), and one or
two operators from the pressroom. These should people that are carefully
selected so that we can insure the success of the initial efforts. The important
thing is these need to be structured meetings and follow-up needs to occur
between meetings. With how we were advised from Ian regarding meeting with
people I would suggest we get the sign-off of Dennis prior to doing anything here.

Please reply with your comments so we can get an update out to the leadership
team.
Thanks,
Jim
Jim, you summarized the meeting well. I agree that Joe is keeping all his options
open, and though he says that the union is not the way to go, he does seems[sic]
to want to get something out of this for himself, and he likes to be the role of
spokesperson and leader. Another next step would be to increase
communications on our current training program. When I’m in Secaucus this
week Roxanne and I will post the 2 or 3 Finishing employees who recently
completed one of the programs on the bulletin board, and post the press folks
once we’re reviewed the materials.
Susan
Subsequent to the meeting, Hager testified that he raised several of Wallace’s
suggestions with Forchic and recommended that they be implemented. However, according to
Hager, Forchic rejected all of the recommendations. Hager added that he instructed Woodman
to notify Wallace of the decision made by Respondent not to implement any of Wallace’s
proposals, but Hager did not know if Woodman did as instructed.
Wallace, on the other hand, testified that he over the next several weeks made a number
of requests from Woodman as to what was happening with the presentation made by Wallace.
Woodman, similarly on each occasion, replied that Respondent was still looking into things and
that it was going to make changes.
Finally, Wallace, in early Decemeber, concluded that Respondent was not going to
implement any of the suggestions that he made on behalf of himself and other employees, so
he decided to support the union organzing effort. He first contacted Puntiel, who had initially
approached Wallace about supporting the Union. Puntiel gave Wallace Doklia’s number.
Wallace called Doklia and met with him to discuss the Union. They talked at length about what
the Union could do for the employees, and what the steps would be and how to go about doing
it. On December 10, as noted above, Wallace signed an authorization card for the Union at a
meeting at the Tick-Tock Diner along with several other employees, including Mattei.
From the time that he started working for Respondent, Wallace’s consistent practice had
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been to arrive at work approximately a half-hour before his 7:00 pm start time and would
converse with his fellow employees, even with such employees, who were still working on the
prior shift. He would discuss various matters with such employees and never been instructed by
anyone from management not to engage in such discussions or that this conduct was disruptive
of work. As detailed above, Wallace began discussing with his fellow employees their
complaints about working conditions as well as the possibility of union representation in
September and October of 2009. At that point, as also noted above, Wallace indicated to
employees that he opposed unionization and urged instead presenting employees’ concerns to
management and volunteered to be the spokesman in that regard.
Some of these discussions by Wallace with employees did occur while some of the
employees were still on the clock. However, according to Wallace, the employees with whom he
spoke were not busy at the time, such as the employees were merely waiting for plates for a
job. About two weeks after his late October meeting with Hager and Woodman, Whitmoyer
asked Wallace to come into his office. Whitmoyer instructed Wallace that Respondent did not
want him on the floor talking to employees, who were working before his shift started, because it
was disruptive of their work. Wallace replied that he had been doing this (speaking to
employees, who were working) since he (Wallace) started. Wallace asked why all of a sudden is
there an interest now. Wallace then inquired if it was because of the Union and added “I’m not
the organizer here.”8
Whitmoyer replied that he didn’t say that Wallace was the organizer, but that he wanted
Wallace to stay off the floor before Wallace’s shift started, and that the instruction had nothing to
do with the Union.
In this regard, Wallace testified, without contradiction, that he noticed other employees
coming in early and speaking to employees on other shifts, who were still working, who were not
talked to about such conduct as far as he was aware.
After he signed his card, Wallace began to approach employees and urging them to
support the Union. Most of these conversations occurred with employees outside of work or
while employees were outside on a cigarette break or at lunch, or while they were leaving or
coming into work.
Occasionally, Wallace would speak to employees about joining the Union subsequent to
December of 2009 while these employees were at work. However, he did so only when these
employees were not actually engaged in doing anything, such as when they were waiting for a
plate. According to Wallace, these types of discussions, after being told by Whitmoyer not to go
on the floor before the shift started, would occur rarely, about once or twice a week. Wallace
further testified that when he had these union discussions with employees, post-Whitmoyer’s
admonition, he would always get permission from various other supervisors, such as Deska,
Fredericks, Whitmoyer, McNair or Valentine to go out on the floor and speak to employees prior
to the start of his shift.
As noted above, immediately after the union meetings at the Tick-Tock Diner in
November and December of 2009, supervisor Fredericks questioned employees about the
union meetings at the diner. Several employees became upset about these inquiries and were

8 As noted above, while there had been union organizing at the facility, Wallace had not
been in favor of it at that point and had, in fact, urged employees to discuss their concerns
directly with management with Wallace as a spokesman.
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very disturbed as to how management became aware that the Union was having meetings at
the Tick-Tock Diner and that it apparently knew which employees had attended. Cole called
Doklia and informed him about Fredericks’ inquiries about and knowledge of the meetings at the
Tick-Tock Diner. Doklia instructed Cole to “lay low” with respect to organizing because he did
not want to see anyone lose their jobs. Additionally, other employees called Doklia and informed
him that they thought management had had gotten wind that a union organizing campaign had
gotten under way and they were “spooked.”
Doklia decided not to have any more meetings at the Tick-Tock Diner after these
incidents. Doklia set up a meeting at Union headquarters on December 22, 2009. A number of
employees were present. Doklia and several employees expressed concerns about the fact that
Fredericks had asked employees about the union meetings and knew the location of the
meetings. Doklia then suggested that the employees “lay low” for a while, particularly, since the
holidays were coming up and that the Union would resume organizing when the employees “feel
comfortable” after the first of the year.
Respondent admits that it learned of the Union’s organizing campaign on October 1,
2009 when its Vice-President Brent Woodman received a phone call from Mike McNamara, a
supervisor in the finishing department. McNamara informed Woodman that he (McNamara) had
observed two individuals standing off the property at the driveway entrance handing out
literature to employees leaving and entering. McNamara also reported to Woodman that a union
flyer had been left on his vehicle in the parking lot. While McNamara did not keep the flyer, he
described it orally to Woodman, who believed it was the same flyer that the Union had
distributed in 2008.9
Woodman also received a call from an employee on the same day, who informed him
that an individual had offered him a union handout when he arrived at work and that he refused
to accept it. Woodman pulled from his file the union handout that Respondent had found in
2008, which he concluded based on his discussion with McNamara, was the identical flyer that
was found on McNamara’s car in 2009.
Woodman then made several calls to various others of Respondent’s officials, including
Hager, Forchic and Cohen, and reported the above events. Woodman then sent an email to
these officials as well as to Respondent’s attorney at the time, recapping the events of that day
and reflecting that management officials had decided to seek guidance from its attorney.
On October 14, 2009, employee Harry Pagliaro found an unsigned and unidentified
document taped to one of Respondent’s presses. The document, which is handwritten, reads as
follows:
UNION NOW
WANT WHAT YOUR[sic] OWED!!!
Pagliaro removed the document and brought it to Woodman. Woodman sent an email to
Hager, Forchic and Cohen attaching a copy of the document, explaining the circumstances. The
email’s subject was characterized by Woodman as “union activity note left on press.”

9 The Union had made some unsuccessful attempts to organize at Respondent’s Secaucus
facility in 2008 and had distributed some literature at that time.
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Upon learning of the union campaign through the union literature found by employees
and disclosed to Woodman, as detailed above, Hager discussed the issue with Forchic. Forchic
informed Woodman that he preferred not to have a union at the facility and instructed Hager to
contact Respondent’s labor attorneys and obtain advice from them.
As a result of that advice, Cohen consulted with Respondent’s labor attorney and
received a presentation to be used to train supervisors on what they could or could not do
during a union campaign. Cohen familiarized herself with the materials sent to her, asked
questions of the attorney and then proceeded to conduct two to three training sessions with all
of Respondent’s supervisors at its Secaucus facility. These training sessions took place
sometime in late October of 2009. Cohen along with Roxanne Demas, Respondent’s human
resources coordinator at Secaucus, coordinated the training. The testimony of Cohen and
Rittereiser established that the supervisors were informed basically of “do’s and don’ts” of what
supervisors can and cannot say or do during a union campaign, but with no specifics other than
a clear admonition that supervisors were not permitted to surveil employees or engage in union
activities, such as attending union meetings or passing out or receiving union literature.
Rittereiser also testified that the supervisors were informed during these sessions that
employees were not allowed to distribute literature or “bother” employees with union discussions
while they were working, but that these activities were allowed during breaks on the employees’
own time. They were told that union literature could not be distributed during work time on work
premises.
During the months of October through December, Forchic conducted a number of
meetings with Respondent’s employees at the Secaucus facility, during which the Union was
discussed. The meetings were conducted with different employees and supervisors from each
shift. Hager was present at only one of these meetings. Kanniard was present at several of the
meetings since he often worked on two shifts. When Forchic called the meetings, he requested
that all of Respondent’s employees and supervisors at the time attend the meetings.
The record is not at all clear as to at precisely which meeting, Forchic made the
comments, described below, concerning the Union, but I find that the following comments were
made by Forchic or Kanniard at one or more of these meetings.
One of the issues that motivated at least some of the employees to decide to support the
Union was that employees were angry that Respondent had cut the wages of all its employees
by 5% sometime in 2008. The wage cut also affected employees at Respondent’s Voorhees
plant as well.10
Forchic discussed the economic problems that existed that had affected Respondent’s
business and that it need to get more sales. Forchic made reference to the 5% wage reduction
in 2008 that had been motivated by the economic difficulties faced by Respondent. He
acknowledged that he was aware that employees were upset about the wage reduction and
also acknowledged that Respondent was aware that some of the employees were seeking
union representation. Forchic stated that in his opinion he did not feel that the Union was the
right thing for the employees or the company.
Forchic added that unions cannot guarantee employees a wage increase and can only
guarantee that you’ll have to pay union dues. Forchic emphasized that employees would not get

10 Indeed, Respondent had reduced the pay of management officials by 10% at that time
due to economic problems.
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back the 5% pay reduction any faster with a union or without a union because Respondent just
didn’t have the money. Forchic reminded employees that he himself had also suffered a wage
cut and then added that Respondent intended to return to the employees 2.5% of the 5%
reduction in wages by provided a 2.5% increase in January.11
Forchic also informed the employees that they need to understand that if the Union
comes, there would no longer be an “open door policy” that the employees have now as in the
“town hall” meetings that he was then conducting. If the Union comes, management would be
forced to go through the Union. Forchic also told employees that if they had a problem they
could come to speak to him.
Forchic also stated at more than one of these meetings that the Union was not good for
the employees and all they do is take employees’ money to pay the salaries of union officials.
Forchic added that he would not bargain with a union and that he would close down the shop
rather then let a union come in.
Forchic added that if the Union comes in, there was the possibility of strikes, and, if so,
“nothing works out for either side.”
At one of the meetings held by Forchic in December of 2009 with the first shift
employees, Forchic stated that people were coming up to him and saying that they were being
harassed into signing union cards, that the Union was bad and they were a business.
At some point during the meeting, Forchic asked Kanniard to come to the front of the
meeting. Forchic said to the employees that this is as you all know Ken Kanniard and that Ken
is going to say a few words about his opinion on the Union.
Kanniard then came to the front of the meeting and spoke to the employees. Kanniard
informed the employees that he had experience in prior jobs with unions and all that unions do
is take your money and do not do anything for the employees. Kanniard added that all the Union
is going to do is to come in and “shut the doors,” and as a result employees lost jobs. At that
point, Forchic interrupted Kanniard and stated “I can’t say that. I won’t say that.”
As set forth above, subsequent to the union meetings at the Tick-Tock Diner, Fredericks
questioned employees about their attendance at the union meetings, indicating that he was
aware that employees had met at that diner the night before. Employees became upset about
the fact that Fredericks, in particular, and management, in general, had become aware of where
and who had attended union meetings. Several employees, including Cole, complained to
Doklia about this development and, according to Doklia, were “spooked.” Therefore, he called a
meeting at the Union’s office in late December of 2009 to discuss this and other issues
regarding the union campaign. At this meeting, employees expressed their concerns that
management had become aware of the location of the union meetings based on questioning
from supervisors, and they were concerned how management had found out. Various options
were suggested, such as calling a meeting for the Tick-Tock Diner but then meeting someplace
else. Doklia rejected that option and indicated that there would be no more meetings at the Tick-
Tock Diner. He also informed employees that the holidays were coming up and suggested that
“everybody lay back a little bit, and we’ll see how we proceed from there.” No more meetings
were scheduled for the Tick-Tock Diner, thereafter, or indeed, any other union meetings for

11 In fact, in January of 2010, Respondent’s employees, whose pay had been reduced by
5% in 2008, did receive a 2.5% wage increase.
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several months.
However, union organizing inside and outside the shop continued in January and
February of 2010 by Cole, Wallace and Fego, among others, by discussing the Union and
attempting to persuade employees to sign authorization cards and to support the Union.
Although no full fledged union meetings were held during this period, at times, one or two
employees, particularly, Fego and Cole, would meet with Doklia to discuss the progress of the
union campaign.
Additionally, Doklia would continue to appear at the facility to distribute literature
continuously during the months of January and February of 2010.
As I have also detailed above, Wallace, in November of 2009, was instructed by
Whitmoyer not to be on the floor talking to employees before his shift started because it was
disruptive of the work of these employees. As I also found above, this conversation occurred
before Wallace signed his card and before he began to solicit other employees to support the
Union, but after union organizing had started after Wallace discussed common complaints
regarding working conditions with employees and after Wallace had discussed the Union with
employees, albeit attempting to persuade employees to hold off supporting the Union and
instead support his acting as spokesperson for employees in dealing with management.
As I also have found above, notwithstanding the November admonition from Whitmoyer,
Wallace continued to solicit employees to support the Union while they were at work and while
he was waiting for his shift to start. Wallace asserted that he did so only when these employees
were not actually waiting for a plate. These kinds of discussions were rare, about once or twice
a week.
In 2010, Wallace continued to solicit employees to join and support the Union. Some of
the discussions were off-premise and some were at the facility when the employees were on
breaks. Occasionally, in December of 2009, about once or twice a week, Wallace would come in
early, prior to the start of his 3:00 pm shift and talk to employees still on the clock, working on
the earlier shift, about supporting the Union.
On January 16, 2010, Fredericks pulled Wallace aside and told him that he needs to
stop walking around and talking to people. Fredericks added, “They’re watching you. They think
that you’re the organizer.” Wallace responded to that that he was the organizer and added that
he had told several people that already. This conversation was essentially confirmed in an email
from Fredericks to Valentine at 1:18 am, wherein Fredericks also reported to Valentine a
conversation between Fredericks and Whitmoyer, reflecting that both Fredericks and Whitmoyer
believed that Wallace was not being truthful in his (Wallace’s) assertion that he is not a union
supporter.
This email was forwarded by Valentine to Forchic, Hager and Cohen at 11:34 am. The
email is set forth below.
Mike,
I had a conversation with Wallace tonight and he told me he has no interest in
the union at all. He thinks that he is being targeted as an organizer and in fact he
does not want the union. I spoke to Keith tonight about it and he seems to think
that Joe is not being true full [sic]. I have to agree with him. I told Joe that he
needs to stop talking to fellow workers about the union and start focusing on his
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job. I will keep you updated if anything new arises.
Brad
Eight minutes after Valentine forwarded Fredericks’ email to Valentine, at 11:42 am,
Valentine sent another email to Forchic, Hager and Cohen, relating a conversation between
Valentine and Whitmoyer concerning Wallace’s conduct in talking to employees on the floor.
The email reads as follows:
Dennis,
Keith called me last evening right after I got to the hotel. Joe Wallace came in
early and started to go from guy to guy. Keith told him to get off the floor and wait
in the lunchroom until his shift started. Wallace then tried to tell Keith we [sic]
wasn’t for the union. Keith told him he did[sic] care one way or the other but he
was tired of Wallace disrupted the crews. Keith also told him if kept this
disruption up, we would write him up. Wallace waited in the lunchroom.
Mike
The record is unclear as to precisely when this incident referred to in the email between
Whitmoyer and Wallace occurred. Wallace gave no testimony concerning a January discussion
with Whitmoyer concerning the issue, and it may be that this email refers to the November
incident, detailed above, wherein Whitmoyer instructed Wallace not to go on the floor and speak
to employees before their shift. However, it appears most likely to me that it refers to an
additional, though similar, incident in January of 2010, wherein again Whitmoyer warned
Wallace not to disrupt the crews by speaking to employees. I find it unlikely that Whitmoyer
would wait until January of 2010 to report an incident to Valentine that occurred in November of
2009. Further, the email states that Keith (Whitmoyer) called Valentine last evening to report
that Wallace was talking to employees prior to their shift ending. This also suggests, and I find,
that the email refers to an incident in January of 2010, wherein once again Whitmoyer criticized
Wallace for talking to employees before their shift ends. Wallace continued to inform Whitmoyer
that he was not a union supporter and in this instance, Whitmoyer told Wallace that if he kept
the “disruption” up (i.e. talking to employees), he (Whitmoyer) would write Wallace up. I also
note in this regard that my finding as to the date of this incident is consistent with the email from
Fredericks to Valentine, set forth above, also on January 16, 2010, wherein Fredericks reported
that he had spoken to Whitmoyer about Wallace’s protestations to management that he
(Wallace) did not want a union and that both he (Fredericks) and Whitmoyer did not think that
Wallace was being truthful in denying being interested in the Union.
About a week after the January 16 incidents and emails, Wallace was approached by
supervisor Ward Deska. Deska said to Wallace, “Watch your ass. They’re watching you. You
need to watch out what you say to people.”
In late February or early March, Valentine summoned Wallace into his office. Valentine
informed Wallace that an employee had complained to him (Valentine) that Wallace was
intimidating them into joining a union and that Valentine wanted it stopped. Wallace asked
Valentine who had made such an accusation, but Valentine refused to tell Wallace who had
allegedly done so. Valentine explained that he would not tell Wallace who had made the
complaint to him about Wallace because the employee involved was afraid of reprisals. Wallace
replied that he had not intimidated anyone, but had simply presented the pros and cons of union
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membership and informed them to contact Doklia if they were interested and that if they did so,
they would be welcomed with open arms. Valentine then said that he would appreciate it if
Wallace “backed off a little.” Wallace replied, “Okay, you’re the boss. I’ll do what you tell me to
do.”
In November of 2009, Kanniard asked Perez what his position was on the Union. Perez
replied that he actually was currently in a union. In late January of 2010, Kanniard spoke to
Perez and told him that AFL had been aware that there “was union activity going in the building”
and that Respondent had pictures of individuals gathering and meeting with union officials at the
Tick-Tock and Legends Diners. Kanniard added that it was only a matter of time before
Respondent “got rid of them all.” Kanniard specifically mentioned the name of Wallace, Cole
and Mattei and informed Perez that these individuals “were in for a rude awakening – that they
would be the first to go.”
On or about January 19, 2010, as supervisor Dan Johnson was speaking to Henry Ball
about a job that he was going to be running, Johnson stated “By the way, you need to watch
yourself.” Ball asked what did Johnson mean. Johnson replied that management knew about
the Union and that Ball needed to watch himself and work a little harder because someone was
“ratting” to the bosses and providing names of union supporters. Ball asked what does this have
to do with him. Johnson answered that Ricky Lawrence, a co-worker, had been terminated that
day and that he (Lawrence) had given names to management of employees, who were union
supporters. Johnson told Ball that his (Ball’s) name was mentioned by Lawrence as a union
supporter along with other employees, including Lawrence Roessner, Bob Mattei and Kevin
Cole. Johnson concluded the conversation by urging Ball to “keep his nose clean, do what you
need to do.”12
Also, in mid- to end of January of 2010, Johnson spoke with Fego while they were
smoking a cigarette on break. Johnson informed Fego that the company knew that employees
were trying to organize for the Union and that the company knew that Kevin Cole and Fego
were among the employees organizing for the Union, and he warned Fego to “be careful.”13
On January 18, 2010, Forchic sent an email to Cohen with copies to Hager, Valentine
and Verna Williams, Forchic’s executive assistant. The email refers to a meeting on that day to
discuss what was going to be needed to “respond to the union effort.” It further states that
Respondent is putting together literature that it is gathering regarding industry layoffs, cut-backs
and closures and attached several articles in that regard, which detailed closing of plants that
will be part of the discussion. The email chain included an email from Forchic to Hager, Cohen
and Valentine, dated January 8, which referenced prior articles on closings of L.A. Times and
ConVEO plants, wherein Forchic instructed his subordinates that “we need to find out if the LA
Times and two ConVEO plants were union plants.”
Sometime in February, as a group of employees, including Cole and Fego, were coming

12 Ball, as noted, signed his union authorization card in December of 2009. Lawrence was
present at that meeting and signed a card at that time. Both Mattei and Cole also signed cards
at meetings at the Tick-Tock Diner. Roessner, the other employee mentioned by Johnson as
having been identified by Lawrence as a union supporter, was not present at the Tick-Tock
Diner, according to Ball. Further, Ball provided no testimony, nor does the record reflect, any
evidence as to whether Roessner even signed a union card or otherwise supported the Union.
13 Johnson was also a personal friend of Fego, and they socialized outside of work. Johnson
left Respondent’s employ for another job shortly after this conversation.
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into work, Kanniard asked Cole, “When the Union gets in, are you going to be the shop delegate
or shop steward?” Cole laughed and made no response to Kanniard’s inquiry.
At some point in March of 2010, Kanniard informed Perez that Respondent was
weighing several options in case the Union gained any ground in organizing the shop. Kanniard
stated that one option being considered was to close the Secaucus plant and move all the work
to the Voorhees plant. Kanniard added that someone had come in to take measurements of the
presses in preparation for moving them. Kanniard further informed Perez that the second option
under consideration was to bus the Voorhees workers into Secaucus and leave them do the
work. Kanniard added that in his opinion, he did not think that the Voorhees workers would mind
because they were working 320-hour weeks at the Voorhees facility.
The union organizing campaign continued during the months of January, February and
March of 2010. It consisted of employees, such as Fego, Perez, Cole and Wallace, discussing
the union campaign and attempting to persuade other employees to sign cards in support of the
Union. These discussions took place at work while employees were on breaks and outside the
facility. The Union also conducted a few meetings during these months, but primarily Doklia
would meet with one or two employees outside the facility to discuss the Union and the
campaign.
Doklia would also appear at the facility during these months to distribute literature to
employees.
In approximately December of 2009, Doklia distributed union t-shirts to employees, and
subsequently, employees began to wear them into work. Sometime in February or March,
Valentine issues a memo to employees on behalf of Respondent, stating that only shirts with
AFL logos were to be worn by employees while working. The memo also stated that no shorts
or sandals would be permitted to be worn by employees while working. After that memo was
issued, some employees, such as Cole, Perez or Fego, would wear the union t-shirts in to the
shop but change into their work clothes, where they would either take the union shirt off or cover
it up before starting to work on the presses.
Craig Amato was first employed by Respondent as a second pressman on the third shift.
On April 1, 2009, his direct supervisor was Ward Deska. In January of 2010, Kevin Cole
approached Amato and asked Amato what he thought about the Union. At that time, Amato
informed Cole that he wasn’t sure about the Union. Cole informed Amato that if he had any
questions about the Union, he should either talk to him (Cole) or Rich Fego. In March, Amato
decided that he wanted to meet with the Union to get some questions answered. He asked
Fego to set up a meeting with the Union for that purpose.
A meeting was subsequently arranged by Fego and Doklia to meet on March 19 at the
Legends Diner. In addition to Doklia, employee Matt Deska was also present.14 At the meeting,
after Amato’s questions were answered, Amato signed an authorization card for the Union,
dated March 19, 2010. Matt Deska also signed a union authorization card at the same meeting
at the Legends Diner. Shortly thereafter, Perez and Kanniard were smoking a cigarette in front
of Respondent’s facility when Amato and Fego passed by them and entered the building.
Kanniard informed Perez that Amato had attended a union meeting at the Legends Diner and
that Amato had signed a union card. He also told Perez that someone was providing the
company with this information, but he did not immediately tell Perez who it was.

14 Matt Deska was also the son of Amato’s supervisor, Ward Deska.
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After Amato signed his card, he spoke to a number of employees on the pressroom floor
about the Union and tried to convince them to sign cards as well. Some of the employees,
whom Amato spoke to in this regard, were Perez, Chris Aviles, John Bayard, Louis Zayas, Al
Kowalen, Joe Fix, and Robert Boast. These conversations between Amato and co-workers
occurred usually before his shift started, and he would tell employees about the benefits of the
Union, suggested that they sign cards and/or meet with Doklia in order to discuss the Union and
sign cards. Amato arranged for a meeting between Chris Aviles and Wes −− with Doklia, and
both of these employees met with Doklia and Amato and signed union cards.
On March 1, Kevin Cole was sending a text on his cell phone at work while the press
was running. According to Cole’s testimony, which is not disputed by any of Respondent’s
witnesses, it is a common practice for both employees and supervisors to use their cell phones
at work, even while the press is running. Cole had done so in the past and was seen by various
supervisors, including Valentine, Johnson, Metz and Fredericks, and was never informed that
this conduct (using a cell phone while at work) was forbidden or against any company policy.
Indeed, frequently, supervisors and employees text each other using their cell phone on
business related matters.
However, on this day in March, Valentine approached Cole and said to him, “This is
fucking bullshit. You have a fucking job to do.” At that point, Cole said nothing, and Valentine
grabbed a newspaper from the machine and walked away. Cole followed Valentine and
confronted him about his comment. Cole said, “I don’t disrespect you, so don’t disrespect me.”
Valentine did not reply.
Later on, in the same day, after returning from lunch, Cole saw the “three amigos”
(Kanniard, Valentine and McNair) standing together. Valentine looked at Cole and shook his
head in disgust. Cole then asked Valentine why he had shook his head at Cole. Valentine gave
no reason but informed Cole that he wanted to see Cole in his office after Cole’s run was over.
Before Cole’s run was over, Valentine sent supervisor Doug Metz to take Cole’s spot as
second pressman and to tell Cole to come into Valentine’s office. Cole complied, and in
Valentine’s office, McNair was also present. Cole asked why McNair was in the room. Valentine
replied that McNair was a manager and had insight into the situation. Cole asked if he could
have someone present to be with him. Valentine then made a phone call and informed Cole that
he could not have anyone in the room during the meeting.
Valentine told Cole that he must pay attention to the presses when a job is running and
not be doing other things.
Cole replied that everyone hated working for the “three amigos,” that they were ruining
the company, nobody was getting paid what they deserved, conditions weren’t fair and
everybody, including Cole, was unhappy working there and that he (Valentine) was the big
problem. Valentine stated that Cole was lazy and that no one wanted to work with him. Cole
replied for Valentine go get someone, who doesn’t want to work with him because he knew that
he was friendly with everyone and all his co-workers liked him.
Valentine told Cole that if he didn’t like working for the company, he could “walk out the
door.” Valentine also called Cole a chicken, and Cole said that he would not walk out the door.
Later in the day, Cole requested a copy of Respondent’s employee handbook from
Roxanne. Roxanne did not give him a copy because she informed Cole that he had already had
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a copy and was reading it. According to Cole, in fact, he did not have a copy and stated that he
would not have asked for a copy if he already had one.
On March 3, Valentine prepared a document entitled “Performance Note: Kevin Cole,”
which was placed in Cole’s personnel file. The document reads as follows:
Performance Note: Kevin Cole
Date: 3/3/10
On 3/1/10 I noticed that Kevin was texting on his phone, with his back to the
presses during a press run, “South Bay”. I approached him and spoke to him
about this and he became insubordinate. I brought him into my office to continue
the conversation.
He stated that he dislikes working here; that everyone dislikes it here, even the
supervisors; and that Mike is creating a rift between the supervisors and the
employees.
I told that he must pay attention to the presses when a job is running and not
doing other things. He was informed that this meeting constitutes as verbal
warning.
Later in the day, he requested a copy of the Employee Handbook from HR and
Roxanne was about to give him a copy and saw that he already had one and
reading it.
Mike Valentine
Plant Manager
Cole never saw or received a copy of this document. Although it states that Cole was
informed at the meeting that the meeting constitutes a “verbal warning,” Cole unequivocally
denied that he was so informed.15
On April 2, Respondent laid off Cole, Mattei and Wallace.16 Amato, after being informed
of the layoff, called Doklia and asked to meet with Doklia. A meeting was held on April 17,
attended by Amato, Fego and Ball.
Also, sometime in April, Ball and McNair were discussing the fact that Ball’s
grandparents were from Tennessee. McNair was from Kentucky, which is a neighboring state.
During the course of that conversation, McNair said to Ball, “You know there’s no union in
Tennessee.” McNair then asked Ball, “How do you feel about a union being at AFL?” Ball
responded, “I’m for the union at AFL.”
On April 19, Respondent terminated Whitmoyer from his position as pressroom
manager. After he was terminated, Whitmoyer shook hands with the employees under him, and
they wished each other good luck. When he got to Fego, Whitmoyer added, “Good luck with
your union.”

15 Valentine did not testify. Hager admitted that he became aware of the incident and the
document that appeared in Cole’s file.
16 The facts concerning this layoff are detailed more fully below.
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Sometime in early May, Kanniard left an article on union pensions on Fego’s work area.
Fego wrote “thanks” on the article and put it back on Kanniard’s toolbox. The next day, Kanniard
approached Fego and said, “Oh, you know, I was only joking around.” Fego answered, “It’s
okay, you know. I’m not upset or anything. I just wanted to tell you thank you.” Kanniard
responded, “We were only having fun. We were joking.” Kanniard then asked if he could talk to
Fego outside. They walked outside had a cigarette, and Kanniard asked, “Can I talk to you?”
Fego said, “Sure.” Kanniard told Fego that “the company knows that you’re trying to organize
the place. They think that you’re number one on the list.” Fego responded, “Don’t take this stuff
personal because, you know, we have to do what we have to do and you guys do your job.”
Also, in the month of May, Amato was speaking with employees John Bayard and Wes
−− in the pressroom. Kanniard approached the employees and said to Amato that he (Amato)
“was going to be the next union representative.” Amato responded that he didn’t know what
Kanniard was talking about and that he did not know about a union. Kanniard made no reply
and walked away.
Also in May, while Amato and Bayard were talking, Fredericks approached the
employees. Fredericks asked them, “When is the next union meeting?” Amato responded that
he didn’t know anything about a union meeting and that he was not affiliated with a union.
On May 23, Doklia held a meeting with fourteen employees at the union office. It was
decided that the Union was going to file a petition with the Labor Board to obtain an election.
The employees present took an oath of brotherhood and signed a “bargaining committee letter
for their protection.” Doklia instructed its union attorney to send a copy of the letter, which was
dated May 22, to Respondent.17
On May 25, 2010, the Union filed a representation petition in Case No. 22-RC-13119.
On June 11, 2010, Valentine sent an email to Cohen and Hager describing his
conversation with Fego on June 10, relating to the Union and the NLRB representation hearing,
scheduled for Monday, June 14. The email reads:
Around 8:00am on June 10, I gave the employees on Carl Chances crew (Folder
#2) information concerning the union representation petition. Rich Fego took the
memo from me, looked at it for a couple seconds and went to hand it back to me.
He said while smiling "there is no sense in me looking at this". I responded
"Come on Rich, just keep an open mind about this”. Rich then asked me if I was
going to the NLRB hearing on Monday. I responded "What hearing?" Rich said
laughingly "Yeah right". He told me he thought he would be there, but he said the
union officials would let him know later that day if they wanted him there or not. I
told Rich, "You already know my feelings about this". "I've told you before, if you
want the union here, I understand". 'I don't agree with it and I think you guys are

17 General Counsel conceded that it had no evidence that Respondent ever received the
letter that was prepared at the meeting that named members of the “bargaining committee.”
Indeed, the letter was not introduced into the record, which also does not reflect which names
were on the letter. Doklia did testify that the Union’s primary guy in setting up meetings with
employees and relaying information to employees was Fego and the point man for him was
Cole. Doklia added that Ball, Perez, Puntiel and Gustavo Marin were also all employees used
by him to “put word out in the shop.”
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making a mistake, however the last thing I want to see happen is to have a
wedge driven between you and me or a wedge between me and the employees".
"This would be the last thing I would want to see happen as it will only hurt both
of us". Rich responded "That is not going to happen". "Our beef is not with you
Mike, but with AFL." "You have treated us fair and you have always been straight
with us, so we see no reason why we (the union) can't work together with you." I
asked Rich why he felt they needed a union and he said "Because we (the
employees) need certain things to survive." I asked him like what. His response
was "More money, a pension and job security." I said "You really think the union
is going to get you all of that?" He said "Yes". I said "Rich think about what you
are saying. Don't you think if I (AFL) had the money, I would give you a raise." He
responded "Yes I believe you would, but we know you have bosses, as we do."
"If they won't give you the money, we understand you have to do what you are
told to do by your bosses." I said "Rich, if we had the money, I would get you a
raise but the company is in poor shape right now." Rich said "We will see Mike,
we will see.'" After that he walked away. The conversation was not at all
confrontational.
The NLRB hearing was held as scheduled on June 14. Fego was subpoenaed to testify
by the Union at the hearing. He appeared at the hearing, but the record does not disclose
whether or not he testified.
Shortly before June 15, Kanniard sent a text message to Perez. The message was that
there were to be “fireworks going off in the building.” Perez responded by asking what did
Kanniard mean? Kanniard texted back, “You will see.”
On June 16, Respondent laid off 16 pressroom employees, including Amato, Ball and
Fego.18
An election was conducted on August 4. The Union won the election and was
subsequently certified as the bargaining representative of the pressroom employees at
Secaucus. As of the close of the trial in the instant case, the parties were still engaged in
bargaining for a new contract.
My findings above in this section is based on a compilation of the credited portions of the
testimony of Fego, Cole, Mattei, Wallace, Ball, Amato, Perez, Valentin, Doklia, Hager, Cohen
and Kanniard, plus my review of documentary evidence, such as emails as set forth. Much of
these findings are based on undenied or unrefuted testimony of the employee witnesses called
by General Counsel. Thus, Forchic, Valentine, Fredericks, Whitmoyer, Metz, Johnson, Deska
and McNair did not testify, so the mutually corroborative testimony of various employees
concerning their conversation or comments about the Union with employees is credited.19

18 The facts concerning this layoff will also be detailed below in a separate section.
19 It is true that Valentine, Forchic, Whitmoyer, Metz, Johnson, Deska and McNair were no
longer employed as supervisors by Respondent at the time of trial. However, that did not
preclude Respondent from calling any or all of them as witnesses to refute the testimony of the
employees. Indeed, Cohen was also no longer employed by Respondent at the time of the trial,
but Respondent did call her as a witness to testify about the layoff process. I also note that
Fredericks, although no longer a supervisor of Respondent, was not terminated by Respondent,
but merely demoted to first pressman and was employed by Respondent at the time of the trial.
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Further, the testimony of several of these witnesses is mutually corroborative and similar
in nature to conversations testified to by employees with the same or different alleged
supervisors or agents.
The only refutation of the employees’ testimony in certain respects came from
Kanniard’s testimony. Kanniard denied making any of the comments attributed to him by the
numerous employees as I have detailed above. I was not impressed with Kanniard’s self-
serving and unpersuasive denials nor with his testimony in general. I find that he was so intent
on establishing his alleged lack of supervisory and agency status that he was even contradicted
by his Respondent’s own witness, Rittereiser, with respect to whether Kanniard shared an office
and had his own desk in an office with Rittereiser and McNair.
Accordingly, based on the above, as well as comparative demeanor factors, I do not
credit Kanniard’s denials and have credited the employees’ versions of Kanniard’s comments
and actions as I have detailed above.
Kanniard also furnished some testimony contradictory to some employees as to what
was said by Forchic at the meetings that Forchic held in 2009 and the circumstances of
Kanniard’s involvement in the meeting as well as what Kanniard himself said. To the extent that
Kanniard’s testimony varies from or contradicts the testimony of General Counsel’s witnesses, I
credit the employees’ testimony, which I have detailed above. I also note that while Kanniard
furnished some generalized testimony about what Forchic said at the meetings, including that
the employees did not need a union, Kanniard did not deny the testimony of the employee
witnesses that Forchic, at more than one meeting, threatened to close the shop rather than let
the Union come in.20
V. The Layoffs of Cole, Mattei and Wallace
On April 2, 2010, Cole, Mattei and Wallace were notified that they were laid off. Wallace
was called into a meeting with Rittereiser, Gamarra and Valentine on that date. Rittereiser
informed Wallace that there was a reduction in Respondent’s workload resulting in cutbacks and
that he was being laid off. Wallace asked if it had anything to do with the Union. Rittereiser
responded no, the two things are not related. After the meeting ended, Wallace pulled Gamarra
aside and asked, “Tell me the truth. Is this about the Union?” Gamarra replied, “No.”
All three employees received identical letters, dated April 5, referring to the April 2
layoffs and explaining to the employees the compensation benefit and insurance options. The
letters are as follows:

20 Hager was Respondent’s only other witness to testify about Forchic’s comments to
employees about the Union. According to Hager, he was present at only on of the several
meetings that Forchic conducted with employees and discussed the Union. Hager testified that
he recalled Forchic informing employees that he believed that the Union was not the right thing
for the employees or the company and that the Union could not guarantee employees any more
money and all they could do is take money out of your pockets. Hager also confirmed testimony
of employees that Forchic promised to return 2.5% of the wages to employees that had been
previously reduced. Hager did testify that he did not hear Forchic threaten employees that he
would shut down the plant if the Union came in. However, I note that Hager asserted that he
was present at only one of the Forchic meetings. In any event, to the extent Hager’s testimony
can be construed as a denial that Forchic made such comments, I do not credit such denials.
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Re: Separation from Employment
Dear Bob,
As we discussed, A.F.L. Quality NY LLC, Inc. (d/b/a AFL Web Printing)
(“AFL”) has found it necessary to reduce its staff due to the overall unfavorable
economic environment in our industry. As a result of this decision, AFL has
identified a number of positions which are being eliminated, and unfortunately
this included you. Thus, your employment with AFL terminated, Friday, April 2,
2010. You will be paid through and including April 2, 2010. You will receive your
final check on 4/16/2010 which will include your days worked through April 2,
2010 and any available unused and accrued vacation time, according to the AFL
Employee Handbook. Direct deposit will stop and your final check will be a “live”
check, which will be mailed to your home.
If you participate in AFL's group medical and/or dental insurance, that
coverage terminated on April 2, 2010. Information concerning continuation of
group medical and dental insurance coverage (“COBRA”), if applicable, will be
mailed to your shortly. Should you have any questions concerning COBRA,
please contact the Plan Administrator at (609) 872-0001.
Your participation in AFL's group life insurance plan will terminate
effective April 2, 2010. However, there may be an option for you to convert this
coverage to an individual policy or replace this coverage with a private plan. If
you are interested in pursuing these options, please contact Fort Dearborn at 1-
800-348-4512 who will put you in contact with the appropriate person.
Your participation in AFL's 401(k) plan, if any, will terminate on April 2,
2010. You can receive information concerning your post-employment options in
connection with your 401(k) account balance, if any, by contacting John Hancock
directly. Should you have any questions concerning your 401(k) account balance,
you should contact the Plan Administrator, John Hancock at 1-800-333-0963.
Under the circumstances, you are eligible for unemployment benefits.
You have received a completed BC-10 form which you should use to apply for
unemployment compensation benefits.
We wish you well in any job search that you might undertake.
Sincerely,
Susan Cohen
Director of Human Resources
cc: Personnel File
The Union and/or concerted activities engaged in by Cole, Wallace and Mattei are
detailed above. Hager, Rittereiser and Cohen all testified that their only knowledge of union
activity at Respondent’s facility came when Respondent became aware of a union pamphlet
being left on a car in October of 2009. They further testified that they were not aware of whether
any particular employee was a supporter of the Union. Rittereiser also testified that neither
Fredericks, Johnson, Metz or Deska reported to him that any employees were engaging in any
sort of union activity. Rittereiser also denied that Deska had ever reported to him that Deska’s
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son had given Deska (senior) information as to who was trying to organize for the Union.
On the contrary, both Cohen and Hager testified that they believed Wallace was not
interested in the Union, and this belief was based on Wallace’s own assertions to them. The
facts relating to these communications are detailed above, including Wallace’s own admissions
that he was consistently assuring various management representatives that he was not a union
supporter.
Further, while conceding that various emails from several of Respondent’s supervisors,
which are detailed above, expressed skepticism about Wallace’s sincerity in these protestations,
Cohen and Hager, nevertheless, insist that they both believed Wallace when he told
Respondent’s representatives that he was not a union organizer or union supporter.
Hager and Cohen testified that Respondent’s financial problems had begun in 2008,
resulting in numerous attempts by Respondent to cut costs in various ways, culminating in the
April 2 layoffs. As already detailed, Respondent instituted a pay cut in 2008 of 10% for
executives and 5% for all other employees at both of Respondent’s facilities.
Hager testified that Respondent spent a lot of money to install the new DGM presses in
Secaucus in the hopes of attaining new sales revenues since Secaucus is closer to the New
York market. However, the economy in general and the printing industry as a whole began a
huge downward spiral at about the time the presses became operative in early 2008.
As a result, Respondent’s revenues and sales continued to decline, resulting in
continued financial losses. In February of 2009, Respondent decided that it needed to further
reduce costs and concluded that layoffs would be necessary.
It laid off employees at both Voorhees and Secaucus that included 20 manufacturing
employees, seven pressmen from the Voorhees plant and a few finishing employees at the
Secaucus facility. The employees laid off in 2009 were selected by using a rankings process
developed by Cohen’s predecessor as HR director. This process involves utilizing forms filled
out by management officials in various categories, ranking employees in numbers from 1-4.21
However, Respondent’s business continued to decline, and on December 15, 2009,
Respondent concluded that further reductions in costs were necessary. According to Hager, he
discussed along with Forchic and Mark Henderson, another vice-president, and Bob Bechtel,
the CFO, how to make further cuts since it wasn’t bringing in enough sales to pay its bills. It was
concluded that some layoffs would be necessary. Forchic and Henderson had sales background
and were positive that they were going to be able to bring in more work. The possibility of laying
off press employees was discussed, but rejected since the group, particularly Hager, felt that if
Respondent cut further into its press department, they would not be available if and when
Respondent would bring in new business. The group concluded at that time that the skilled
employees were harder to replace and that Respondent could do without some administrative
sales and administrative personnel, who would be easier to replace. Thus, it was hoped that if
business improved, it would have the skilled employees available to run the presses. Thus,
Respondent on December 15, 2009 laid off Brent Woodman, its vice-president for
manufacturing at its Secaucus facility, and eight administrative and management employees
employed at its Voorhees facility.22

21 The categories were technical skills, productivity, reliability and teamwork.
22 These employees included three customer service and sales representatives, a sales
Continued
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According to Hager, at the time that the decision was made to layoff these employees on
December 15, 2009, Respondent had become aware of union organizing at Secaucus by virtue
of the finding of the union leaflet.23 However, Hager asserts that the subject of the union
organizing did not come up during the above described discussions amongst management
officials, wherein it was decided that the layoffs at that time would include only nine managerial
and administrative employees.
In late February or early March, a restructuring company (CDG) took over Respondent’s
operations. Forchic remained as the CEO, but his involvement in running Respondent’s
operations began to diminish. CDG representatives tasked Hager, Henderson and Bechtel to
come up with a plan to reduce costs and get business back on track.
In March of 2010, Respondent lost a significant amount of revenue when its client,
Greater Media Partnership, closed. Hager testified that as a result of the loss of this account, a
decision was made to layoff three employees, Mattei, Wallace and Cole. At a meeting, which
included Cohen, Valentine and Hager, it was decided to use the same ranking system utilized
by Respondent in its February 2009 layoff, which was described above. The events of this
meeting were confirmed in an email from Cohen to Hager and Valentine, which reads as
follows:
As per our meeting today with you and Mike, we will use the ranking system that
was used during a prior layoff in Feb ’09. As you mentioned, due to the loss of
the Greater Media account, which occurs at the end of March, the plan is to
reduce the press staff by approximately 3 employees. This determination will be
made based on performance and we’ll use the same 4 performance criteria on
the ranking document. Please send me the ranking spreadsheet and I will
populate it with the current employees and forward to Mike V.
Subsequent to that email on March 17, the ranking spreadsheets were prepared by
Cohen and forwarded to Valentine. The rankings were prepared by Rittereiser and Whitmoyer.
These supervisors were instructed by Hager to prepare their evaluations of the employees on
their own and to return them to Respondent’s officials. Hager did not know whether or not
Rittereiser or Whitmoyer consulted with the direct supervisor of the employees in formulating
their rankings. In that regard, Rittereiser testified that he was given the spreadsheet by
Valentine and that Valentine instructed him to rank the employees on a scale from zero to five
with five being the best and that the evaluations were to be done separately from the rankings
being performed by Pressroom Manager Whitmoyer. Rittereiser did not consult with any of the
employees’ supervisors in preparation for his rankings. Rittereiser also testified that he did not
consult the personnel files of any of the employees, except for seven employees, who he had
recalled had previously received write-ups.
According, to Rittereiser, the March 2010 rankings was the first time that he had
ever been asked to perform rankings on employees or had ever used the ranking system
before. Although, as noted above, the testimony of both Cohen and Hager corroborated
the fact that the identical system was used in the February 2009 layoff. Rittereiser did
not ever recall that there was a layoff in February of 2009. The record establishes that
_________________________
manager, an HR generalist and three billing and accounting employees.
23 Indeed, Respondent had conducted its supervisory training and Forchic had conducted
his meetings with Secaucus employees when the layoffs were effectuated.
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most of the layoffs involved Voorhees employees. Hager did testify that there were a few
finishing employees in Secaucus that were laid off in February of 2009, who would
presumably have been ranked at that time. Rittereiser was the operations manager in
Secaucus and apparently would not have been involved in ranking employees in
Voorhees in 2009.
Rittereiser and Whitmoyer prepared their evaluations, submitted them to
Valentine, who in turn submitted them to Cohen.24
After receiving the evaluations, Hager sent an email to Cohen dated March 24,
attaching the evaluations, which he combined into one spreadsheet. The email reads:
Susan,
Attached please find the evaluations that were completed by both Ken
and Keith. I combined them into one spreadsheet. Our plan is to reduce
one lead operator and two second pressmen. Due to the loss of Greater
Media we can no longer justify these positions.
Thanks,
Jim Hager
The rankings reveal that Mattei, Cole and Wallace had the lowest scores of
Respondent’s employees, who were ranked.
As noted above, Hager testified that the decision to select Mattei, Wallace and Cole for
the April layoff was based solely on the fact that they were the three lowest scoring employees
on the ranking scale that Respondent had used in its February 2009 layoffs. Hager was also
asked on cross-examination and by the undersigned to provide more specific details about the
decision-making process, particularly as to how, why and who decided which employees or
classifications would be laid off, the number of employees laid off and why Voorhees employees
were not ranked or laid off in April of 2010. As set forth above, the March 17 email from Cohen,
summarizing the meeting on that day between Cohen, Hager and Valentine, reflects that Hager
stated at the meeting that due to the loss of the Greater Media account, Respondent planned to
reduce the staff by “approximately 3 employees.”
In Hager’s March 24 email to Cohen, wherein he attached the combined spreadsheet,
Hager commented, “Our plan is to reduce one lead operator and two second pressmen.” Hager
was asked on cross-examination about these emails and his statements therein. When asked to
describe what he meant by “our plan,” he was unable to recall whose “plan” it was, who was
involved in formulating the plan or who else other than himself made the decision. Hager did
testify that he made the recommendation to layoff the three individuals, which was signed off
and approved by Forchic and CDG representatives.

24 In Cohen’s March 19 email to Valentine, she requested that he forward the rating sheets
to Whitmoyer and Rittereiser, have them “do it separately, then forward it to you. You may want
to have a meeting once they’ve finished and go over it together so you can ask questions you
may have about their rankings.” The record does not reflect whether Valentine had meetings
with Rittereiser or Whitmoyer about the ratings as Cohen suggested. Valentine did not testify.
While Rittereiser did testify, he did not mention such a discussion with Valentine nor was he
asked about it on cross-examination.
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Hager furnished more detailed explanations about the decision under questioning by the
undersigned. According to Hager, the Greater Media account was a significant client, billing
$3.5 million dollars a year. This account printed three days a week on several presses, which
amounted to 40 hours of press time per week. Hager recalled that Respondent was notified in
the beginning of March that the job would be ending by the end of the month and that he
recommended to Forchic and Henderson that as a result of the loss of this account that
Respondent should layoff some employees. Hager further testified that since the loss of the
account of 40 hours of work translated to the loss of a press crew a week. A crew, according to
Hager, consists of one lead pressman, two second pressmen and a roll tender. Hager then
explained that although he recommended that a “crew” be laid off, the number of employees to
be laid off somehow got reduced from four to three. Hager could not recall why or how that
decision was made, but speculated Respondent did not layoff any roll tenders (part of the crew)
because Respondent needed a roll tender somewhere else and/or that someone had left. Thus,
according to Hager, Respondent needed that roll tender somewhere else. He could not recall
whether any specific roll tender had been initially selected for the layoff or when the decision
was made that a roll tender would not be laid off.
Mattei was the lowest ranked first pressman and Cole and Wallace were the lowest
ranking second pressmen on Respondent’s ranking system. They were not all on the same
crew, so Respondent moved around some employees on other crews when the layoffs were
effectuated.
Hager also testified that the reason that employees at Voorhees were not ranked by
Respondent or considered as part of the layoff pool was that all of the work lost (i.e. the Greater
Media account) was performed at the Secaucus facility.
Hager also testified that he had no knowledge of any union activities other than the
October 2009 finding of a union leaflet, described above. He further asserted that the subject of
union organizing did not come up during the layoff discussions and decisions, in which he was
involved.
Additionally, Hager insisted that he had no knowledge of whether Mattei, Cole, Wallace
or any particular employee supported the Union or signed a card for the Union. As also noted
above, Hager did testify that Wallace was not a union supporter because Wallace had so
informed Hager when they met to discuss the proposals that Wallace had made on behalf of
himself and other employees as a possible alternative to union representation. Hager continued
to insist that he personally believed Wallace when he informed Respondent that he was not a
union supporter. Hager continued to so insist, notwithstanding that he was copied on emails
from various supervisors, reflecting that although Wallace continually insisted that he was not a
union support that the supervisors believed that Wallace was not being truthful in that regard.
Indeed, in one of these emails, Fredericks informs Valentine that he (Fredericks) told Wallace to
“stop talking to fellow workers about the union and start focusing on his job.”
Hager, while conceding that he was copied on these emails and must have read them,
testified that he didn’t remember seeing them and suggested that he received so many emails
every day that he may not even had read these emails at the time.
In this regard, Hager was also asked on cross-examination about his comments in his
email to Cohen and Woodman on October 28, 2009, wherein in describing his meeting with
Wallace, Hager made some references to the Union. In that email, Hager stated that Wallace
stated at the meeting that the Union was not the way to go and that Hager told Wallace that he
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agreed with that. Later on in the email, Hager commented that Wallace “is very well versed on
the workings of the union” and added in reference to Wallace’s assertion that Wallace was not
in favor of the Union, “again, I want to take him at his word but we need to manage this
cautiously.” When asked about these comments, Hager did not recall making these assertions
to Respondent’s officials. After reading the email, Hager testified that it was an accurate
summary of the meeting, but that he did not recall it. Hager was further asked, “It’s your
testimony that you did nothing to manage the union issue after October 28, 2009?” Hager
responded that he and Respondent had no specific plan and was not sure what he was being
asked. General Counsel persisted in questioning that Respondent need to “manage this
cautiously,” and Hager finally conceded that “Yeah, because we preferred not to have a union in
the company.” Finally, General Counsel again asked did Respondent do anything after 2009 to
manage the union issue. Hager answered that Respondent had the “union avoidance training”
with its supervisors, as discussed above.
Hager was also asked about another comment in his email to the effect that “we need to
identify who Jimmy is that Joe referred to. It sounded like he had an issue that may have
contributed to our current situation.” Hager was asked if that reference to “current situation”
meant union activities. Hager replied no, that he believed that it had to do with Wallace having
concerns about the company and that other employees also had similar concerns as well.
Respondent introduced into the record an email sent by Henderson to Hager and
Bechtel, dated March 31, 2010, which is a summary of what was submitted by Henderson on
behalf of Respondent’s officials to CDG representatives, setting forth possible solutions to
improve costs and increase profitability.
Guys, please review, this is coming from all three of us.
We need to set the expectations of this process, if you agree I would like to get
out ASAP changes please send to me.
Barry, per out[sic] conversion[sic] this am on the criticalness and urgency of
creating a plan that our short term survival and long term success, we discussed
the below and which was ba[sic] yesterday conference call.
The team, Jim Bob and I need to live this for the next two weeks starting today,
that this priority to create the plan that will provide the above; we will look at this
as lock down of
The possible solutions are as follows: (other ideas can also be considered)
1) Shut down Secaucus and move work to Voorhees
2) Shut down Voorhees and move accounts to Secaucus
3) Reduce inventory to night side and shut down dayside in Secaucus and move
dayside in Voorhees
We need to determine the following for options 1, 2, 3 in no particular order.
1) Reduction in human cost / new structure / org chart for all departments
2) Change in accounts / which ones provide the best return in real dollars and on
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a def parameters. Profitability, ability to pay, fit our standards.
3) Equipment: changes / cost
4) Plant / rent / cost
5) Web standardazation
6) Ideas for new sales strategy
7) Possible other topics.
The goal would be to provide the Data and our business judgement, as much of
this is going to be based upon future assumption which we need to be confident
that we can execute upon, to CDG and they will create the model/analyses for us
to review.
Jim, Bob and I have agreed that we will start this process today and allow our
team to deal with the day to day.
We will set up a tactical planning area in my office, from time to time we would
like to update you on outr[sic] progress to ensure that we are heading in the
correct direction on that data that you will required[sic] to create the model.
If we are all in agreement lets[sic] get going.
While this memo was dated March 31, after the decision was made to layoff employees
on April 2, it did refer to ongoing discussions amongst management officials concerning various
solutions to cut costs and to create a plan for Respondent’s “short-term survival and long-term
success.” Hager was asked about this document, particularly with respect to the discussion
among management officials about moving work from Secaucus to Voorhees. According to
Hager, among the various options being considered by management was the moving of work
from Secaucus to Voorhees as well as moving some work from Voorhees to Secaucus. This
process involved a decision to rebalance the work by shifting particular jobs from one facility to
another in order to maximize efficiency. For example, in Voorhees, Respondent would have
shifts in Voorhees, where there was insufficient work and that a particular press would not be in
operation for parts of the shift. Thus, it was decided to shift some work from Secaucus to
Voorhees in order to make sure that the Voorhees shifts have sufficient work to fill their shifts.
When asked why Respondent decided not to simply layoff employees at Voorhees, he
responded that the Voorhees work involved were not full shifts as it would not be feasible to
layoff Voorhees employees to resolve that problem. Hager further testified that this
“rebalancing” (i.e. transfer of work) started in March and continued through to when the second
layoff occurred, as discussed above.
In the midst of this “rebalancing” of accounts, which included some transfer of work from
Secaucus to Voorhees,25 the Greater Media account was lost, which led directly to the decision

25 According to Hager, the “rebalancing” process also included some transfers of work from
Voorhees to Secaucus during the period between March and June. For example, Respondent
transferred WWD daily newspaper work from Voorhees to Secaucus because Secaucus was
closer to the New York market. According to Respondent’s email detailing balancing plans, this
Continued
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to layoff three employees (Mattei, Wallace and Cole) on April 2. Since this account was
performed solely at Secaucus, Hager asserts that it was decided to layoff only Secaucus
employees and not to consider including Voorhees employees in the ranking for the April layoff.
Rittereiser provided testimony concerning his conduct in preparing the ranking
evaluations. Rittereiser was the operations manager at Respondent since October of 2007, with
experience in the newspaper industry of over 20 years as roll tender, second pressman, crew
chief, supervisor, manager and then to operations manager, his current position. While
Rittereiser was made aware of the union organizing in 2009 based on a union pamphlet having
been found at the Secaucus facility and management conducting supervisory training in 2009
on the “do’s and don’ts” on what supervisors can say, he asserts that he had no other
knowledge of any union organizing activities at the facility. He also denied that Fredericks,
Johnson, Metz, Deska or any other supervisor reported to him that any employees were
engaging in any sort of union activity. Rittereiser explained that he made his ranking based on
his observation of the employees’ production and knowledge and how they worked as well as
looking at some documentation in employees’ personnel files. In the latter regard, as I detailed
above, Rittereiser did not look at the files of all employees, but only of the files of seven
employees, who he recalled had received written disciplinary notices.
Rittereiser also testified as to why he gave Mattei, Wallace and Cole low rankings in
several categories. Mattei received an overall rating (combing scores of four categories) from
Rittereiser of 9. This was by far the lowest rating for any of Respondent’s 10 first pressmen. 26
Rittereiser asserts that Mattei had a lot more experience than everybody else and he
(Rittereiser) thought that Mattei would bring a lot more to the table than he did. According to
Hager, Mattei was “written up quite a few times for quality issues, didn’t produce what he should
have been producing, high waste low meets, things like that, that’s why he was ranked low.”
Rittereiser then elaborated on Mattei’s scores in specific categories. In the category of
technical skills, Mattei received a 2 while the other employees rated by Rittereiser received 3s
or 4s. Rittereiser explained that in his judgement “their technical skills were higher than Bob’s
were. I was looking for the best people.”27 Rittereiser rated Mattei as 2 in productivity, which put
him also below nearly everyone else rated by Rittereiser.28 His explanation for that rating is “the
same. Everybody was producing better than Bob.” With respect to the category of teamwork,
Rittereiser gave Mattei a 2 again, which is also less than anyone else rated by Rittereiser in the
category, except for Cole, Wallace and Amato, who received 1, 2, and 2, respectively from
Rittereiser in this area. Rittereiser explained that score as follows: “As a first operator, he’s
directly responsible for what comes off that press. His team wasn’t putting out.”
On cross-examination, Rittereiser was asked about his testimony that Mattei was written
up a “couple of times.” He was asked what the write-ups were for. He replied that one was for
“quality,” but did not recall the specifics nor what the other write-ups were about.
_________________________
was the only account transferred from Voorhees to Secaucus. In contrast 15 accounts were
transferred from Secaucus to Voorhees between March and June.
26 Of the other first pressmen rated by Rittereiser, one received a 12 and the other eight had
scores ranging from 14 to 17. The only employees rated by Rittereiser to receive scores under
were Wallace and Cole, who received scores, as detailed below of 9 and 8, respectively.
27 Except for Wallace, Cole and Amato, who received 2s, respectively, from Rittereiser in
this category.
28 Wallace and Cole were the only other employees rated 2 in this category.
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In this connection, Mattei did receive a written warning, dated February 25, signed by
Whitmoyer, which also makes reference to a prior warning issued to Mattei for substandard
work. This warning is set forth below.
AFL Web
Regional Print Center
Written Warning
Name and Employee ID: Bob Mattei
Title: Lead Pressman
Date of Hire: 1/25/08
Department: Pressroom
Supervisor: Keith Whitmoyer
Time in Position: 2 years
Subject: Standards of Performance and/or Conduct
The following incidents represent substandard performance or conduct. (Attach a
separate sheet if necessary for documentation)
1. AREA REQUIRING IMPROVEMENT – Be very specific; give examples of
substandard performance/conduct; include dates of prior verbal warnings.
On 2/9/10 Bob’s crew ran Greater Media News Transcript B section, the skid
quality was extremely poor. Because of this poor quality of product a lot of the
product had to be inserted by hand taking a total of approximately 21 additional
man hours which also caused additional delays in production. Skid quality is
extremely important and must be controlled by the Lead Pressman, Bob is
directly responsible for the quality of product coming from his press and it was
beyond substandard. This must improve immediately.
2. REQUIRED STANDARDS – Clearly describe to the employee a fully
acceptable level of performance or conduct in the area(s) cited above.
Bob is responsible for maintaining the quality of work produced on his press, he
must produce a quality product capable of being handled without issues in the
finishing department or any other department.
3. DISCLIPLINARY ACTION – State the precise action you will take if
substandard performance or conduct continues.
This is Bob’s second warning for substandard work in the past 6 weeks,
substandard work is unacceptable and must stop immediately. This is a written
warning to notify Bob that his quality of work cannot continue to be a problem,
future problems can lead to further disciplinary action up to and including
termination.
4. SIGNATURES
I discussed the contents of this notice with the employee. I have advised the
employee of his/her opportunity to respond either verbally or in writing.
Keith Whitmoyer – 2/25/10
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Supervisor’s/Manager’s Signature and Date
My supervisor has discussed the above mentioned issues with me. I understand
that I am required to sign this form as acknowledgement that these items have
been discussed with me. My signature on this form is not necessarily an
indication of my agreement with the information presented within this document.
Furthermore, I understand that I have the right to provide verbal or written
response to the issues outlined in this document. If the terms of this warning are
successfully met, consideration will be given to ''removal" from this written
warning. However, if the problems outlined above are not corrected within ____
day, further disciplinary action as noted in Section 3 will be implemented.
Employee Refuses to Sign – 2/25/10
Employee Signature and Date
Mattei furnished some testimony about this incident. He recalls receiving the write-up,
but testifies that in his view it was unjustified because the problems had on the job had begun
on the previous shift and that he had enlisted the help of Supervisor Johnson to help rectify the
situation. He explained his position in that regard to Valentine after the job ended, who had
informed Mattei that the “whole job is terrible.” Valentine and Whitmoyer explained to Mattei that
as first pressman of the crew, he was in charge and should have stopped the presses rather
than continue to run it and resulting in waste. Mattei also denied that he had received any prior
warnings as reflected in this warning.29
Rittereiser ranked Cole as an 8 overall, which is the lowest ranking that he gave to any
of the employees that he evaluated. He gave Cole a 2 on technical skills because he felt that
Cole’s “quality wasn’t up where it should be. The turnaround times on the press very slow; just
didn’t ever want to reach the next level in my eyes.” Rittereiser also ranked Cole as a 2 in
productivity because “very low, he in my eyes would do just enough to get by.” Rittereiser gave
Cole a 1 on teamwork, which is the only score that he gave to any employee in any category.
He explained that rating as follows: “His team never performed, which was a direct reflection of
that number. His crew never really gave attention to detail, would be all over.” Rittereiser also
testifies that he was aware that Cole that had insubordination issue with Mike Valentine.
The alleged insubordination involving Valentine refers to an incident that occurred on
March 1. This incident is discussed above. Valentine’s version is reflected in the performance
note that he prepared. As noted above, Rittereiser did review the personnel files of those
employees, who received write-ups, including Cole, before preparing his rankings.
Rittereiser rated Wallace a 9 overall and gave him a 2 on technical skills. He explained
that this was because “Joe was pretty much everywhere except where he was supposed to be.
Joe would wander around the pressroom and not be at this work station and leaving his crew at
a disadvantage all the time.” Rittereiser further testified that he personally observed Wallace
doing this and instructed Whitmoyer to talk to Wallace about his conduct. Rittereiser ranked
Wallace as a 2 in productivity. He explained: “Same with productivity. All over the building, if
you’re not being productive, you are, not only that, you’re disrupting other people.”
Rittereiser added that the general low ratings that he gave to Wallace in several

29 Respondent did not introduce into the record any written prior warning six weeks prior to
the 2/25 warning.
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categories were based on “my perception of his abilities.”
Finally, Rittereiser testified that he had no knowledge of whether any employees,
including Wallace, Mattei and Cole, were union supporters or engaged in any union activities
and that no one from Respondent influenced him in any way in his ratings of these employees.
After the layoffs were effectuated, Cole texted Amato to notify him about the layoffs.
Amato texted back to Cole that he (Amato) felt that it was unfair that Respondent was laying off
more experienced employees while it had “recently” hired some other employees, who had not
been laid off. The “recently” hired employees to whom Amato was referring were according to
his testimony, Rodney Carter, a first pressman, Gustavo Marin and Robert Chavez, second
pressmen, and Leroy Taylor, a roll tender. Amato believed that all of these employees were
hired at around the same time, according to his recollection, a few months before the layoffs of
Cole, Mattei and Wallace.30
Amato conceded that he was not aware if Respondent hired any new employees after
the layoff of Wallace, Mattei and Cole. Amato also testified that he was unaware of any
company policy that stated that layoffs would be based on seniority.
Finally, Amato testified that sometime between March and June, he noticed that some
work was being shifting between Voorhees and Secaucus. Amato testified that he asked his
supervisor, Ward Deska, why the work was being shifted to Voorhees. Deska responded that
the work is “down at Voorhees,” but did not respond further to Amato’s inquiry.
VI. The Layoffs of Ball, Amato and Fego
On June 16, Respondent laid off 18 employees at its Secaucus facility, which included
two supervisors, Ward Deska and Brad Fredericks. Respondent also laid off three employees
from its Voorhees facility on that date in sales, customer service and accounting classifications.
Included in this layoff were Amato, Fego and Ball, who are alleged discriminatees
herein. In this regard, General Counsel concedes that this layoff was motivated by economic
considerations but asserts that the selection of Ball, Fego and Amato for inclusion was unlawful
and was based on their union activities.31
The union activities of Fego, Amato and Ball are detailed above in the section detailing
with the union campaign and Respondent’s reaction to such a campaign.
Fego was hired by Respondent in October of 2008 as a second pressman. Prior to that,
he had 24 years of experience in the printing industry, including serving as a first pressman. He
worked on the first shift. Dan Johnson was the first pressman on the crew that Fego was
assigned to. Subsequently, Johnson was promoted to supervisor and Carl Chance replaced
Johnson as first pressman. Kevin Cole was also on that crew as a second pressman for some

30 In fact, Carter, Chavez and Taylor were hired by Respondent on June 16, 2009 and Marin
was hired on September 6, 2009.
31 I note that the Union’s charges and amended charges also alleged the Respondent
violated the Act by laying off employees, Joseph Fix, Louie Zayas, Fernando Rosado, Chris
Aviles, Lawrence Roessner and Hector Perez. General Counsel declined to issue a complaint
with respect to the layoffs of these employees.
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period of time before Cole was transferred to another crew.32
Fego never received any criticism from any supervisor about his performance on the job.
On occasion, he was told that the crew, him included, “did a good job.” Fego asked Valentine for
a raise. Valentine replied that Fego was a good worker, had good skills and that he (Valentine)
has been in business a long time and knew Fego’s experience level is high. However, Valentine
stated that there were quite a few guys that he wanted to give raises to, but he just couldn’t give
raises to anyone right now because it was just not in the budget.
Henry Ball began his employment with Respondent on February 24, 2008 as a stacker.
Seven months later, he was promoted to roll tender. He worked on the morning shift. Ball never
received any criticism of his performance from any supervisors. On June 16, Ball reported to
work but learned that there was no work. He decided to take one of his vacation days. When he
returned home, Ball received a call from Kanniard, Kanniard informed Ball that he was sorry to
do this over the phone, but “there was no work here, and we decided to lay you off.”
On the same day, Respondent sent identical letters to Ball as well as to the other
employees laid off on that date. The letter reads as follows:
June 16, 2010
Henry Ball
251 North Street
Prospect Park, NJ 07508
Dear Henry,
As we discussed, A.F.L. Quality NY LLC, Inc. (d/b/a AFL Web Printing)
(“AFL”) has found it necessary to reduce its staff due to the overall economic
environment in our industry. As a result of this decision, AFL has identified a
number of employees' whose employment will be terminated today, and
unfortunately this includes you. Thus, your employment with AFL will end today,
Wednesday, June 16, 2010. You will be paid through and including today, June
16, 2010. A separate check will be issued to include a severance payment equal
to (_1_) weeks of pay at your current wage, and any available unused and
accrued vacation time, as per company policy. Both checks will be issued on
6/25/10. These checks will be directly deposited (if you currently have that
option) on 6/25/10, and your direct deposit advice will be mailed to your home. All
live checks will also be mailed to your home.
If you participate in AFL's group medical, dental and/or vision insurance,
you will be provided coverage through the end of the month, and that coverage
will end on June 30, 2010. Information concerning continuation of group medical
and dental insurance coverage ("COBRA"), if applicable, will be mailed to you
shortly. AFL will also pay half of your July Cobra premium. If you elect to
continue your insurance via Cobra, please send your first month's Cobra bill to
Human Resources for the half month reimbursement. Should you have any

32 Cole was transferred at some point to the same crew as Mattei because they carpooled to
work together. Al Kowalen, another employee was also on that crew and also carpooled with
Cole and Mattei to work at Respondent.
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questions concerning COBRA, please contact the Plan Administrator at (609)
872-0001.
Your participation in AFL's group life insurance plan will terminate
effective June 16, 2010. However, there may be an option for you to convert this
coverage to an individual policy or replace this coverage with a private plan. If
you are interested in pursuing these options, please contact Fort Dearborn at 1-
800-348-4512 who will put you in contact with the appropriate person.
Your participation in AFL's 401(k) plan, if any, will terminate on June 16,
2010. Information concerning your post-employment options in connection with
your 401(k) account balance, if any, will be mailed to you shortly. Should you
have any questions concerning your 401(k) account balance, if any, you should
contact the Plan Administrator, John Hancock at 1-800-333-0963.
Under the circumstances, if you apply for unemployment compensation,
you will be eligible for that benefit. We have enclosed a completed BC-10 form
which you should use to apply for unemployment compensation benefits. Due to
State regulations, however, we will be required to notify the State of your receipt
of any severance benefits.
We wish you well in any job search that you might undertake.
Sincerely,
Susan Cohen
Director of Human Resources
Enclosures: Form BC-l0
cc: Personnel File
Amato was hired as a second pressman by Respondent on April 1, 2009. He worked on
the third shift. On March 16, 2010, Whitmoyer gave Amato a verbal warning for working on a
crossword puzzle while at work. The warning, which was memorialized in a company document,
entitled “Verbal Warning,” reads as follows:
AFL Web
Regional Print Center
Verbal Warning
Name and Employee ID: Craig Amato
Title: Second Pressman
Date of Hire: 4/1/09
Department: Pressroom
Supervisor: Keith Whitmoyer
Time in Position: 1 year
Subject: Standards of Performance and/or Conduct
The following incidents represent substandard performance or conduct. (Attach a
separate sheet if necessary for documentation)
1. AREA REQUIRING IMPROVEMENT – Be very specific; give examples of
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substandard performance/conduct; include dates of prior verbal warnings.
I walked up to F-1 at 11:30, I noticed Craig leaning over the console, I walked
over and saw he was working on a crossword puzzle. I asked him, are you
actually working on a crossword puzzle, he said yes. I asked him if I was working
for you would you want to pay me for working on crossword puzzles? He said no.
I said I don’t ever want to see him doing this again, understood? He said yes.
2. REQUIRED STANDARDS – Clearly describe to the employee a fully
acceptable level of performance or conduct in the area(s) cited above.
Be attentive to his work.
3. DISCLIPLINARY ACTION – State the precise action you will take if
substandard performance or conduct continues.
Craig needs to be focused on his work, if he continues this type of behavior it will
lead to further disciplinary action up to and including termination.
4. SIGNATURES
I discussed the contents of this notice with the employee. I have advised the
employee of his/her opportunity to respond either verbally or in writing.
Keith Whitmoyer – 3/16/10
Supervisor’s/Manager’s Signature and Date
My supervisor has discussed the above mentioned issues with me. I understand
that I am required to sign this form as acknowledgement that these items have
been discussed with me. My signature on this form is not necessarily an
indication of my agreement with the information presented within this document.
Furthermore, I understand that I have the right to provide verbal or written
response to the issues outlined in this document. If the terms of this warning are
successfully met, consideration will be given to ''removal" from this written
warning. However, if the problems outlined above are not corrected within ____
day, further disciplinary action as noted in Section 3 will be implemented.
(Verbal)
Employee Signature and Date
Hager, Cohen and Rittereiser were once again Respondent’s principal witnesses in
explaining Respondent’s decision to layoff Amato, Ball and Fego. Thus, they corroborate each
other that Respondent’s financial difficulties continued, notwithstanding the layoffs of April 2,
including notification in late March or early April that Respondent was going to be losing another
large account (CNG), which amounted to approximately 120-150 hours of work per week. At
that time, the specific date for this account was uncertain. However, Respondent decided that
the loss of this account would require future layoffs and that it would use the same ranking
system utilized in the April 2, 2010 layoffs, whenever the next round of layoffs would be
effectuated. This decision was confirmed in the email from Cohen to Valentine and Hager. The
email reads as follows:
Mike,
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As per our conversation last week in Secaucus and this morning, due to the loss
of the CNG account in the near future, we will use the ranking system we
recently used, for any staff reductions that are being planned at this time. The
determination will again be made based on performance and we’ll use the same
4 performance criteria on the ranking document. You already have the press
ranking document. Let me know if there is anything else you need.
Susan
During the month of April, Hager testified that he and Henderson had continued
discussions with CDG representatives, including Michael Healy, concerning Respondent’s plans
to reduce costs and increase efficiencies. As a result of that discussion, according to Hager, it
was decided to layoff 9 management sales and general administrative employees. This list
encompassed 8 employees of Respondent at Voorhees, which included its chief financial
officer, Robert Bechtel, and one employee at Secaucus, Keith Whitmoyer, pressroom manager.
Respondent did not use the ranking system used by it in its February 2009 layoffs, even though
Cohen’s April 12 memo seemed to reflect that future layoffs would be using that ranking process
and forms.
Thereafter, discussions continued between Hager, Henderson and the various
representative of CDG, such as Healy, Barry Shea and John Strek, in regard to progress to
increase profitability and efficiencies, including staff reductions. These plans also included a
continuation of the “rebalancing” of accounts between Voorhees and Secaucus that had begun
in March, prior to the April layoff.
According to Hager, Respondent was trying to maximize that amount of hours that were
unmanned in the Voorhees facility. Respondent did not feel that it would be getting more work in
Voorhees, so it needed to fill in more hours on unused presses in Voorhees. When asked why
Respondent didn’t decided to layoff Voorhees press employees, Hager responded that
Voorhees did not have full shifts, so he need to balance out the work because it is inefficient to
shut a press down because it could have some work. Thus, Hager explained that he tried to
make sure that each of the crews was filled up more efficiently.
Various emails were sent between Respondent’s officials in early May, detailing the
progress of the “rebalancing” of accounts as well as the staff reduction decisions. They revealed
that a number of accounts were transferred from Secaucus and one large account, WWD, was
transferred from Voorhees to Secaucus because the client preferred to have the job run closer
to the New York area.
In a May 11 email from Hager to Healy, Shea and Strek, it states as follows: “CNG
notified and agreed to final print day of 6/4. Susan beginning preliminary work with Secaucus
management to start grading direct labor employees to finalize reduction list.”
Thus, at that point, Respondent was aware that the final print week for the CNG account
would be 6/4 and then decided that there would be layoffs primarily at Secaucus, starting on
June 14. As noted above, the layoffs were due for the most part to the loss of the CNG account,
which was performed in Secaucus and which amounted to the loss of approximately three
crews of work per week.
The ranking forms were distributed by Cohen to be completed by Rittereiser and McNair,
who had replaced Whitmoyer as pressroom manager, who was laid off on April 19 and who had
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ranked the employees for the April layoff. On May 14 at 5:25 p.m., Rittereiser sent in his
rankings of the press employees to Valentine. These rankings were eventually combined with
McNair’s rankings.
Rittereiser also testified concerning his rankings in May. He asserted that he rated Fego
as a 3 in technical skills. As to productivity, Rittereiser again gave Fego a 3 “based on my
observation of his productivity.” Rittereiser explained that he ranked Fego as a 2 in reliability
because Respondent had been needing employees to work overtime, and Fego was turning
down the opportunity to work overtime. Rittereiser explained his decision to give Fego a 2 in
teamwork as follows: “About the same, but leaving the team at a disadvantage.”
Rittereiser also testified about his May rankings for Amato. Rittereiser gave Amato a 2
for teamwork skills because “Craig’s skills weren’t where they should have been.” In comparison
to Fego, who was rated a 3 on technical skills, Rittereiser testified that Fego “was able to
troubleshoot things a little bit better.”
Rittereiser ranked Amato as a 2 in teamwork because “Craig had a tendency to not pay
attention to detail. He would turn his back to the press, be on his phone. I think he was written
up for instead of watching his ink and motor, doing crossword puzzles. That impacted on his
score.”
Rittereiser gave Ball a 3 in all four categories because, in his view, based on his
evaluation of Ball, he was “average.”
Rittereiser testified further that he was not aware of whether Amato, Ball or Fego
engaged in any union activities and that his rankings of them and nothing to do with any union
organizing activity.
After Rittereiser submitted his rating to Valentine, Valentine combined the ratings
submitted by McNair into a single document, which he used to formulate his recommendations
as to which employees to layoff as of June 14.
On May 16, 2010 at 2:14 p.m., Valentine sent an email to Hager and Cohen attaching
the combine rankings of the press employees, plus his recommendations as to how to
implement the layoffs. It reads:
Jim,
Here is the ranking of the press employees. Due to the decrease of business,
here is what I propose:
1. John Contreni, John Bayard and Jeff Willison go from Lead Pressmen
positions down to 2nd Pressmen. Their pay would drop down to the same
rate as Mike Golgates, which is around $23.40 per hour. Susan can
verify. Whenever these three pressmen would do Lead Pressmen duties,
they would be compensated at $25.00 per hour.
2. Norma Sanchez would be transferred from the Press Department into the
Finishing Department. Her pay rate would stay the same.
3. Layoffs of Second Pressman – Hector Perez, Richard Fego, Eddie
Bacon, Joseph Fix, Larry Roessner, Nate Thomas and Craig Amato.
4. Layoffs of Roll Tenders – Henry Ball and Louis Zayas.
5. Layoff of Press Helper – Christopher Aviles.
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6. Layoffs of Press Supervisors – Ward Deska and Brad Fredericks.
Mike
Subsequent to the receipt of this document, Hager, Cohen and Valentine discussed
Valentine’s recommendations in this regard. In these discussions, Valentine recommended to
Hager and Cohen that Respondent not layoff any first pressmen at that time because they were
highly skilled and knowledgeable. Thus, although John Contreni, John Bayard and Jeff Willison
were the three lowest scoring first pressmen in the combined rankings, Valentine instead
recommended that they be demoted to second pressmen with a consequent reduction in pay
and that instead six second pressmen be laid off.33
Hager testified that he agreed with Valentine’s recommendation that it was a wise idea
to keep skilled first pressmen and instead demote the three lowest scoring first pressmen and
layoff second pressmen in their place. However, Hager did not agree with Valentine’s
recommendation to reduce the pay of the three demoted employees because he felt that new
work would be coming in, and they would be promoted back to first pressmen. Thus, he
concluded that there should be no pay reduction, despite the demotion for the employees. Aside
from that change, Valentine’s recommendations were accepted.
Additionally, Rittereiser was asked to rank the employees in the finishing department. He
did so using the same ranking system utilized with the other employees. Rittereiser ranked 25
employees (machine operators and line feeders) and 3 supervisors. He sent his rankings to
Valentine on May 14 at 5:25 p.m.
On May 26, Valentine sent an email to Hager and Cohen, attaching these rankings and
recommending that due to the decrease in business, he recommends that machine operator,
Nancy Aziani, and line feeders, Jorge Dominguez and Lupe Rosas be laid off.34
Rittereiser was also asked to, and did, rank Respondent’s four employees in the pre-
press department using the same system. On Monday, May 17, based on these rankings,
Valentine sent an email to Hager and Cohen, attaching Rittereiser’s rankings for these
employees, and proposed that Respondent layoff Jennifer LaManna, the lowest ranking of the
four employees in this department “due to the decrease in our business.”
The recommendations of Valentine were approved by Hager, and LaManna, Dominguez
and Rosas were also included in the June 16 layoff.
Subsequently, Valentine recommended to Hager that due to additional downturn in
business that Jim Billerman, another machine operator from the finishing department, be laid off
and that Respondent transfer Ava Setano from Respondent’s Voorhees facility to Secaucus
because she was familiar with the WWD job, which was being transferred to Secaucus.
Valentine then recommended that as a result of the transfer that Scott Harris, another operator,
be laid off. These recommendations were also approved by Hager, resulting in an email from
Cohen to Valentine and Hager, dated May 24. The email also states, “This is what the list is like
as today. We still have time to make changes. So we can discuss further.” According to Hager,
there were no further changes made, and the decision was made as of that day, May 24, to be

33 Hector Perez, Richard Fego, Eddie Bacon, Joseph Fix, Larry Roessner, Nate Thomas
and Craig Amato.
34 These recommendations were based on the scores of these employees on the rankings.
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effectuated on June 4.
Respondent also decided in May to layoff three employees in Voorhees as of June 16.35
Finally, Respondent accepted Valentine’s recommendations made on May 17 that Mark
Roy be laid off as a supervisor. However, Roy resigned before being notified of his layoff. On
that same date, May 17, Valentine recommended that Respondent stop using a number of its
temporary employees in the maintenance and finishing department. This recommendation was
also approved, and Respondent stopped using temporary employees between June 4 and June
11.36
Thus, according to Hager, the decision was made to layoff employees on June 14, and
the list of employees to be laid off in Secaucus was detailed in Cohen’s May 24 email. As noted,
although the email states, “We still have time to make changes,” no such changes were made,
according to Hager’s recollection.
The petition was filed, as detailed above, on May 25 and received by Respondent on
May 26. The petition for the unit consisted of “all pre-press and press lithographic employees”;
excluding, clericals, guards and supervisors. As was also noted above, a representation hearing
was held during, which Respondent took the position that first pressmen were supervisors. The
director found that these employees were not supervisors, and the election was directed in a
unit, which included these employees.
On June 16, the layoffs were effectuated. The list of employees laid off consisted of 18
employees from Secaucus37 and 3 from Voorhees.38
The final list is not precisely consistent with the May 24 list, which, according to Hager’s
testimony, was not changed, as far as he recalled. Thus, Scott Harris and Brenda Deliz,
machine operators, were on the May 24 list, but not on the final layoff list submitted by
Respondent of employees laid off on June 14. No explanation was offered by Respondent for
this discrepancy, but it may simply have been an oversight or that Harris and Deliz resigned
between May 24 and June 14, so they were, therefore, no included in the final list of employees
laid off.
Respondent recalled Amato on January 13, 2011 and Fego on January 30, 2011.
Subsequently, Amato was promoted to first pressman.
VII. The July Conversation between Kanniard and Valentin
As related above, an election was directed by the Region and was held on August 4.

35 Special project coordinator Lenore O’Brien, customer service representative Misty
Kohlmeyer and account executive Robert Laney.
36 These temporary employees were never employed by Respondent but, instead,
employed by an outside contractor.
37 Perez, Fego, Bacon, Fix, Roessner, Thomas and Amato, second pressmen; Ball, Zayas,
Rosado, roll tenders; Aviles, press helper; LaManna, pre-press digital operator; Aziani and
Billerman, machine operators; Dominguez and Rosas, line feeders; and Deska and Fredericks,
press supervisors.
38 Laney, account executive; Kohlmeyer, customer service representative; and O’Brien,
special projects coordinator.
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Edwin Valentin was employed by Respondent as a roll tender on the second shift. Valentin was
eventually terminated by Respondent on September 7, 2010, allegedly for “insubordination.”39
Valentin sign a card for the Union, attended meetings at the Tick-Tock Diner and spoke
to other employees at work about supporting the Union. Valentin was not laid off in either the
April or June layoffs, discussed above.40 In early July, Valentin and Kanniard were discussing
the upcoming election and the Union. Kanniard told Valentin that it was not a smart idea to vote
the Union in and if the Union was brought in, the place will shut its doors. Kanniard also
informed Valentin that if the Union came in and there was a strike or a lockout, he had a lot of
friends from upstate New York, who were formerly employed by DGM that installed the presses
that are out of work, who the company could bring into to install the presses.
Kanniard also told Valentin that if the Union was voted in next month, “We got our eyes
on another plant, and we’ll move the presses.” Kanniard added that the employees were stupid
for trying to unionize the place because the investors, who took over AFL, don’t have any
money to negotiate with the employees. Kanniard said that the reason for the layoffs was that
the investors wanted a certain percentage of payroll cut out. Kanniard also informed Valentin
that he has a union card and belongs to a union in New York. Valentin asked how Kanniard can
talk bad about the Union when he belongs to a union himself. Kanniard replied that he uses the
union card whenever he goes back home and he uses the union card to make more money.
Later on, in July, during a different conversation, Valentin asked Kanniard whether Ward
Deska was one of the snitches giving management information about employee union activities.
Kanniard replied that Deska had given the company information about union meetings and that
at one of the union meetings at the Tick-Tock Diner, supervisors were hiding in a truck or a SUV
outside the diner and watching everybody going in and out of the diner.41 According to Valentin,

39 The Charging Party filed a second amended charge against Respondent, adding an
allegation that Respondent violated the Act by laying off Valentin on September 7 in retaliation
for his engaging in protected concerted activities. The Region declined to issue a complaint as
to that allegation in the charge.
40 In the rankings for the April layoffs, Valentin received a combined score of 15, tied as the
highest score of all the roll tenders. No roll tenders were laid off at that time. As noted the three
pressmen laid off at the time, Wallace, Mattei and Cole, had scores of 9, 9, and 8, respectively.
For the June layoffs, Valentin received a combined ranking of 13. The three roll tenders, who
were laid off at the time, Ball, Zayas and Rosado, received scores of 12. Seven second
pressmen were laid off. Their scores ranged from 10 (Amato and Fix) to 13 (Perez). Aviles, a
press helper, received a score of 10 and was laid off as well. Machine operators, Billerman and
Aziani, received scores of 14 and 12, respectively and were also laid off. Similarly, line feeders
Dominguez and Rosas and pre-press digital operator LaManna with scores of 12, 12 and 13,
respectively were also laid off. Finally, Respondent also laid off supervisors Deska and
Fredericks on June 16, who received scores of 15 (lower than scores of 16 for Kanniard,
pressroom trainer and 16 for Metz listed as press supervisor).
41 Valentin was one of the employees, who attended the meetings at the Tick-Tock Diner.
As noted above, he was not laid off. Additionally, according to Valentin, roll tender Luis
Hullacoponna was at the meetings and signed a union card. He also was not laid off.
Hullacoponna’s combined scores on his rankings were 15 for the April layoff and 14 for the June
layoff, which rankings were submitted on May 12. Zayas was also present at the Tick-Tock
Diner and signed a card. He was not laid off in April, but was laid off in June. However, as
noted, he was not alleged to be a discriminatee. Zayas scored 11 on the March 19 rankings,
used for the April layoffs and a 12 on the May 12 rankings, used for the June layoffs, wherein
Continued
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he was aware that Ward Deska was on “thin ice” with the company because Deska had
substance abuse problems, and the company was always helping Deska out. Valentin further
testified that he asked Kanniard about Desks possibly being one of the “snitches” because
Kanniard “always had information about everyone in the plant regarding anything they did or
anything that was going on. He was the guy that knew information.”42
My findings concerning the above July conversations between Kanniard and Valentin is
based on a compilation of the credited portions of the testimony of Kanniard and Valentin as
well as Valentin’s affidavit. While there was some uncertainty in Valentin’s testimony concerning
precisely what Kanniard said in certain respects, overall I found him to be credible and his
testimony generally consistent in most respects on cross-examination and with his affidavit. I
also note that some of the comments made by Kanniard during these conversations, particularly
that Respondent would shut its doors if the Union was brought in, was consistent with
statements that I have found above were made by Kanniard himself to other employees and by
Forchic to employees at group meetings. Finally, I also note that Kanniard did deny that he told
any employee that he had former workers that could come over and run the plant in the event of
a strike or that the company had another site that they were going to move to if the Union got in.
Kanniard also denied that he told Valentin or anyone else that he knew who was a company
snitch or that Deska was an informant or a company snitch,43 or that the Union is not a good
idea. Significantly, Kanniard did not deny making any of the other comments attributed to him by
Valentin, as I have outlined above, particularly that Respondent would “shut its doors” if the
Union was brought in. Indeed, Kanniard furnished no testimony as to what he did say to
Valentin during these July conversations about the Union or the pending election. Nor did
Kanniard deny that he ever had any conversations about the Union or the election with Valentin.
Accordingly, based on the above reasons, I credit Valentin, as I have detailed above,
concerning the statements made to him by Kanniard in their conversations in July.
VIII. Analysis
A. The Status of Kanniard
The complaint alleges that Kanniard has been an agent of Respondent since November
of 2009 and a supervisor and agent of Respondent since June of 2010. I find these assertions
somewhat perplexing based on the record evidence as well as my examination of General
Counsel’s brief. While the complaint alleges that Kanniard became a supervisor and an agent of
Respondent in June of 2010, there is not a scintilla of evidence in the record that indicates any
change of status for Kanniard in June of 2010. To the contrary, the parties have stipulated that
Kanniard became a supervisor in October of 2010.
It appears that General Counsel has abandoned any contention that Kanniard became a
supervisor in June since it makes no such suggestion in its brief. Indeed, while the status of
_________________________
Zayas was included. Valentine also was aware that Rodney Carter had signed a union card, but
wasn’t sure if he did so at the meetings as the Tick-Tock Diner. Carter, a first pressman, was
not laid off either time. His scores were 15 and 19, respectively on the two layoffs. As noted, no
first pressmen were laid off in June, but three were demoted to second pressmen (Bayard,
Willison and Contreni). Their scores were 13, 12, and 13, respectively.
42 In fact, by the time of these conversations, Kanniard had been promoted from press
trainer to press supervisor.
43 Kanniard also testified that he did not know anything about a company snitch.
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Kanniard was litigated extensively, there is no record evidence that Kanniard exercised any of
the indicia set forth in Section 2(11) of the Act at any time prior to his admitted promotion in
October.
General Counsel has pointed to no such evidence, so I conclude that this complaint
allegation has been implicitly withdrawn. In any event, I shall recommend that it be dismissed.
That still leaves the crucial issue for determination of whether Kanniard has been an
agent of Respondent within the meaning of Section 2(13) of the Act.
In this regard, the Board applies common law principles when examining whether an
employee is an agent of the employer. Apparent authority will result from a manifestation by the
principal to a third party that creates a reasonable basis for the latter to believe that the principal
has authorized the alleged agent to perform the acts in question. Southern Bag Corp., 315
NLRB 725 (1994). The test is whether, under all the circumstances, “employees would
reasonably believe that the alleged agent was acting on behalf of management when he took
the action in question.” California Gas Transport, 347 NLRB 1314, 1317 (2006); Great American
Products, 312 NLRB 962, 963 (1993). As stated in Section 2(13) of the Act, when making the
agency determination, “the question of whether the specific acts performed were actually
authorized or subsequently ratified shall not be controlling.”
I conclude based on my evaluation of the evidence, detailed above, concerning
Kanniard’s functions, responsibilities and conduct, in agreement with General Counsel that the
employees, here, would reasonably believe that Kanniard was reflecting company policy and
speaking for management when he engaged in the conduct that I described above in the facts
section of this decision, i.e. his comments to employees about the Union and the layoffs of
employees.
Here, while I have found that Kanniard did not exercise supervisory responsibilities
sufficient to establish 2(11) supervisory status, his position and duties are relevant in
determining agency status. It is well-settled that agency can be established when the employee
is held out as conduit for transmitting information to the employees. D&F Industries, 339 NLRB
618, 619 (2003); Hausner Hard-Chrome of KY, 326 NLRB 426, 428 (1998).
The evidence discloses that Kanniard’s primary responsibility was that of a trainer. In
that capacity, he trained employees on how to operate and maintain the presses and other
equipment. He was responsible for training employees on safety matters as well. In connection
with these responsibilities, he assigned work to employees, was involved in overtime scheduling
and assignments, and at times, moved and changed assignments of employees from one job to
another, had keys to the facility, and at times, he was in charge of the facility (on weekends) and
was the highest ranking official present at that time.
Further, Kanniard was a salaried employee, was paid substantially higher than other
employees and was treated by Respondent as an exempt employee. Indeed, when Respondent
ranked its employees for layoff purposes, it ranked Kanniard in a group with other exempt
employees, who were all 2(11) supervisors.44
I find that the above evidence is sufficient to establish that employees would reasonably
believe that Kanniard spoke to employees as a representative of management in these various

44 Deska, Fredericks and Metz.
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matters, such as in training and direction of work, overtime, safety and changes in work
assignments and that employees perceived them as much. D&F Industries, supra.
Thus, based on the foregoing evidence, I conclude that Respondent vested Kanniard
with sufficient apparent authority to conclude that Kanniard served as a conduit between
management and employees and that employees would reasonably believe that Kanniard was
“speaking and acting for management” in his comments to employees. D&F Industries, supra,
339 NLRB at 619 (assistants to packaging manager moved employees from one job to another,
administered employer’s policies regarding overtime and relayed management’s positions and
views to employees); Bill’s Electric, Inc., 350 NLRB 292, 301 (2007) (foreman found to be agent,
who assigned and reassigned work to employees, conducted safety meetings, conducted
training classes and assigned overtime and had higher pay than other employees); Poly-
America, Inc., 328 NLRB 667, 673 (1999) (load men and trainer were agents, who assigned
work, provided safety education, taught employees how to perform work, communicated
management’s views and positions on employment matters); Tim Foley Plumbing Services, 332
NLRB 1432, 1433, 1439 (2000) (highly-paid plumber, who was, at times, highest ranking
employee on job site, in which he assigned and directed work of employees); Tyson Foods, Inc.,
311 NLRB 552, 561-566 (1993) (trainer found to be an agent, who showed employees how to
perform their jobs, a function previously performed by supervisors and conveyed to employees
employer’s policies, philosophies and procedures); Pitt Ohio Express, 322 NLRB 867 fn. 2
(1997) (inbound planner found to be agent, where he assigned work, redirected work
assignments as needed, was salaried and only employee with his status on duty at night); Great
American Products, supra, 312 NLRB 962, 963 (lead man assigned work and moved
employees from machine to machine); Portsmouth Ambulance Service, 323 NLRB 311, 314
(1997) (agent in charge when managers not present, assigned work to employees and
maintained keys to offices); Hohn Industries, 283 NLRB 71, 73 (1987) (lead person found to be
agent, who is conduit of orders and instructions from management, assigns work and maintains
his own office at plant); Hausner Hard-Chrome, supra, 326 NLRB at 428 (department heads’
agents communicated instructions from management and implemented company policies on
production floor); Corrugated Partitions West, 275 NLRB 894, 961 (1985) (lead man agent , who
was in charge of shift, highest ranking employee in plant at time, assigned work and conduit
between management and employees); William Chalson & Co., 252 NLRB 25, 34 (1980)
(assistant foreman distributed work to employees and shared an office with admitted
supervisor); Pittsburgh Metal Lithographing Co., 158 NLRB 1126, 1132, 1158 (1966) (agent
assigned work to employees as well as overtime).
Another factor that the Board considers in assessing agency, although not dispositive, is
whether the statements of the alleged agent were consistent with statements or actions of the
employer. Pan-Oston Co., 336 NLRB 305, 306 (2001). The Board has frequently placed
significant reliance on such consistency in supporting its finding of agency status. D&F
Industries, supra, 339 NLRB at 620; Hausner Hard-Chrome, supra, 326 NLRB at 428; Southern
Bag, supra, 315 NLRB at 735; Great American Products, supra, 312 NLRB at 963; Dentech
Corp., 294 NLRB 924, 926 (1989); Jules V. Lane DDS, 262 NLRB 1182 (1982); Community
Cash Stores, 238 NLRB 265, 266 (1978); William Chalson, supra, 252 NLRB at 34. I find that
the facts here strongly support the principles in the above cited precedent.
As detailed more fully above, Kanniard told Valentin in July of 2010 that if the Union
comes in, Respondent would move and shut its doors. He also told Perez in March of 2010 that
if the Union gained ground in organizing the shop, one option considered by Respondent was to
close Secaucus and move work to Voorhees. These comments were similar to Forchic’s
remarks to employees at meetings in late 2009 that he would not bargain with a union and close
down the shop rather than let a union come in. Similarly, Kanniard himself at meetings with
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employees in 2009 also told employees that based on his experience with unions in past jobs,
all the union is going to do is to come in and “shut the doors.”
Further, Kanniard told Perez in January of 2010 that Respondent had been aware of
union activity, had pictures of individuals gathering and meeting with union officials at diners and
added that it was only a matter of time before Respondent “got rid of them all” and specifically
named Wallace, Cole and Mattei as individuals, who “were in for a rude awakening and they
would be the first to go.” Similarly, Kanniard told Fego during a conversation in May that
Respondent “knows that you’re trying to organize the place. They think that you’re number one
on the list.” Kanniard’s comments to Fego and Perez in this regard mirrored similar statements
made by: supervisor Deska to Wallace (“watch your ass, they’re watching you, you need to
watch out what you say to people”); Fredericks telling Wallace that he needs to stop talking to
people that “they’re watching you, they think that you’re the organizer;” Whitmoyer instructing
Wallace that he needs to stop talking to fellow workers about the Union; Valentine telling
Wallace to “back off a little” in trying to convince employees to support the Union; supervisor
Johnson telling Ball to watch himself because someone was “ratting” to the bosses and
providing names of union supporters, which included several specifically named employees;
Johnson informing Fego that Respondent knew that employees were trying to organize for the
Union and knew that Cole and Fego were among the employees organizing for the Union as
well as several instances of Fredericks interrogating employees about the union meeting at the
Tick-Tock Diner the night before. Therefore, I find that these similarities in statements made by
Kanniard to comments made by various management officials are strongly supportive of my
finding that employees would reasonably conclude that Kanniard’s statements in these areas
were reflective of Respondent’s position and views.
I also would find Kanniard’s agency status with respect to his comments at meetings
conducted by Forchic is established further by the circumstances of the meeting and Kanniard’s
having spoken to employees at Forchic’s request at a meeting in which Forchic expressed his
own anti-union sentiments. In such circumstances, Kanniard’s agency status could be found
independent of his job responsibilities and status, which I have found, detailed above, would
also be sufficient to deem Kanniard to be perceived by employees as speaking for
management. Thus, after Forchic gave his negative views on union representation, he asked
Kanniard to come up front, said to the employees that this is as you know Ken Kanniard and
that Ken is going to say a few words about his opinion on the Union. Kanniard then proceeded
to discuss his experience with unions in prior jobs and observed that all unions do is take your
money and do not do anything for the employees. Kanniard added that all the Union is going to
do is to come in and “shut the doors” and as a result employees lose jobs. At that point, Forchic
interrupted Kanniard and interjected, “I can’t say that, I won’t say that.”
I conclude that in these circumstances, Respondent by Forchic placed Kanniard in a
position in which employees could reasonably believe that his statements were made on behalf
of Respondent and reflected its policies. Beverly California Corp., 326 NLRB 232, 234-235
(1998) (rank and file employees found to be agents of employer, where administrator repeatedly
called on anti-union employees at captive audience meeting called by employer, who expressed
anti-union views, which dovetailed with Respondent’s position voiced in meeting); Allegheny
Aggregates, 311 NLRB 1165, 1166, 1168 (1993) (customer of employer, who employees
mistakenly believed was part-owner met with employees at a meeting in which company
president had been scheduled to attended; president, on advice of counsel, decided not to
attend meeting but asked customer to apologize to employees for his absence and to,
nonetheless, proceed with meeting; Board finds in these circumstances that customer was
agent for employer with respect to customer’s anti-union remarks); Futuramik Industries Inc.,
279 NLRB 185 (1986) (employee found to be agent of employer, where she stood alongside
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president during pre-election meeting and answered questions directed at president without
interference).
Respondent argues with respect to this meeting that Forchic’s statements to employees
that “I can’t say that, I won’t say that” after Kanniard’s remarks constitutes an effective
disavowal of Kanniard’s comments. I disagree. Forchic did not rebuke or criticize Kanniard for
making these statements nor did he disagree with the substance of the remarks or say that
Respondent had no intention of shutting the doors if the Union came in. He merely said that he
(Forchic) can’t say that, presumably based on his attorney’s advice. That statement did nothing
to dispel the impression among employees that Kanniard’s statement was consistent with
Respondent’s views but merely that Forchic cannot express it.
Lastly, I also rely in part on Respondent’s subsidizing the apartment of Kanniard as well
as the relationship between Kanniard, McNair and Valentine. Thus, Respondent paid for
Kanniard’s apartment, which he shared with McNair.45 Respondent provided this benefit to
Kanniard and McNair as an inducement to persuade them to work for it since they both had
families and homes in areas too far from Respondent to permit commuting. This benefit was not
provided to any rank and file employees. While it is certainly understandable that Respondent
would provide such a benefit to highly-sought skilled employees needed to assist Respondent to
show employees how to operate the new presses, it also demonstrates in my view that
employees, being aware of this arrangement, would be more likely to perceive Kanniard’s status
as managerial and his comments as coming from management.
Similarly, his relationship with McNair (with whom he shared an apartment) and with
Valentine also in my view would also have such an effect on employees’ perception of
Kanniard’s statements and conduct. Kanniard, McNair and Valentine were all formerly employed
by DGM and had all been involved in the installation of the DGM presses at Respondent’s
Secaucus facility. Valentine became the plant manager at that facility, and McNair was shift
supervisor. The three of them continued their friendship while employed by Respondent. They
were always together at work, ate lunch together, hung out together after work and according to
the perception of employees seemed to be “connected at the hip.” A number of employees
referred to them as “the three amigos.”
I find that this evidence is also supportive of my conclusion, set forth above, that
employees would reasonably view Kanniard’s comments to them concerning unions and
management as reflective of Respondent’s positions and views on these matters.
Accordingly, based on the foregoing analysis, I find that at all times since November of
2009, Kanniard has been an agent of Respondent under Section 2(13) of the Act.
B. The Alleged Threat to Close
I have found above that during a July conversation between Kanniard and Valentin
about the upcoming election, Kanniard told Valentin that if the Union was brought in, the place
will shut its doors. Kanniard also told Valentin that if the Union is voted in next month, “we got
our eyes on another plant and we’ll move the presses.”
I conclude that since, as I have found above, Kanniard was an agent of Respondent at
the time of his July comments, Respondent is responsible for his comments, particularly, where

45 Respondent also paid for McNair’s apartment.
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as here, they mirrored similar comments by Forchic to employees in 2009. I, therefore, find that
by the statements of Kanniard, Respondent has threatened to close the plant in violation of
Section 8(a)(1) of the Act. Stabilus Inc., 355 NLRB #161 (2010); Avondale Industries, 329 NLRB
1064, 1092 (1999).
C. The Layoffs
Here, General Counsel does not challenge the lawfulness of Respondent’s business
decision by Respondent that the layoffs were warranted and based on business considerations
in April and June 2010. General Counsel does contend, however, that Respondent unlawfully
selected the six discriminatees (Cole, Wallace and Mattei in April and Fego, Amato and Ball in
June), here, because of their union activities.
The analysis of discriminatory motivation cases involving alleged unlawful selection for
layoff is no different than typical discrimination cases where discharges or layoffs are alleged to
be motivated by union or protected conduct. Merrill Iron & Steel Inc., 335 NLRB 171, 173
(2001). The Board applies the test set out in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), wherein the General Counsel
must show by a preponderance of the evidence that protected activity was a motivating factor in
the decision to layoff these employees. In connection with this burden of proof, General Counsel
needs to show that the employees engaged in union or concerted activities, that Respondent
had knowledge of that activity and that Respondent demonstrated anti-union animus. Once the
General Counsel has made the required showing, the burden shifts to the Respondent to
demonstrate that it would have taken the same action, even in the absence of the protected
union activity. Merrill Iron & Steel, supra; Wright Line, supra.
Here, all of the elements necessary to establish General Counsel’s prima facie burden
are present with respect to all six discriminatees. All of them signed union cards, attended union
meetings and discussed the Union with their fellow employees at Respondent’s premises.
Cole and Fego were two of the three primary union advocates and contacts with union
representative Doklia during the union campaign.46
Cole, Fego and Puntiel were the three solicitors of employees’ signing cards for the
Union. They were subsequently joined by Wallace and Amato, who were initially skeptical of
supporting the Union. Wallace, in fact, was against unionization at the start of the campaign, but
felt rather that it would be better to negotiate directly with Respondent with himself as
spokesperson. In that regard, Wallace, who had previously engaged in discussions with his co-
workers concerning common complaints about their terms and conditions of employment,
prepared a set of proposals to present to Respondent on behalf of himself and other employees,
expressly to persuade Respondent to accede to these demands to head off the employees’
unionization campaign. Indeed, Wallace expressed these sentiments directly to management
officials, and Hager and Woodman met with Wallace to discuss and consider his proposals.
Although Hager was sympathetic to some of Wallace’s suggestions and recommended them to
Forchic, these recommendations were rejected.
Once Respondent failed to respond to Wallace’s proposals, he decided to change his

46 The third primary union advocate was Pedro Puntiel, who was the only employee present
with Fego at the initial first meeting with Doklia when organizing was discussed and cards were
first signed.
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mind about the Union and began to support the Union, starting in early 2010. He signed his
card, attended union meetings and began to earnestly solicit other employees to sign cards,
including speaking to employees working on other shifts, wherein Wallace would speak to them
when he was in early waiting for his shift to begin while the other employees were still working.
Wallace continued to engage in this conduct, even after being warned not to do so by several
supervisors (Woodman, Fredericks and Valentine).
Amato was initially uncertain about supporting the Union, but decided to do so in March
of 2010 and signed a card at the union meeting on March 19. After signing his card, Amato
spoke to several other employees about signing cards for the Union, wherein he would suggest
that these employees sign cards and/or meet with Doklia to discuss the Union and sign cards.
Amato arranged for a meeting between Doklia and two employees, who both signed cards for
the Union.
Neither Ball nor Mattei were active solicitors for the Union amongst the employees and
did not attempt to solicit other employees to sign cards. They did, as noted above, sign cards
and attended union meetings. Additionally, Mattei was an experienced employee and well-
respected by his fellow employees at Respondent and also carpooled to work with Cole, with
whom he also worked on the same crew along with Ball.
The evidence is more than sufficient to establish Respondent’s knowledge of the union
activities of and support of each of the six discriminatees. The most substantial evidence of
Respondent’s knowledge of union and protected activities exists with respect to Wallace.
Wallace initially was opposed to the Union because he felt that direct bargaining with employees
with himself as spokesperson would be a preferable alternative to unionization. In that regard,
Wallace engaged in protected concerted discussions with fellow employees concerning working
conditions and made to management a PowerPoint presentation of the employees’ demands
that he prepared. Thus, he was clearly engaged in protected concerted activities in such
conduct, which included discussions about these matters while these employees were working.
Respondent was clearly aware of such conduct by Wallace.
However, as noted above, when Respondent failed to timely respond to the suggestions
that Wallace made to Respondent about changes in working conditions, Wallace changed his
mind about the Union, signed a card at a union meeting and began to forcefully advocate for the
Union with fellow workers, including those who worked on different shifts from him before his
shift started.
I find the evidence establishes that Respondent became aware of this conduct by virtue
of the emails between management representatives, described above, wherein they discussed
supervisors warning Wallace not to talk about the Union to other employees while these
employees were working. These emails further convince me that despite Wallace’s admitted
continued assertions to management officials that he was not a union supporter, even after he
had changed his mind, signed a card and had started to solicit employees to sign union cards,
that management was skeptical of Wallace’s assertions in this regard and, in fact, did not
believe him. These emails also persuade me to discredit Hager’s testimony that he believed
Wallace’s assertions to him and other management officials that he (Wallace) was not a union
supporter. Hager was cc-ed on the emails from Valentine and Fredericks on January 16,
wherein all these management officials (Fredericks, Woodman and Valentine) concurred in the
belief that Wallace was not being truthful in his assertion to management representatives that
he is not a union supporter since he was observed by supervisors talking to employees about
the Union. Indeed, the emails confirm that supervisor Fredericks told Wallace that he “needs to
stop talking to his fellow workers about the union and start focusing on his job.”
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I also find Hager’s testimony that he is so busy and receives so many emails at work that
he does not remember seeing these emails from Valentine and Fredericks describing Wallace’s
union activities and their reaction to it, unpersuasive. Clearly the union organizing was of
concern to Forchic, Respondent’s president and chief executive officer at the time that the union
campaign started. Forchic was adamantly opposed to the unionization of Respondent’s
employees. Respondent immediately upon finding out that a union leaflet was found on a car
began anti-union supervisory training and held five meetings with employees, wherein he
expressed his and Respondent’s anti-union views, which included threats to close the plant.
Further, emails were sent between Respondents officials concerning articles in the press
detailing plant closings for possible use in future campaign meetings or leaflets. Thus, the union
campaign was a major issue for Respondent, and I find Hager’s testimony that he was busy and
that he didn’t remember management emails discussing perceived union supporters, such as
Wallace, to be unbelievable.
Hager’s testimony in this regard is further undermined by his own email to Cohen in
October of 2009, wherein he summarized his meeting with Wallace. Hager commented in that
email that Wallace had informed him at the meeting that the Union was not the way to go, but
added that Wallace is “very well versed in the workings of a union. Again, I want to take him at
his word but we need to manage this cautiously.” These comments by Hager to Cohen reflect
that he was obviously skeptical of Wallace’s denials of union interest, but would recommend
watching him carefully. Hager further attempted to explain his email by asserting that he thought
that Wallace was trying to ingratiate himself with Respondent and become a supervisor by
helping it to thwart unionization.47 Thus, when Respondent failed to either implement any of
Wallace’s suggestions to improve working conditions or to promote Wallace to supervisor,
Wallace became an active union supporter, as Respondent had feared, Respondent in general
and Hager in particular, became aware of that conduct. I so find.
Further evidence of Respondent’s knowledge of Wallace’s union activities is found in
supervisor Deska’s warning to Wallace in late January to “watch your ass. They’re watching
you. You need to watch out what you say to people.” Additionally, on January 11, Fredericks
informed Wallace that he needs to stop walking around and talking to people that they are
watching you and they think that you are the organizer.48
Finally, in late February or March, Valentine summoned Wallace into his office. Valentine
informed Wallace that an employee had complained to him that Wallace was intimidating them
into joining a union, and Valentine wanted it stopped. Valentine refused to disclose to Wallace
which employee had made such an accusation. Wallace denied to Valentine that he had
intimidated anyone, but admitted to Valentine that he had simply presented the pros and cons of
union membership and informed them to contact Doklia if they are interested and if they did they

47 I note that Hager’s email is corroborated by Cohen’s email, agreeing with Hager’s
summary of the meeting with Hager, in which she participated by conference call. Cohen
observed, “I agree that Joe is keeping all his options open, and though he says that the union is
not the way to go, he does seem to want to get something out of this for himself, and he likes to
be in the role of spokesperson and leader.”
48 I note that this conversation is essentially confirmed in Fredericks’ email to Valentine,
which was in turn forwarded to Hager with Valentine’s comments concerning the report to him of
the January incident between Whitmoyer and Wallace, wherein Whitmoyer again told Wallace
not to speak to employees before his shift and reflected Whitmoyer’s skepticism, concurred by
Fredericks that Wallace was not being truthful in his denials of being an union supporter.
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would be welcomed with open arms. Valentine then stated that he would appreciate if Wallace
“backed off a little.” This evidence further establishes that Valentine was aware that Wallace
was soliciting employees to join the Union and that Valentine asked him to “back off a little”
concerning such discussions of the Union with employees.
The evidence concerning Respondent’s knowledge of the union activities of Fego and
Cole is also compelling. Fego appeared to testify at the representation hearing on behalf of the
Union.49 In early May, Kanniard left an article on union pensions on Fego’s work area. Fego
wrote “thanks” on it and returned the article to Kanniard. Kanniard told Fego that he was only
joking . Later, on that day, Kanniard informed Fego that the “company knows that you are trying
to organize the place. They think that you are number one on the list.”
Furthermore, Whitmoyer was terminated by Respondent from his position as pressroom
manager on April 19. After he was terminated, Whitmoyer shook hands with the employees
under his supervision, including Fego, and wished them good luck. When he spoke to Fego,
Whitmoyer added, “Good luck with your union.”
Additional evidence of Respondent’s knowledge of Fego’s union activities is provided by
Fredericks’ approaching Fego the day after the union meeting at the Tick-Tock Diner, where
employees signed cards for the Union and Fego was present,50 and asked, “How the union
meeting went at the Tick-Tock Diner.”
Finally, supervisor Dan Johnson told Fego in January that Respondent knew that the
employees were trying to organize a union, and that he warned him to “be careful because the
company knew that he and Cole were trying to organize the union.”51
This conversation between Fego and Johnson is also probative evidence of
Respondent’s knowledge of Cole’s union activities. Further evidence of such knowledge
consists of Fredericks questioning of Cole about union meetings at the Tick-Tock Diner on two
separate occasions,52 Kanniard’s question to Cole (in Fego’s presence), “When the Union gets
in are you going to be the shop delegate or shop steward, and Johnson’s comment to Ball that
among others that Cole’s name, including Ball’s, was mentioned to management by an
employee (Ricky Lawrence) as a union supporter, and Fredericks’ comment to Perez in January
that Respondent had a picture of individuals meeting with union officials at diners, and
specifically mentioned the names of Mattei, Cole and Wallace as among those employees, who
were present and who Respondent would be “getting rid of.”
This conversation with Kanniard also supports an inference of Respondent’s knowledge
of Mattei’s (as well as of Wallace’s) union activities. I also note that Mattei carpooled to work
with Cole, which leaves some grounds for a reasonable assumption that Respondent might

49 Prior to the representation hearing on June 10, Valentine had a conversation with Fego
about the Union, wherein they discussed that Fego was in favor of the Union. Valentine urged
Fego to keep an open mind, and Valentine told Fego that he thought the employees were
“making a mistake.” Valentine reported his conversation with Fego in an email to Cohen and
Hager on June 11.
50 Fego had signed his card at a prior union meeting.
51 Johnson was a personal friend of Fego and had this conversation a few weeks before
Johnson left Respondent for a new job.
52 One of these interrogations involved Fredericks asking a group of employees, including
Cole, Mattei, Ball and two other employees.
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have believed that Mattei shared Cole’s well-known support for the Union.
As for Ball, he, as noted above, was among a group of employees, whom Fredericks
questioned about the meeting at the Tick-Tock Diner on December 10, 2009. As also related
above, Johnson spoke to Ball in January of 2010 and told him that employee Lawrence had
given the name of a number of employees to management as union supporters. Johnson
informed Ball that he was one of those names given to management and warned Ball that “you
need to watch yourself.” When asked what Johnson meant, Johnson informed him about
Lawrence “ratting” to the bosses and providing names of union supporters and told Ball to
“watch himself” and “work a little harder” and “keep his nose clean.” Also, sometime in April, Ball
and McNair were discussing unions, and McNair informed Ball that there is no union in
Tennessee, where Ball’s grandparents were from. McNair then asked Ball, “How do you feel
about a union being at AFL?” Ball replied, “I’m for a union.” The above evidence is more than
sufficient to establish Respondent’s knowledge of Ball’s union support and activity.
Finally, Amato signed his card on March 19 at a union meeting at the Legends Diner
along with employee Matt Deska. Shortly, thereafter, Perez and Kanniard were smoking a
cigarette in front of the premises when Amato and Fego passed them by and entered the
building. Kanniard informed Perez that Amato had attended a union meeting at the Legends
Diner and that Amato had signed a card. Kanniard told Perez that someone was providing
Respondent with this information, but did not tell Perez at that time who it was that had done so.
In May, Amato was told by Kanniard that he (Amato) was going to be the “next union
representative.” Furthermore, later on in May, Fredericks approached Amato while he was
talking to employee John Bayard. Fredericks asked them, “When is the next union meeting?”
I find the above evidence sufficient to establish that Respondent was also aware of
Amato’s support for and activities on behalf of the Union.
That leaves the last, and perhaps most significant, aspect of General Counsel’s burden
of establishing that a motivating factor in Respondent’s decision to select these employees was
their union activities and conduct, that is the presence of anti-union animus.
The evidence presented by General Counsel is compelling in this respect, particularly,
the comments of Kanniard, who, as detailed above, is an agent of Respondent under Section
2(13) of the Act. Thus, his statements made to employees are attributable to Respondent and
can be construed as reflective of Respondent’s policies and relevant to an assessment of
Respondent’s decision to select these six employees to layoff in April and June of 2010.
The only violation of Section 8(a)(1) alleged in the complaint is the threat to close the
plant by Kanniard in July, which I have found to be violative of Section 8(a)(1) of the Act. This
statement is a significant demonstration of animus, particularly, where it mirrors the similar
comments by President Forchic in his meetings with employees.
Respondent argues that animus, for the purposes of assessing discriminatory
motivation, cannot be found based on evidence that is not alleged as conduct violative of the
Act. It argues, therefore, that much of the evidence detailed above, revealing conduct and
statements made by various supervisors and agents of Respondent that could be construed as
unlawful threats, warnings, interrogations or giving the impression of surveillance cannot be
considered in establishing anti-union animus since there were no compliant allegations alleging
this conduct to be violative of the Act. International Alliance of Theatrical Stage and Moving
Picture Operators (Hughes-Avicom International), 322 NLRB 1064 (1997); Corry Contract, 289
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NLRB 396 fn. 3 (1988). I disagree.
The cases cited by Respondent deal with a different issue, dealing with the
appropriateness of making an unfair labor practice finding, where an allegation has not been
alleged in the complaint. That is not the issue here since I am not making a finding that
Respondent’s conduct in any of these incidents violated the Act. The complaint does not so
allege, and General Counsel does not request that I do so.
However, it is appropriate to consider this evidence in assessing animus, even though
the conduct could have been alleged independently as an unfair labor practice. Some of the
conduct, such as the comments of Forchic and Kanniard at the 2009 meetings, occurred outside
the 10(b) period and could not have been alleged as independent violations of the Act. Some of
the other conduct did occur within the 10(b) period, and while General Counsel could have
alleged this conduct as violative of the Act or request that the complaint be amended to do so, it
chose not to do so. Nonetheless, that does not preclude the General Counsel from relying on
such conduct as evidence of anti-union animus. Facchina Construction Co., 343 NLRB 886, 887
fn. 5 (2004).
Much of the evidence in this regard is detailed above in my discussion of the evidence
establishing Respondent’s knowledge of the union activities of the discriminatees, but it is also
probative of animus and the reasons for Respondent’s decision to select the employees for
layoff.
This evidence also is consistent with President Forchic’s statements of animus in his
2009 speeches to employees, wherein he threatened to close the plant if the Union came in. I
note further the evidence of emails in early 2010 amongst Respondent’s officials, wherein it is
clear that Forchic was intent on connecting the possibility of plant closure with the Union’s
becoming the employees’ representative in employees’ minds. It is true as Respondent argued
at trial in seeking to exclude this evidence at trial that Respondent has free speech rights to
disclose its views on union organization to employees and that in certain limited circumstances,
it can be appropriate for the employer to raise the possibility of plant closing in the context of a
discussion of the union.53 However, here, the statements made by Forchic as well as the similar
comments made by Kanniard do not come close to meeting the Gissel standard for a lawful
prediction and would be, and is, violative of the Act. Intermet Stevensville, 350 NLRB 1349 fn. 4
(2007). The emails referred to above, therefore, constitute additional evidence of animus
towards protected conduct of Respondent’s employees.
A significant portion of this evidence consists of conduct and statements of Kanniard.
Since I have found Kanniard to have been an agent of Respondent since 2009, his conduct is
attributable and relevant in assessing animus as well as the reasons for Respondent’s selection
of the six discriminatees for layoffs. D&F Industries, supra, 339 NLRB at 621, 622; Merrill Iron &
Steel, supra, 335 NLRB at 173 (agent’s prediction that company would get rid of union
sympathizers persuasive evidence of employer’s animus).
The evidence supportive of these conclusions includes: (1) Kanniard informing Perez in
January that Respondent had pictures of workers meeting with union officials at diner, it was
only a matter of time before the company “got rid of them all,” and that Cole, Mattei and Wallace

53 NLRB v. Gissel Co., 395 US 575, 616-620 (1969) (prediction of job loss or plant closure
can be lawful if carefully phrased on the basis of objective fact to convey an employer’s belief as
to demonstrate probably consequences beyond its control).
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“would be the first to go”; (2) in March, Kanniard informed Perez that Amato and Fego had just
come from the Legends Diner, where Amato had signed a card and that Amato, Fego and Ball
were next on the “company’s radar” and would be the next to be terminated; (3) Kanniard
informed Perez in March that Respondent was weighing several options in case the Union
gained ground in organizing the shop (the options mentioned by Kanniard included closing the
Secaucus plant and move all the work to Voorhees plant and added that someone had come in
to take measurements of the press in preparation for a move; the other option mentioned by
Kanniard was to bus the Voorhees workers into Secaucus and let them to the work).
These statements of Kanniard provide compelling evidence of animus and anti-union
motivation for Respondent’s selection of the six discriminatees.
Further evidence of statements from Respondent’s admitted supervisors also
corroborates Kanniard’s assertions. This evidence includes: (1) Johnson telling Ball in January
that he needed to watch himself and work harder because someone was “ratting” to the bosses
and providing the names to management of union supporters, which included Ball, Mattei and
Cole and urging Ball to “keep his nose clean;” (2) Johnson telling Fego in January that
Respondent knew that Cole and Fego were among the employees organizing for the Union and
warning Fego to “be careful.”
These remarks by Kanniard to Fego and Ball represent additional substantial evidence
of Respondent’s knowledge of union activities of Fego, Ball, Cole and Mattei, and which also
represents evidence of animus. Bruce Packing Co., 357 NLRB #93 ALJD slip op at 10
(September 28, 2011) (statement warning employee to “be careful” in context of discussion of
union activity, an implied threat of reprisal); Jordan Marsh Stores, 317 NLRB 460, 462-463
(1995) (statements by supervisor to employees to “watch out” and “watch your back” in
connection with union activity, implied threat of reprisal). Accord, Gaetano & Assc., 344 NLRB
531, 534 (2005); St. Francis Medical Center, 340 NLRB 1370, 1383-1384 (2003).
Similarly, Valentine’s comment to Wallace that he should “back off” in attempting to
persuade employees to support the Union and supervisor Deska’s statements to Wallace that
he should “watch your ass, they’re watching you, you need to watch what you say to people” are
further instances of implied threats of reprisal of Respondent’s animus towards Wallace’s
protected union activities.
The evidence also discloses that in 2009, shortly after the union meetings held at the
Tick-Tock Diner, supervisor Fredericks on three different occasions approached several
employees, including Fego, Cole, Mattei and Ball, and asked them how the union meeting had
gone at the Tick-Tock Diner. These comments of Fredericks would represent unlawful
interrogations as well as the creating the impression of surveillance had they been within the
10(b) period and/or alleged as violations of the Act. With respect to creating the impression of
surveillance, it is noteworthy that there is no evidence that the employees publicized either the
existence of or the location of the meeting. In such circumstances, it is reasonable to conclude
that since Fredericks did not disclose to the employees the source of this information that there
was a union meeting that employees attended at the Tick-Tock Diner, employees would
reasonably assume that their union activities were under surveillance by Respondent. Stevens
Creek Chrysler Jeep Dodge, 353 NLRB 1294, 1296 (2009) (questioning employees about
attendance at union meetings unlawful interrogation as well as creating impression of
surveillance); United Charter Service Inc., 306 NLRB 150, 151 (1992) (operations manager
created the impression that employees’ union activities were under surveillance by informing
them that he knew about the employees’ union meeting).
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Furthermore, I also found above that in July Kanniard told employee Valentin that at one
of the union meetings at the Tick-Tock Diner, Respondent’s supervisors were hiding in a truck
or a SUV outside the diner and watching everybody going in and out of the diner. I find that this
comment of Kanniard constitutes an admission that Respondent engaged in actual surveillance
of its employees’ union activities, which would be violative of Section 8(a)(1) if it had been so
alleged, but which I can and do consider as further evidence of Respondent’s anti-union
animus.
I also conclude in agreement with General Counsel that in several instances
Respondent’s conduct towards Wallace and Cole could have been violative of the Act had they
so been alleged and can be considered as further evidence of animus towards protected
conduct of its employees.
As I have detailed above, Whitmoyer warned Wallace on two occasions not to talk to
employees on the floor before his shift started, once in November of 2009 and again in January
of 2010, to get off the floor and wait in the lunchroom until his shift started. Whitmoyer further
told Wallace in January that if he kept this disruption up, Respondent would write him up.
Similarly, on January 16, Fredericks told Wallace that he needs to stop walking around and
talking to people. Notably, in Fredericks’ own email to Valentine reporting on the incident,
Fredericks stated that he told Wallace that he “needs to stop talking about the union and start
focusing on his job.”
I conclude that in each of these incidents, Respondent has warned Wallace not to speak
with other employees and to stay out of the shop until his shift starts in response to Wallace’s
engaging in protected conduct. Notably, prior to the union campaign and prior to Wallace
engaging in protected concerted conduct of discussing terms and conditions of employment with
his co-workers, Wallace had consistently arrived at Respondent’s premises prior to the start of
his shift and would normally spend time before his shift started talking to employees still working
on the preceding shift. He had never been spoken to about conduct by any supervisors and was
never informed buy supervisors that he must not be on the floor until his shift begins. Further,
Wallace had noticed employees coming in early and speaking to employees on other shifts, who
were still working, who were not spoken to by management about such conduct.
However, in November of 2009, after the start of the union campaign and after he began
to discuss both the union campaign and the employees’ complaints about working conditions
with employees working on the prior shifts, Whitmoyer called Wallace into his office. Whitmoyer
informed Wallace that Respondent did not want him on the floor talking to employees, who were
working before his shift started, because it was disruptive of their work. Wallace asked why all of
a sudden there is an interest now and inquired if it was because of the Union and added that he
was not “the organizer here.” Whitmoyer replied that the instructions had nothing to do with the
Union, but significantly did not answer Wallace’s inquiry as to why now “all of a sudden”
Respondent considered his talking to employees before his shift started to be disruptive of their
work.
It is also true that at that point in time, Wallace had not signed a union card and had, in
fact, been telling employees that in his opinion it is better to forgo union representation and
instead discuss improvements in working conditions directly with Respondent with Wallace as
spokesperson. Nonetheless, the union campaign had started and Wallace’s discussions with
employees on the prior shifts included these issues of protected activities.
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Since the evidence is uncontradicted54 that Respondent’s admonition to Wallace was
unprecedented and contrary to established past practices, Respondent has provided no
explanation why it suddenly considered Wallace’s talking to employees working on prior shifts to
be “disruptive” in November of 2009 when it had not done so in the past.
In these circumstances, I conclude that Respondent, by Whitmoyer’s conduct, unlawfully
prohibited him from speaking to employees and appearing on the floor of Respondent’s
premises until his shift started, which would be violative of the Act had it been alleged in the
complaint. Intermet Stevensville, supra, 350 NLRB at 1354, 1390 (employer’s conduct in
prohibiting employees from remaining in plant after ended and restricting them from talking
breaks in a different department, both contrary to past practice, found to be unlawfully motivated
by the advent of the union campaign).
This conduct was repeated by Respondent in January of 2010 by Whitmoyer and
Fredericks. Fredericks told Wallace to stop talking to fellow workers about the union and start
focusing on his work. In this same conversation, Fredericks informed Wallace that Respondent
was watching him and that Respondent thinks that he (Wallace) was the (union) organizer. This
incident was confirmed by an email from Fredericks to Valentine, which, in turn, was forwarded
by Valentine to Forchic, Hager and Cohen.
This incident clearly demonstrates, based on Fredericks own words that Wallace “stop
talking to fellow workers about the union,” that Respondent’s prohibition on Wallace’s conduct
was unlawful.
Eight minutes after Valentine forwarded Fredericks’ email to Cohen, Hager and Forchic,
he (Valentine) sent another email to these three Respondent’s officials. This email reflects that
Whitmoyer had informed Valentine that Wallace had come in early and started talking to
employees. Whitmoyer related that he told Wallace to get off the floor and wait in the lunchroom
until his shift started. Whitmoyer further told Wallace that if he kept this disruption up,
Respondent would write him up. Whitmoyer further ordered Wallace to get off the floor and wait
in the lunchroom until his shift started, coupled with a threat to write him up if he continues to
speak to employees would be a further instance of unlawful conduct. Intermet Stevensville,
supra. While, again, I cannot and do not make an unfair labor practice finding as to these
incidents, I can and do find them to be further evidence of Respondent’s animus towards
Wallace’s protected activities.
I find similarly with respect to Respondent’s conduct towards Cole. Thus, the record
establishes that prior to March 1, it was common practice at Respondent for both employees
and supervisors to use their cell phones on the job, even while the press was running. Cole had
done so many times in the past and had been seen by several supervisors, such as Johnson,
Metz and Fredericks, and even Valentine, and was never informed that this conduct was
forbidden or against company policy.
However, on March 1, while Cole was sending a text on his cell phone, he was
approached by Valentine. Valentine said to Cole, “This is fucking bullshit. You have a fucking
job to do.”
Later on in the day, Valentine called Cole into his office, gave him a “verbal warning,”
which Valentine confirmed in a written “performance note,” which was part of Cole’s personnel

54 Whitmoyer did not testify.
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file. The note reflects that Valentine informed Cole that he must pay attention to the presses
when a job is running and not doing other things and that Cole was informed that the meeting
constituted a verbal warning.
During this meeting, Cole complained that everyone hated working for the “three
amigos,”55 that they were ruining the company, nobody was getting paid what they deserved,
conditions weren’t fair, everybody, including Cole, was unhappy working there and Valentine
was the big problem. Valentine retorted that if Cole didn’t like working at the company, he could
“walk out the door.” Indeed, Valentine’s own performance note of the meeting reflects that Cole
stated that he and everyone dislikes working at Respondent and that Valentine was creating a
rift between supervisors and employees.
I find that this incident, like Respondent’s previously discussed conduct towards
Wallace, wherein it unlawfully prohibited Wallace from speaking to employees and appearing on
the floor before his shift was to start, was also motivated by Cole’s protected activities.
I note that similar to Wallace’s situation Respondent consistently permitted employees to
use their phones while working without incident or any indication that such conduct was against
company policy. However, on March 1, after the campaign had began, in which Cole was one of
the leaders of which Respondent was aware, as I detailed above, Valentine criticized Wallace
for using his cell phone and using profanity in doing so. Valentine issued a verbal warning to
Wallace for this conduct, which was confirmed in a performance report placed in Wallace’s
personnel file. I find that this unprecedented rebuke and warning to Cole for engaging in cell
phone use, accompanied by profanity, to be motivated by his union activities, which would be
violative of the Act if alleged. Intermet Stevensville, supra. Since there is no complaint allegation
asserting this conduct to be unlawful, I make no such unfair practice finding. I can and do,
however, as in the case of the conduct of engaged in with respect to Wallace, related above, as
well as other unalleged conduct by other supervisors and agents of Respondent, consider
Respondent’s criticizing Cole and issuing him a warning to be evidence of Respondent’s animus
towards Cole’s protected conduct.
I also note that during the meeting, in which he was warned, Cole engaged in protected
concerted activity by complaining to Valentine about common terms and conditions of
employment, including that he (Cole) and other employees hated working for the “three amigos”
(which included Valentine), nobody was getting paid what they deserved and conditions weren’t
fair. In response to this comment, Valentine replied that if Cole didn’t like working for the
company, he could “walk out the door.” Valentine’s comment to Cole in response to the exercise
of protected concerted complaints would represent another unlawful statement. The Board has
held that such statements convey the message to employees that complaints about working
conditions and employment are incompatible and implicitly threaten to discharge those, who
would voice them. Stoody Co., 312 NLRB 1175, 1181 (1993); Paper Mart, 319 NLRB 9 (1995);
Hialeah Hospital, 343 NLRB 391, 394 (2004) (statements made by employer that if employees
didn’t like working for employer, they could quit or seek other employment found to be implied
threats of discharge).
Once again, I find that this comment by Valentine to Cole, though not alleged as violative
of the Act, represents additional evidence of Respondent’s animus towards Cole’s exercise of
protected concerted conduct.

55 The “three amigos,” as noted above, was the nickname given by some employees to
Valentine, Kanniard and McNair.
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Based on the foregoing analysis and authorities, I conclude that General Counsel has
made an extremely strong and compelling showing that the protected conduct of the six
discriminatees was a substantial motivating factor in Respondent’s decision to select them for
layoff. This is particularly strong where the evidence discloses, as noted above, that supervisors
and agents of Respondent expressly predicted that the six discriminatees would be the next
employees to be laid off or terminated because of their union involvement.
Where as here, the General Counsel’s prima facie showing of discriminatory motivation
is strong, Respondent’s burden of proof under Wright Line to show that it would have taken the
same action is substantial. Wild Oats Markets Inc., 344 NLRB 717, 743 (2005); Vemco Inc., 304
NLRB 911, 912 (1991); Eddyleon Chocolate, 301 NLRB 887, 889 (1991).
Here, I conclude that Respondent has fallen short of meeting its substantial burden of
proof in this regard.
Respondent asserts that it selected the six employees for layoff along with numerous
others based on a uniformly applied system of evaluating employees based on a numerical
rating system previously used by Respondent in connection with prior layoffs and that the
decision to select the discriminatees for layoff as well as that of others laid off (not alleged to be
discriminatory) were based solely on their scores on Respondent’s rating forms. It further
argues that the decision makers involved in the decision to select the discriminatees for layoff,
including the supervisors directly involved in preparing the rating sheets, had no knowledge of
any specific individual’s union activities and did not exhibit any union animus in their conduct
and statements.
With respect to the latter to assertions made by Respondent, I have detailed above
extensively the evidence of knowledge and animus derived from conduct of a number of
supervisors and agents of Respondent, which are attributable to Respondent. Further,
Respondent’s assertion that the decision makers and supervisors involved in the ratings of
employees did not have direct knowledge of any specific union activities of any of the
discriminatees is not correct.
Thus, Hager, the primary decision maker in the decision to select the discriminatees for
inclusion in the layoffs, according to his testimony, was clearly aware of Wallace’s union
activities and support. I have, as detailed above, rejected Hager’s testimony that he believed
Wallace’s assertion to him and other management officials that he was not a union supporter to
be truthful. Indeed, several supervisors and managers have established that Hager was made
aware that these supervisors and managers (Fredericks, Valentine and Whitmoyer) all believed
that Wallace was not being truthful when he continued to insist to Respondent’s officials that he
was not a union supporter. Indeed, Hager was also aware of what I have found to be unlawful
warnings and prohibition issued to Wallace by management officials for engaging in union
activities. These unlawful warnings and admonitions were made by Whitmoyer, who was one of
the supervisors who prepared the rating sheets, and by Valentine, who was also involved in the
decision to layoff employees.56
Additionally, Forchic was still the president and chief executive officer of Respondent at

56 Although Valentine did not fill out the rating sheets, various emails as well as Hager’s
testimony establish that Valentine was involved in the decision as to which employees and/or
which classifications should be included in the layoffs.
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the time of both layoffs. Although Forchic’s testimony tends to show that Forchic had minimal
involvement in the decision-making process, Hager conceded that Forchic did approve Hager’s
recommendations concerning the employees to be laid off. As noted above, I have found that
Forchic threatened employees at group meetings with plant closure and was present and invited
Kanniard to speak at other meetings, wherein Kanniard made similar threats of plant closure to
employees.
Further, the testimony adduced by Respondent’s witnesses, who testified about the
selection process and decision, Rittereiser and Hager, I found to be vague, unconvincing,
uncertain and unpersuasive and far from sufficient to establish that Respondent would have
selected the discriminatees for layoff absent their union activities. For example, in testifying
about the April layoff, wherein Mattei, Wallace and Cole were the only three employees
selected, Hager was unable to recall any details of any discussion, wherein it was decided that
these three would be the ones to be laid off or which classifications would be included. When
pressed further, Hager testified that the loss of 40 hours of work per week (the loss of the
account that motivated the layoff) translated to a loss of a press crew a week. When pressed
further, Hager conceded that a press crew is normally four employees, one lead pressman, two
second pressmen and one roll tender. Hager further contends that his alleged recommendation
that a crew (4 employees) be laid off that somehow that number was reduced to three. Hager
speculated that Respondent did not layoff a roll tender because Respondent needed the roll
tender somewhere else or someone had left. However, he could not recall whether any specific
roll tender had been initially selected for layoff or when and how the decision not to layoff any
roll tenders was made.
Hager gave no testimony as to how or who made the decision of which classifications of
employees were to be laid off in the June layoff although it appears from an email that
Valentine, after consulting rating sheets, made specific recommendations to Hager, which he
accepted for the most part. Notably, Valentine did not testify, so there is no evidence how these
decisions were made, including how Valentine decided which classifications to include and how
or why he selected the amounts of employee in classifications to be included in the layoff.
There is evidence from Hager’s testimony that Valentine recommended to him that the
June layoff not involve any first pressmen because he didn’t want to lose the most highly skilled
employees. Rather, Respondent decided to demote several first pressmen to second pressmen
and layoff second pressmen instead. Hager asserts that he accepted Valentine’s
recommendation in this regard for those reasons.
However, this decision in June was inconsistent with Respondent’s actions in the April
layoff when it did select Mattei, a skilled first pressman, for layoff. When asked to explain this
inconsistency, Hager could give no cogent answer other than that Valentine had not made such
a recommendation with the April layoff. Since Valentine did not testify, Respondent provided no
explanation as to why Valentine did not recommend keeping all skilled first pressmen in April
(when Mattei was laid off) but recommended excluding all first pressman from layoff
considerations in the June layoffs, but instead demoted several first pressman and laid off
second pressmen. Therefore, Respondent provided no explanation for why it did not demote
Mattei in the April layoff and layoff another second pressmen as it did in the June layoffs with
respect to several first pressmen not alleged as discriminatees.
Additionally, Respondent furnished no testimony from either McNair or Whitmoyer, who
were both involved in the filling out of the rating sheets as to how and why they filled out their
ratings and what considerations they used in making their evaluations. Indeed, there is no
testimony from either Whitmoyer or McNair that they did not consider the union activities of the
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discriminatees in their evaluations. While I do recognize that Whitmoyer, McNair and Valentine
are no longer employed by Respondent that does not preclude it from calling them as witnesses
as it did with Cohen, who is also no longer employed by Respondent at the time of the trial.
Since it is Respondent’s burden of proof that is being evaluated, the absence of probative and
important testimony on these issues from these witnesses can be considered in finding that
Respondent has failed to meet its burden of proof.
Respondent did present Rittereiser as a witness, but his testimony provides little support
for Respondent’s defense. To the contrary, his vague, conclusionary, self-serving and
inconsistent testimony serves only to undercut Respondent’s defense. Essentially, the testimony
of both Rittereiser and Hager is that Respondent utilized its “neutral” rating system in order to
decide which employees were to be included in the layoffs. They claim that this system was
based on the supervisor’s honest and reasonable belief as to the abilities of its employees as
compared to other employees, who were not selected for layoff. In that connection, in order to
meet its burden of proof, Respondent must show that it applied its selection criteria in a
consistent manner that would have led to the six discriminatees being selected for layoff in any
event. Bruce Packing, supra, 357 NLRB #93 slip op at 3.
Rittereiser’s testimony demonstrates that Respondent has not done so. Rittereiser
claims that he considered employees’ past disciplinary records in making his comparative
evaluations for his scores, but admits that he did not look at the personnel file for all employees'
rates, but only of the employees where he recalled that they had disciplinary write-ups. Thus,
Respondent did not show that the six discriminatees had worse disciplinary, attitude or reliability
problems than the other employees, who were not selected for layoff. Bruce Packing, supra at
3-4.
Further, Rittereiser testified that he did not consult with the direct supervisors of any of
the employees in making his assessments and, as related above, did not review all the
personnel files of the employees. He also completed all of the evaluations in a relatively short
period of time. This haphazard manner, in which these scores were completed, underscores
their unreliability. Merrill Iron & Steel, supra, 335 NLRB at 174-175.
Rittereiser testified for example that he rated Mattei a 2 on “technical skills” but other
employees rated by him as 3s in that category had higher technical skills than Mattei. Similarly,
he testified that he rated Mattei as 2 in “productivity” as compared to higher scored for others
because “the same. Everybody was producing better than Bob.” This kind of vague, non-specific
and conclusionary testimony is illustrative of most of his attempts to justify his comparative
evaluation in the various categories on the forms. Thus, Respondent has simply failed to
provide adequate justifications for its low ratings for the discriminatees vis a vis the employees
not selected. Merrill Iron & Steel, supra. Thus, this indicates that Respondent utilized its dire
financial condition as a means to help rid itself of six leading union supporters. Merrill Iron &
Steel, supra.
This conclusion is further buttressed by a number of other factors.
Rittereiser’s testimony further indicates that he rated Wallace low in productivity and
technical skills because he was wondering around the pressroom not being productive and
disrupting other people. This testimony is an obvious reference to Wallace’s talking to other
employees about the Union, concerning which Wallace had been previously warned unlawful,
as I have concluded above. Thus, it appears, and I find, that Rittereiser, who conceded that he
reviewed files of employees, who had write-ups, had considered the emails, described above,
from Valentine and Fredericks describing the confrontation between Wallace and supervisors of
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Respondent’s about Wallace talking to other employees at work about the Union, disrupting
their work and that Wallace was not to be on the floor before his shift was to start. Thus, since
based on this finding, Wallace was penalized in the rankings, at least in part, for the exercise of
protected conduct, i.e. talking to employees about the Union. This finding alone is sufficient to
undermine Respondent’s defense vis a vis its Wright Line burdens as to Wallace. That
conclusion is further supported by the fact that Whitmoyer, who did not testify, but who also
rated Wallace poorly, would likely have considered this protected conduct of Wallace. It was
Whitmoyer himself, who unlawfully warned Wallace not to appear on the floor before his shift,
told him not to disrupt employees and unlawfully threatened to write Wallace up if he continued
to violate Whitmoyer’s instructions in that regard. In such circumstances, I infer that Whitmoyer
scores on Wallace’s evaluation were reduced, in part, due to Wallace’s exercise of protected
conduct, which further supports my conclusion that it has failed to establish that it would have
laid off Wallace absent his protected activities.
I conclude similarly with respect to Cole. Thus, Rittereiser testified that he was aware
and considered the fact that Cole had an “insubordination issue” with Valentine in his
assessment of Cole’s scores. He further testified that he reviewed write-ups in personnel files of
such incidents. Thus, this leads me to conclude, which I do, that he read and considered
Valentine’s performance note relating to the incident of March 1 in rating Cole’s performance.
As I have noted above, that incident reflected a warning given to Cole by Valentine for alleged
“insubordination” for using his cell phone while at work.
As related above, I found that this warning by Valentine was discriminatorily motivated. I
further found that during the course of the meeting, wherein Cole was given this warning, Cole
engaged in protected conduct by complaining about working conditions and how employees
were treated by Respondent’s supervisors (the “three amigos”). At that point, in response to that
protected conduct, Respondent, by Valentine, further committed conduct that would be violative
of the Act by telling Cole “to walk out the door” if he didn’t like working for Respondent, which
amounts to an implied threat of discharge.
In view of these findings, it is apparent that Respondent’s decision to include Cole in the
layoff was tainted by its consideration of the unlawfully motivated warning, which included Cole
exercising additional protected conduct, which resulted in an unlawful threat, in Respondent’s
process of ranking its employees for layoff selection. Thus, this evidence is sufficient in itself to
undermine Respondent’s defense that it would have laid off Cole absent his protected conduct.
Finally, I also rely upon the fact that Respondent failed to even consider evaluating its
Voorhees employees for the purposes of effectuating the April and June layoffs. Hager
explained that the decision to confine the layoffs to Secaucus employees was primarily because
the main reason for the layoffs was the loss of two major clients, whose work was performed at
Secaucus. While this explanation appears on the surface to be reasonable, it is undercut by the
additional evidence that during the period of time of the layoffs (March through June)
Respondent was in the process of “rebalancing” the work between the two facilities. This
process involved the transfer of 15 accounts from Secaucus to Voorhees and one account from
Voorhees to Secaucus. This leads to the obvious question as to why would Respondent be
transferring work from 15 accounts performed at that Secaucus facility (where there is a union
campaign in progress) to the Voorhees facility (where there was no campaign at the time) and
while laying off employees only at Secaucus and not even considering Voorhees employees in
its allegedly neutral and fair evaluation procedures for determining who is to be laid off. Hager
did attempt to explain Respondent’s reasoning in this regard when he was asked why
Respondent didn’t decide to include Voorhees workers in the evaluation process. He asserted
that Respondent was attempting to fill in more hours on unused presses in Voorhees. When
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asked why not just layoff Voorhees employees in the event, he replied that Voorhees did not
have full shifts, so he needed to balance work out because it is inefficient to shut down a press
because it would have some work. Thus, Hager explained that he felt that he wanted to make
sure crews were filled more efficiently. I find this convoluted explanation perplexing and
unpersuasive. I see no direct connection between full shifts and layoffs since hours and shifts
could be adjusted accordingly. Further, evidence establishes that Secaucus contained newer,
more expensive presses and presumably more efficient presses, so it would seem to make
more economic sense to have more work performed on the Secaucus presses rather than at
Voorhees. Of course, there are undoubtedly numerous issues that go into deciding on where to
perform the particular jobs involved, including for instance, the geographical location of the
customer. Indeed, Hager testified that one of the reasons for the new presses being purchased
was because they were better suited for larger jobs for clients, located in areas closer to the
New York Metropolitan area, where Secaucus has greater proximity than Voorhees.
Respondent adduced no testimony from Hager or anyone else as to why any of these
specific 15 accounts were transferred at the time of the layoffs of Secaucus employees. I find
that Respondent failed to adequately explain its decision to exclude the Voorhees employees.
Nonetheless, the bottom line is that during the period of time when both layoffs were
being effectuated, Respondent was transferring work for 15 accounts previously performed at
Secaucus (the plant, where union organizing was being conducted) to a plant in Voorhees,
where no union organization was in progress during the process of evaluation for layoff
selection. This is further evidence undercutting its burden of proving that it would have selected
the six discriminatees for layoff absent their union activities.
Therefore, based on the foregoing reasons, I conclude that Respondent utilized its
severe financial problems in the spring of 2010 as a means to rid itself of six known adherents.
Merrill Iron & Steel, supra at 175. I further find that Respondent has failed to establish that the
layoffs of the six discriminatees would have occurred in the absence of their union activity.
Therefore, the layoffs are violative of Section 8(a)(1) and (3) of the Act. Merrill Iron & Steel,
supra (violation found where respondent selected four union adherents for layoff despite finding
that respondent’s decision to effectuate layoffs was motivated by economic considerations);
Bruce Packing, supra, 357 NLRB #93 slip op p.3-4 (employer laid off 42 employees, decision to
layoff employees was not alleged to be unlawful and found to have been economically
motivated; however, the selection of 4 known adherents for inclusion on list found to have been
unlawful since anti-union animus was a motivating factor in the selection of the four employees
for layoff and employer failed to prove that these employees would have been laid off even in
the absence of their union activity); Hinkle Metal Supply Co., 305 NLRB 522, 523 (1991) (Board
finds that although respondent had valid economic reasons for effectuating a layoff, its
motivating factor in selecting for layoff six employees from among those laid off was their union
activities); JAMCO, 294 NLRB 896 (1989), enfd. 927 F.2d 614 (11th Cir. 1991) (employer‘s
decision to implement a layoff was not unlawful but its selection of certain employees was
discriminatorily motivated); Sumco Mfg. Co., 251 NLRB 427 (1980), enfd. 678 F.2d 46 (6th Cir.
1982) (while layoff of employees was prompted by large inventory and slowdown of orders, the
selection of six employees was discriminatorily motivated in violation of Section 8(a)(1) and (3)
of the Act).
Accordingly, based on the foregoing analysis and authorities, I conclude that
Respondent has violated Section 8(a)(1) and (3) of the Act by its selection of employees Mattei,
Wallace, Cole, Fego, Amato and Ball for layoffs as alleged in the complaint.
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CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by threatening employees
with plant closure if they engaged in union activities or supported the Union.
4. The Respondent violated Section 8(a)(1) and (3) of the Act by laying off Kevin
Cole, Robert Mattei, Joseph Wallace, Christopher Amato, Henry Ball and Richard Fego
because they engaged in union or other concerted, protected activities.
5. The unfair labor practices set forth above affect commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully laid off employees Kevin Cole, Robert Mattei, Joseph
Wallace, and Henry Ball, it must offer them reinstatement. It also must make whole Cole, Mattei,
Wallace and Ball, plus Christopher Amato and Richard Fego for any loss of earnings and other
benefits.57 Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010), enf. denied on other grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137
(D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended58
ORDER
The Respondent, AFL Web Printing, Secaucus, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees if they engaged in activities on behalf of the Union.

57 Fego and Amato have been reinstated by Respondent.
58 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.
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(b) Selecting employees for layoff or otherwise discriminating against employees for
supporting the Union or any other labor organization.
(c) In any other manner interfering with, 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 Act.
(a) Within 14 days from the date of the this Order, offer Kevin Cole, Robert Mattei,
Joseph Wallace and Henry Ball full reinstatement to their former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(b) Make Kevin Cole, Robert Mattei, Joseph Wallace, Christopher Amato, Henry Ball and
Richard Fego whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section of the decision.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010),
enf. denied on other grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C.
Cir. 2011).
(c) Within 14 days from the date of the this Order, remove from its files any reference to
the unlawful selection of Cole, Mattei, Wallace, Amato, Ball and Fego for layoff, and within 3
days thereafter notify the employees in writing that this has been done and that the layoffs will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its Secaucus, New Jersey facility
copies of the attached notice marked “Appendix.”59 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. If the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent at any

59 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)–06–12
5
10
15
20
25
30
35
40
45
50
68
time since April 2, 2010.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. March 27, 2012
____________________
Steven Fish
Administrative Law Judge
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 threaten you with plant closure if you engage in activities on behalf of the Union.
WE WILL NOT select you to be laid off or otherwise discriminate against you for supporting the Union or any
other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights listed above.
WE WILL, within 14 days from the date of this Order, offer Kevin Cole, Robert Mattei, Joseph Wallace and
Henry Ball full reinstatement to their former job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make Kevin Cole, Robert Mattei, Joseph Wallace, Christopher Amato, Henry Ball and Richard
Fego whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful
selection for layoff of Kevin Cole, Robert Mattei, Joseph Wallace, Christopher Amato, Henry Ball and Richard Fego,
and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the layoffs will
not be used against them in any way.
AFL Web Printing Co.
(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.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
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, 973-645-3784.