Catelli Brothers, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 1, 2007

04-CA-033420 (N.L.R.B. May. 1, 2007)

JD–31–07
Shrewsbury, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CATELLI BROTHERS, INC. Cases 4–CA–33420
4–CA–33528
And 4–CA–33606
4–CA–33675
UNITED FOOD AND COMMERCIAL 4–CA–33767
WORKERS INTERNATIONAL 4–CA–33913
UNION LOCAL 342 4–CA–34526
4–RC–21173
Randy M. Grier and Charles S. Strickler, Jr., Esqs.,
for the General Counsel.
William E. Mahoney, Jr., Esq., (Stradley, Ronon,
Stevens and Young, LLP),
Philadelphia, Pennsylvania, for the Respondent.
Ira Wincott and Steven Star, Esqs., Mineola, New York,
for the Charging Party.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania on August 18-22, December 4, 6-8, 2006 and February 14, 2007. The charges
were filed between October 12, 2004 and March 21, 2006 and an Amended Consolidated
Complaint was issued on July 28, 2006.
Respondent, Catelli Brothers, Inc., processes, sells and distributes veal and lamb. It
operates three facilities in New Jersey. At Shrewsbury, 40-50 employees slaughter and process
veal. At Collingswood, adjacent to Camden, 175-225 employees cut, process, sell and
distribute veal and lamb products. Respondent also has a facility at Pennsauken where it skins
and cures hides for leather products. This case involves two attempts by the Union, Local 342
of the United Food and Commercial Workers (UFCW), to organize the Shrewsbury and
Collingswood plants.
The first campaign began in August 2004 and culminated in a representation election on
January 20, 2005. The Union lost the first election by a narrow margin; indeed it appeared that
the Union had prevailed on the initial tally of ballots by a margin of 129-114. The Union
withdrew challenges to 28 ballots after the initial tally and when these were counted one week
later, 27 of the 28 employees whose ballots were challenged voted against the Union. The
revised tally was 141 votes against union representation; 130 in favor. In February and March
2005, Respondent terminated two of the most prominent union adherents at the Collingswood
plant, Richard Rodriguez and Nicholas Lash.1 Although the Union filed charges with regard to
both terminations, the General Counsel filed a complaint only with regard to Lash’s discharge.

1 Lash’s given name is Roy Nicholas Lash.
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In September 2005, the Union began a second organizing campaign. It hired Rodriguez
and Lash to assist the organization of the Collingswood plant. On August 25, 2006, the second
representation election was conducted. Respondent’s employees voted against union
representation by a margin of 149-42. The Union filed objections to the election which have
been consolidated with the unfair labor practice proceeding before me.
The organizing campaigns herein are very high stakes matters for both Respondent and
the Union. Not only does Catelli compete with veal and lamb distributors represented by the
Union, it has increasingly gotten into the business of delivering veal and lamb products, which
are immediately ready for sale to the consumer, to supermarkets. This has reduced the work
for supermarket butchers, many of whom are represented by the Union.
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, Catelli Brothers, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Union, Local 342 of the UFCW, is a labor
organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Preliminary Matters
Respondent’s Section 10(b) defenses
Section 10(b) of the Act provides that no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge. Respondent
alleges that many of the allegations accusing it of violating Section 8(a)(1) at the Collingswood
facility in the fall of 2004 are barred by this provision. It also alleges that Section 10(b)
invalidates paragraphs 13 and 14(e) of the Complaint regarding alleged unfair practices at the
Shrewsbury plant between January and mid-March 2005.
The United States Supreme Court in Fant Milling Co., 360 U.S. 301, 307-08 (1959) held
that a charge merely sets in motion the NLRB’s inquiry; it need not be a specific as a judicial
pleading. The General Counsel’s complaint can therefore deal with any unfair labor practice
related to those alleged in the charge and which grow out of the allegations in the charge while
the proceeding is pending before the Board.
In Redd-I, Inc., 290 NLRB 1115 (1988) and Nickles Bakery of Indiana, 296 NLRB 927
(1989) the Board held that a complaint allegation satisfies the Fant Milling criteria if it involves
the same legal theory as that contained in a pending timely charge, arises from the same factual
circumstances or sequence of events as a timely charge and if a respondent would raise similar
defenses to those in the charge.

2 Tr. 1940 line 18: “doubt” should read “a record.”
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10(b) issues relating to Collingswood
The charges filed with regard to the Collingswood plant that could timely support the first
Complaint filed the General Counsel in January 2006 are all fairly specific:
4–CA–33420, filed October 12, 2004, alleges that Respondent’s President Anthony
Catelli threatened and coerced employees during a speech he allegedly gave on September 24,
2004.
4–CA–33528, filed November 23, 2004, alleges that Respondent discriminatorily altered
employee Nicholas Lash’s working conditions.
4–CA–33675, filed February 2, 2005, alleges that Respondent discriminatorily
disciplined Nick Lash on January 4 and 7, 2005.
4–CA–33767, filed March 14, 2005, alleges that Respondent violated Sections 8(a)(1)
and (3) in disciplining Nick Lash again, and then suspending him and terminating his
employment.
The General Counsel contends that the allegations of Section 8(a)(1) conduct in the fall
of 2004 are sufficiently related to timely filed charges to satisfy the requirements of Section
10(b). Respondent contends that the following complaint allegations regarding the
Collingswood facility must be dismissed pursuant to Section 10(b):
Paragraph 5(a), alleging that on or about September 20, 2004, Anthony Catelli
interrogated Nick Lash and created the impression that his union activities were under
surveillance;
Paragraph 6, alleging that Respondent’s Human Resources Director, Sharon Rodilosso,
prohibited Lash from soliciting an employee-applicant in a non-work area during non-work
hours;
Paragraph 7(a), which stated that alleged agent Darryl Beckham accused Lash of
disloyalty for supporting the Union;
Paragraph 8, which stated that alleged agent Steven Williams accused Lash of
disloyalty;
Paragraph 9, which stated that alleged agent Theodore Marshall told Lash he could not
place union literature in Respondent’s employee lunchroom and directed him to remove a union
insignia; and
Paragraph 10, which alleged that Respondent’s Vice-President Thomas Thomson
directed Lash to remove the insignia, accused him of being a smart aleck and told Lash not to
post union material on a wall across the street from Respondent’s plant.
The Board has held that a common legal theory based on Respondent’s anti-union
animus satisfies the first prong of the Nickles Bakery/Redd-I test. I find that any allegation that
Respondent’s agents coerced employees in the exercise of their Section 7 rights is sufficiently
related to charge 4–CA–33420 to satisfy this factor. The Board also held that to satisfy 10(b),
the alleged conduct must have occurred during the same antiunion campaign as conduct
alleged in a timely filed charge. All of the complaint allegations at issue satisfy this second
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prong since they all arise out of Respondent’s effort to defeat the Union’s organizing campaign
in late 2004 and January 2005. The third prong, a common defense, is satisfied by
Respondent’s ability to show that it did not seek to unlawfully restrict the union activity of Lash,
or any other employee during the 2004-2005 campaign, Ross Stores, 329 NLRB 573, 574-75
(1999); Office Depot, 330 NLRB 640, 641 (2000).3
The challenged complaint allegations regarding the Shrewsbury facility rest on far
stronger ground insofar as Section 10(b) is concerned. The Union filed charge 4–CA–33606 on
December 12, 2004 alleging that Respondent committed an unfair labor practice by threatening
to close the Shrewsbury facility.
Charge 4–CA–33913, originally filed on January 28, 2005 in Region 22, very generally
alleged interference, restraint and coercion by Respondent in unilaterally changing working
conditions at Shrewsbury. These charges were not amended until April 21, 2006 to specifically
allege the allegations contained in Complaint paragraphs 13 and 14(e).4 However, a Board
agent informed Respondent’s counsel on February 15, 2005 that the charge encompassed the
alleged reduction in Lisardo Ruiz’s hours that is contained in paragraph 14(e), GC Exh. 83.
On March 3, 2005, a Board Agent also informed Respondent’s counsel that pursuant its
investigation of the charge, it had discovered evidence that Plant Manager Edward Cook had
told employees not to go to the Labor Board, and that the Labor Board could do nothing for
them, GC Exhs. 84, 85, 86. This evidence is reflected in the allegation made in Complaint
paragraph 13. Thus, Respondent had actual notice within six months of these alleged unfair
labor practices that they were encompassed by a timely filed charge. It therefore would have
been led to believe that it would be called upon to defend against these allegations and that it
might have to preserve evidence pertaining to them. At least one former Board member has
indicated that such actual notice should defeat a Section 10(b) defense, see Chairman
Stephens’ partial dissent in Redd-I, 290 NLRB 1115, 1119-21 (1988) and his concurring opinion
in Nippondenso Mfg. U.S.A., 299 NLRB 545 at 546 (1990).
The Agency Status of Respondent’s “Gray Hats”
The General Counsel devoted much time and effort attempting to establish that Darryl
Beckham, Theodore Marshall, Steven Williams and Sam Prather were statutory agents of
Respondent pursuant to Section 2(13) of the Act. He also litigated the agency status of
Vanessa Vogt, an employee in Respondent’s human resources department. All of these
employees are alleged to committed Section 8(a)(1) violations on behalf of Respondent.
Beckham, Williams, Marshall, Prather and several other employees are line leaders in
various departments of the plant. Prior to the fall of 2004, Respondent classified these
employees as supervisors. In about October 2004, after the first union organizing drive began,
these employees’ status and responsibilities changed in a number of ways. This apparently had
to do with some discussions with the U.S. Department of Labor relevant to Respondent’s
obligations under the Fair Labor Standards Act.

3 Respondent does not appear to have been prejudiced in defending against any of
allegations which were not specifically raised within six months of a charge, with the possible
exception of complaint paragraph 6, which alleges a violation by Sharon Rodilosso, who no
longer worked for Respondent when this case was heard.
4 The General Counsel’s original Complaint, issued on January 20, 2006, alleged an unfair
labor practice with regard to the reduction in Lisardo Ruiz’s hours.
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In any event, Respondent began paying these employees on an hourly basis, rather
than via salary. Their titles and their responsibilities also changed. At the same time,
Respondent instituted a system by which the color of an employee’s hard hat signified his or her
position and/or responsibilities in the plant. Beckham, Williams, Marshall, Prather and a few
other employees began wearing gray hard hats. The Union initially challenged the validity of the
gray hats’ ballots in the January 2005 election, but then withdrew the challenge. The tally of the
challenged ballots resulted in the Union receiving less than a majority of the votes cast, whereas
it had received a majority prior to the tally of the challenged ballots.
Board law regarding the principles of agency is set forth and summarized in its decision
in Pan-Oston Co., 336 NLRB 305 (2001). The Board applies common law principles in
determining whether an employee is acting with apparent authority on behalf of the employer
when that employee makes a particular statement or takes a particular action. Apparent
authority results from a manifestation by the principal to a third party that creates a reasonable
belief that the principal has authorized the alleged agent to perform the acts in question. Either
the principal must intend to cause a third person to believe the agent is authorized to act for
him, or the principal should realize that its conduct is likely to create such a belief.
The Board also stated in Pan-Oston, supra, that the test for determining whether an
employee is an agent of the employer is whether, under all the circumstances, employees would
reasonably believe that the employee in question was reflecting company policy and speaking
and/or acting for management. The Board considers the position and duties of the employee in
addition to the context in which the behavior occurred. It also stated that an employee may be
an agent of the employer for one purpose but not another.
This test should ordinarily be very simple to apply and I believe in this case there is no
question that Beckham, Williams, Marshall, Prather and Vogt were agents of Respondent when
making the statements or engaging in the conduct alleged in the Complaint—if they did so.
Respondent should have been able to stipulate to this proposition, which would have shortened
this hearing appreciably.
For example, Vanessa Vogt was a safety co-coordinator in Respondent’s human
resources department during the organizing campaigns. The Complaint alleges that Vogt
engaged in surveillance of employees’ union activities and that she took photographs of such
activities. Assuming that this is true, any reasonable person would believe that Vogt was
engaging in surveillance on behalf of management. There would be no reason for an employee
to believe otherwise.
The same holds true for the gray hats. Although the testimony regarding each one of
their responsibilities varies to some extent, I find that each gray hat has essentially the same
degree of responsibility and that whenever they speak to a lower ranked employee about
something related to Respondent’s business, that employee would reasonably assume that the
gray hat is speaking for management.
For a statement by a gray hat not to be imputed to Respondent, the statement would
have to be about something clearly outside the scope of his or her usual duties and position in
the plant (e.g., a statement or threat unrelated to Respondent’s business that is motivated by
personal animus).
The following facts led me to conclude that the gray hats are agents of Respondent
whenever they say or do anything related to Respondent’s business. Darryl Beckham testified
that he checks the employees on the veal break line for hygiene and safety equipment. Steve
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Williams, and I assume, Sam Prather, perform the same tasks on the lamb break and stew
lines, respectively. Obviously, if Beckham, Williams or Prather tells an employee that he or she
needs a belly guard, the employee would reasonably believe that Beckham or Williams speaks
for management. Beckham, Williams and Prather verbally counsel employees if they think the
employee is not doing his or her job properly. 5
An indication of Beckham’s status as an agent of Respondent is GC Exhibit 47(b), a
disciplinary warning issued to employee John Edwards in May 2006 for failure to comply with
Beckham’s instructions. Indications of Sam Prather’s status of an agent are R. Exhibits 3 and
8(e) and (f) which indicate that Prather issued two disciplinary warnings to Nick Lash in January
2005 and another to William Miranda.6
Theodore “Butch” Marshall’s job duties are somewhat different than those of Beckham,
Williams and Prather. Among other things, Marshall oversees Respondent’s sanitation crew. In
that capacity, even after his title was changed in October 2004, he issued a disciplinary warning
to an employee for failing to comply with management instructions (GC Exhs. 38 & 45(b)).
Marshall also acts as Respondent’s agent when escorting terminated employees out of
the plant. When Marshall told Nick Lash that he didn’t think he was allowed to wear a union
sticker on his hard hat, Lash would reasonably believe that Marshall was speaking for
management, not simply expressing his personal opinion. Indeed, when Lash insisted that he
could wear the sticker, Marshall told Lash that he was going to check if he was correct. Lash
would reasonably understand that Marshall was going to check with higher-level management.
Although Thomas Thomson told Marshall that Lash could wear the sticker, neither Marshall nor
Thomson ever went to Lash to correct Marshall’s original statement.
Alleged ULPs concerning employee Nicholas Lash
Nick Lash worked for the Catelli family for over thirty years, and for Respondent since
1981, until Catelli Brothers fired him in March 2005. From 1995 to 2002, he was a Quality
Assurance or Quality Control Manager at the Collingswood plant. Lash’s alienation from
Respondent’s management began in 2002 when the company hired another individual in
Quality Assurance. As a result, Respondent reassigned Lash, perhaps at his request, to the
portion control line working as a butcher. Some, but not all of the work on the portion control
line is highly skilled work, cutting meat to customers’ specifications.
Lash signed a union authorization card in September 2004. Catelli management
became aware that he had done so sometime before it transferred Lash from the portion control
line to the stew line on November 17 or 18, 2004. The General Counsel alleges in paragraph
14(a) and 16 that Respondent transferred Lash to retaliate against him for his union activity and
to discourage Lash and others from supporting the Union.

5 Indeed one could argue on the basis of Prather’s testimony at Tr. 1817 that he, and
possibly the other gray hats, are supervisors pursuant to Section 2(11) of the Act. Prather
testified that he told Lash, “You’re affecting my job and you know the man is going to get on me
so you got to trim better than what you’re trimming.” This certainly sounds like Prather had the
authority to “responsibly direct” employees on the stew line and that he exercised “independent
judgment” in doing so, Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (slip opinion 5-7).
6 As stated elsewhere in this decision, I conclude that the warning given to Miranda was
issued on January 4, 2005, rather than 2004, because Prather obviously misdated an identical
warning given to Nick Lash on January 4, 2005 for overtrimming stew meat.
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Complaint paragraph 5(a)
The General Counsel alleges that Respondent’s President, Anthony Catelli, Jr.,
interrogated Lash about his union activities and sympathies, and created the impression that his
union activities were under surveillance by telling him that two other employees had reported to
Catelli that they have seen Lash sign an authorization card. Lash testified that Anthony Catelli
approached him in September 2004 and told him that he had heard that Lash had signed a
union authorization card. Lash said that when he denied doing so, Catelli told him that two
people had told him that they had seen Lash sign the card. Catelli then said, according to Lash,
that Catelli’s father, for whom Lash worked until 1979, would be very upset with him.
While Respondent, in its brief, sets forth a number of reasons not to credit Lash’s
testimony, the fact remains that Anthony Catelli failed to contradict it. On this basis and by
drawing an adverse inference from Catelli’s silence, I credit Lash. Therefore, I find that the
General Counsel has established that Respondent, by Anthony Catelli, Jr., violated Section
8(a)(1) in interrogating Lash and giving him the impression that his union activities were being
watched. Catelli’s statements were coercive because they were made before Lash began
openly supporting the Union, and exhibited considerable animus towards his union activities.
It matters not, as Respondent argues in its brief, that Catelli did not ask Lash a question.
First of all, the “statement” was a question in that Catelli, at least implicitly, sought confirmation
or a denial from Lash. Whether or not Lash was in fact intimidated is also irrelevant, Catelli’s
statements would be viewed as coercive by any reasonable employee.7
Anthony Catelli’s August or September, 2004 speech (Complaint paragraph 5(b))
The General Counsel alleges that Respondent, by its President, Anthony Catelli, Jr.,
violated Section 8(a)(1) by telling employees during a speech to the entire Collingswood
workforce that if they wanted to work for a union company, they should resign. It is unclear
whether this speech was given in August or in September 2004, as alleged in the Complaint.
The parties have agreed that a compact disc and a transcript of Catelli’s speech, GC Exhs. 8 &
67 are accurate.
Mr. Catelli stated, in relevant part, the following, which was then translated into Spanish:
Three years ago, this company had a union election. Eighteen people were in
favor of a Union. A hundred and twenty eight people did not want a Union. The
same people interested in a union then are out here again talking union. Again,
some of the same people that have been talking up the union are still here.
Catelli Brothers never held it against them that they were in favor of a Union. It
was their right and we respected their opinion. My question is: Why are they still
here? If this company is so bad, and pays so poor, and the benefits are so bad,
why did they not go somewhere better. Anybody who wants to answer that feel

7 This case is distinguishable from Park “N Fly, Inc., 349 NLRB No. 16 (January 31, 2007)
which is cited by Respondent. In Park “N Fly, the employer’s supervisor identified the source of
her information regarding the employee’s union activities and the employee had reason to
believe that the person identified was indeed the source of the supervisor’s information. Lash,
on the other hand, had no reason to know whether Catelli had learned of his union activities
from rank and file employees or from individuals who might be supervisors or agents of
Respondent.
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free. Tell me why you didn’t go to a union company. Why didn’t you go to
another meat company like us and get more…
…Because I have done everything I promised…Unfortunately, there will always
be a percentage of people, maybe it’s ten percent of this room, maybe it’s twenty
percent that I will never be able to make happy…
In most cases, these are the same people that don’t show up every
Monday…and throwing their coats all over the locker room…leaving the toilet
paper all over the toilet and I’m supposed to worry about these type of people?
All I care is that they come in and do their job...
The same pro-union employees don’t even use the programs that are here to get
problems solved. They don’t go and tell their communications representative
they have a problem. They don’t call the 800 number. They don’t file a
grievance. They don’t knock on my door. They just complain, complain and
complain. They are never happy.
The General Counsel argues that this speech, in asking why pro-union employees were
still working at Respondent and why they had not gone to work elsewhere, is essentially an
invitation to pro-union employees to resign. Therefore, the General Counsel submits, Catelli’s
remarks violate Section 8(a)(1) pursuant to a long line of Board cases, e.g., McDaniel Ford, 322
NLRB 956 (1997). On the other hand, the remarks can be viewed merely as argument that
conditions at the plant weren’t as bad as the pro-union employees claimed.
Nevertheless, I conclude that Catelli’s remarks violated Section 8(a)(1). Catelli followed
his rhetorical question regarding the continued employment of union supporters by severely
disparaging and ridiculing them. In light of this disparagement and Catelli’s obvious animus
towards those supporting the Union, any employee listening to these remarks would have to
seriously consider whether Respondent’s president deemed support for the Union to be
inconsistent with continued employment at his company, see Padre Dodge, 205 NLRB 252
(1973); F.W. I. L. Lundy Bros. Restaurant, 248 NLRB 415, 422 (1980). Although Respondent’s
president assured employees that he did not hold their support for a union against any of his
employees, the contempt displayed towards those employees would reasonably lead those
listening to his speech to precisely the opposite conclusion.
Unlike disparagement of nonemployee union officials, vituperative disparagement and
ridicule of union supporters who are employees, particularly when as generalized as Catelli’s
remarks, conveys an implicit threat of unspecified reprisal.8 I conclude that a reasonable
employee hearing the speech would likely be restrained from engaging in activities protected by
Section 7 of the Act.
Complaint paragraph 6, alleged violation by Sharon Rodilosso
Nicholas Lash testified that, while on a break, he gave a union authorization card to a job
applicant by the guard shack in front of the Catelli plant sometime during the fall of 2004. This
is not a work area. According to Lash, Sharon Rodilosso, then Respondent’s human resources

8 The tenor of Catelli’s comments distinguishes this case from the rather mild negative
comments made by the employer to employee union supporters in Trailmobile-Trailer, LLC, 343
NLRB 95 (2004).
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director, told him that he was violating the company’s no solicitation policy. Rodilosso no longer
worked for Respondent by the time of this hearing and Respondent did not call her as a witness;
thus Lash’s testimony is uncontradicted. I therefore credit Lash’s testimony and find that
Respondent by Sharon Rodilosso’s violated Section 8(a)(1) by interfering with Lash’s protected
right to distribute union materials in a non-work area during nonworking time, Waste
Management of Palm Beach, 329 NLRB 198 (1999).
Respondent contends that Rodilosso’s comments did not violate the Act because she
did not interfere with Lash in providing the applicant with an authorization card and that her
comments did not actually intimidate or deter Lash from engaging in union activities. Lash’s
subjective reaction to Rodilosso’s statement is irrelevant; her comments from an objective
standpoint would tend to restrain and coerce a reasonable employee in the exercise of his or
her Section 7 rights, Florida Steel Corp., 224 NLRB 45 (1976).
Complaint paragraphs 7(a) & 8
The General Counsel alleges that Respondent, by alleged agents Darryl Beckham and
Steven Williams violated Section 8(a)(1) in accusing Lash of disloyalty because he was
supporting the Union. Lash testified that in late September or early October, shortly after he
had signed a union authorization card, Darryl Beckham, who oversees the line on which veal
carcasses are broken down, approached him. According to Lash, Beckham said:
I can’t believe you signed a union card. How could you do that to (the) company? I
can’t believe you did that to the Catelli family. You worked for the Catelli family a lot of
years .
Tr. 306-07.
Lash also testified that Steve Williams, who oversees the line breaking down lamb
carcasses, approached him in the same time frame. According to Lash, Williams said:
I can’t believe you signed a union card, you worked for the Catelli family a lot of years,
you worked for the Catelli family over 30 years.
Tr. 308-09.
Beckham testified that he never asked Lash why he signed a union card, or accused him
of disloyalty. Beckham also testified that except for Lash asking him to sign an authorization
card, he never had any discussion with Lash about union cards, Tr. 1575-76.
Steve Williams also testified that he never said anything to Lash or questioned Lash
about why he signed an authorization card. Further Williams stated that he never had any
conversation with Lash about the Union, Tr. 1692-93.
I find Beckham’s and Williams’ denials as credible as Lash’s testimony and therefore
dismiss these allegations in the Complaint. However, I am unable to affirmatively credit Lash or
Beckham and/or Williams. Lash’s testimony on certain matters in this case, particularly his
motive in removing the Rosen meat label from a box the day he was fired, is not credible. At
other critical points, particularly when his testimony is corroborated by documents or
circumstantial evidence, I do find him credible. While I have not specifically discredited either
Beckham’s and Williams’ testimony on other matters, both had a motive to deny what might
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have occurred in a one on one conversation with Lash, if for no other reason than to stay in the
good graces of their long-time employer.
This raises the issue of whether an NLRB judge is required to credit one witness over
another when, as in this case, the judge has no basis for doing so. In American Inc., 342 NLRB
768 (2004), Chairman Battista and then Board member Meisberg stated, “nor do we find it
appropriate to force the judge to credit Warholm or Martin over the other when she has candidly
stated that she has no basis for doing so.”
Member Liebman, dissenting, stated:
While a judge may dismiss an allegation because the relevant, conflicting evidence is in
equipoise, the judge must provide some explanation, especially when making key
credibility determinations. Here, the judge simply stated: “I find no basis for crediting the
testimony of either Mr. Martin or Mr. Warholm over the other.”
Hopefully, my explanation as to why I decline to credit either Lash or Beckham and
Williams satisfies my obligations in this regard.9
Complaint paragraphs 9 & 10, alleged Section 8(a)(1) violations by Production Vice President
Thomas Thomson and “Gray Hat” Theodore “Butch” Marshall
Nick Lash testified that in the fall of 2004, “Gray Hat” Theodore “Butch” Marshall told him
that he could not distribute union material in non-work areas, including putting union leaflets on
the tables in the plant cafeteria. He testified that a few weeks later, Production Vice-President
Thomas Thompson told him something similar and also told him that he was not allowed to post
union material on a wall across the street from the plant.
Lash testified, and Marshall admits, that on one occasion Marshall told Lash that he
could not wear the largest of several union stickers on his hard hat. Afterwards, according to
Lash, he and Marshall went into Thomas Thomson’s office. According to Lash, Marshall
repeated his assertion that Lash was not allowed to wear one particular sticker. Lash testified
that he told Thomson and Marshall that he had a right to wear the sticker under the Act.
Thomson’s response, according to Lash, was that Lash was just being a “wise guy.”
Nick Lash testified that on another occasion Thomson again told him he had to remove
union stickers from his hard hat. Lash states that Thomson again called him a “wise guy,” but
that he continued to wear the stickers.10
To the extent that Marshall and Thomson contradict Lash, I find their testimony as
credible as his testimony. I have found both Lash and Thomson to be incredible with regard to
portions of their testimony, thus, in these instances, I simply do not know who to believe. With
regard to Marshall, even though I have not specifically discredited any of his testimony, I am
wary of his testimony due to strong motive to testify in a manner supportive of Respondent’s

9 Also see Iron Mountain Forge Corp., 278 NLRB 255, 263 (1986).
10 Richard Rodriguez also testified that Thomson told him that he could not wear a union
sticker on his hard hat. Also, like Lash, Rodriguez testified that he continued to wear the
sticker(s).
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case.11 In any event, I dismiss all portions of the Complaint paragraphs 9 & 10, except for the
one instance in which Lash’s testimony is corroborated by Marshall.
“Butch” Marshall admits he told Lash that he could not wear a union sticker on his hard
hat. When Lash asserted that he could do so pursuant to the NLRA, Marshall, according to his
testimony, told Lash he was going to have to check into that. Marshall says he went to Tom
Thomson, who told him Lash could wear the sticker. Marshall concedes that he did not go back
to Lash and correct himself.
On the other hand, Marshall denies that he ever said anything to Lash about the
dissemination of union literature. Likewise, Thomson denies every assertion about him made
by Lash (Tr. 1863-68). However, he confirms that Marshall came to him about Lash’s sticker
and that he told Marshall that Lash was allowed to wear it. However, Thomson did not go to
Lash to tell him that Marshall was mistaken. Therefore, I find that Respondent, by Marshall,
violated Section 8(a)(1) as alleged in Complaint paragraph 9(b) in telling Lash he could not
display the union sticker. I also conclude that because Respondent did not inform Lash that
Marshall was mistaken, it did not effectively repudiate his conduct, Passavant Area Memorial
Hospital, 237 NLRB 138 (1978).
The section 8(a)(3) allegation regarding Lash’s transfer from the portion control line to the stew
line (Complaint paragraph 14(a)).
After Nick Lash worked for two years on the portion control line, Respondent transferred
him to the stew line on November 17 or 18, 2004, shortly after it became aware that he had
signed a union authorization card. Work on the stew line is entry level work, while some of the
work on the portion control line is skilled butchering work. There are 8-10 employees on the
portion control line and only half of them perform skilled work.
On the stew line, Lash’s work station was right in front of the office of Thomas Thomson,
Respondent’s Vice President of Production. There is a clear window behind Lash’s work
station. Thomson and Anthony Catelli admit that Lash was moved to a location where Thomson
could keep an eye on Lash (Tr. 1871, GC Exh. 97).
Lash’s wage rate was not reduced even though employees on the stew line are
generally paid less than those on the portion control line. Lash’s testimony that he lost a half-
hour of pay each day due to the transfer is uncontradicted.
The General Counsel alleges that Lash’s transfer was discriminatory; Respondent
claims it was made for non-discriminatory reasons. Respondent had not given Lash any
disciplinary warnings while he was on the portion control line. However, his April 2004
performance evaluation, made months before the start of the organizing campaign, GC Exh. 44,
was average at best. Portion Line Supervisor Nate Marino characterized Lash’s performance
as “fair” and wrote that he needed improvement in his trimming skills. However, Respondent
increased Lash’s wage rate by $1.00 per hour in April 2004.
Lash testified that, just prior to the transfer, he was called into a meeting with then
Human Resources Manager Sharon Rodilloso and Thomas Thomson. According to Lash,

11 So as to not repeat myself, I refer the reader to my discussion re: Complaint paragraphs
7(a) and 8. For this judge, it is rare that I feel comfortable making credibility resolutions solely
on the comparative demeanor of witnesses in a one-on-one encounter.
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Thomson told him he was being transferred because of some complaints from Buca di Beppo,
an Italian Restaurant chain that is one of Respondent’s regular customers. Lash testified that
Thomson said that Respondent was not blaming him for errors on the Buca account, but that
Anthony Catelli believed Lash was going to sabotage the account.
I credit Lash’s account of this conversation, which was not contradicted by Thomson.
Thomson conceded that he could not attribute errors on the Buca account to Lash (Tr. 1870).
He testified that the decision to remove Lash from the portion line was:
…kind of like the straw on the camel’s back, there was quite a few things leading up to
that decision. The bottom line decision when he was ― seen with metal studs on a
sweater he was wearing. It’s a flagrant disregard for food safety…
Tr. 1868.
However, Respondent did not issue any disciplinary notices or warnings during Lash’s
tenure on the portion line. Lash admits that he did come to work one day while on the portion
line wearing a sweater or sweatshirt with metal studs. However, he testified this occurred
before he signed a union authorization card, which is dated September 19, 2004. Other than
Thomson’s unspecific testimony that this event was the last straw, Respondent has introduced
no evidence as to when this incident occurred. Lash admits that he knew, from his tenure in
quality control, that he was not supposed to wear such apparel. Such objects could fall into the
meat.
In order to prove a violation of Section 8(a)(3) and (1), the General Counsel must
generally make an initial showing that (1) the employee was engaged in protected activity; (2)
the employer was aware of the activity; and (3) that animus towards the protected activity was a
substantial or motivating reason for the employer’s action. Once the General Counsel makes
this initial showing, the burden of persuasion shifts to the Respondent to prove its affirmative
defense that it would have taken the same action even if the employee had not engaged in
protected activity, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981); La
Gloria Oil and Gas Co., 337 NLRB 1120 (2002).
I conclude that the General Counsel has met his burden under Wright Line and that
Respondent has not established its affirmative defense. The first three elements of the General
Counsel’s burden of proof are established by Lash’s uncontradicted testimony that prior to his
transfer to the stew line, Anthony Catelli interrogated him about Lash signing a union
authorization card and expressed Catelli’s disappointment with Lash for doing so. The animus
of Respondent’s management to active union supporters is also established by Vice-President
Thomas Thomson’s testimony contrasting them with a “loyal Catelli Brothers employee,” (Tr.
1866) and Anthony Catelli’s speech to the Collingswood employees in August or September
2004.
For several reasons, I draw the inference that Respondent’s motive for the transfer was
discriminatory and that it would not have transferred Lash but for its animus towards his union
activity. He appears never to have excelled at his job on the portion line, yet Respondent did
not transfer Lash until it became aware of his union activity. I specifically discredit Thomson’s
testimony that Lash’s wearing of clothing with metal studs was the “last straw” that led
Respondent to transfer Lash to the stew line for non-discriminatory reasons. Since Lash had
not received any disciplinary warnings during his tenure on the portion control line, there is no
basis for concluding that the transfer was caused in whole or in part by repeated instances of
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misconduct. Moreover, Thomson’s testimony regarding the significance of the metal studs
incident is undercut by the fact that Lash was not disciplined for this transgression.
Additionally, there is no evidence to corroborate Thomson’s testimony that the metal
studs incident was the precipitating event for the transfer. Anthony Catelli testified that he
decided to transfer Lash from the portion line to the stew line, but he didn’t cite the metal studs
as a factor in the transfer. In fact, Mr. Catelli did not proffer any reason for the transfer when
testifying in this matter on August 14, 2006 and February 14, 2007. In an affidavit executed on
January 13, 2005, he cited poor workmanship and numerous arguments with co-workers. Mr.
Catelli did not mention the metal studs incident in his affidavit.
Unlawful motivation is most often established by indirect or circumstantial evidence,
such as suspicious timing and pretextual or shifting reasons given for the employer’s actions.
Discriminatory motivation may reasonably be inferred from a variety of factors, such as
the company’s expressed hostility towards unionization combined with knowledge of the
employees’ union activities; inconsistencies between the proffered reason for discharge
and other actions of the employer; disparate treatment of certain employees with similar
work records or offenses; a company’s deviation from past practices in implementing the
discharge; and proximity in time between the employees’ union activities and their
discharge.
W.F. Bolin Co. v. NLRB, 70 F. 3d 863, 871 (6th Cir. 1995).
I place great weight on Respondent’s shifting explanations for the transfer in concluding
that Lash was moved to the stew line in order to interfere with, restrain and coerce his union
activities, Black Entertainment Television, 324 NLRB 1161 (1997). In a much earlier decision
the Board explained:
Where an employer is unable to settle on a reason for discharge, but vacillates
between several asserted reasons, an inference is warranted that the real reason
for the discharge is not among those advanced. In the context of Respondent’s
hostility to the Union and its other unfair labor practices it often becomes
apparent that the real reason was the employee’s union activity.
Steve Aloi Ford, 179 NLRB 229, 230 (1969).
Similarly, there is no indication that the quality of Lash’s work on the portion control line
deteriorated between April and November 2004. Respondent, for example, did not proffer Gray
Hat Nate Marino, who supervised Lash on the portion line, as a witness.
Moreover, Respondent has not set forth any reason why Lash was not moved to an
unskilled position on the portion line, as opposed to a location directly in front of Vice-President
Thomson. Indeed, I infer from the discriminatory disciplinary warnings given to Lash after the
transfer that he was transferred precisely to facilitate building a case for his termination.
There is no basis for concluding that Respondent had a reasonable belief that Lash
would sabotage the Buca account. Until January 2005, when the Union lost the election, it
would not have been in either Lash’s interest or in the Union’s interest for Catelli to lose Buca’s
business. Indeed, it would have been antithetical to the Union’s interests if Buca were to have
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taken its business to a different meat processor/packer--particularly if such company was non-
union.12
Finally, the timing of Lash’s transfer, shortly after Respondent became aware of his
union activities indicates that the transfer was not motivated by a legitimate fear of sabotage.
Respondent was made aware of attempts by a different disgruntled employee to extort money
from it by August 2002 and despite this, it kept Lash on the portion control line for several years
afterwards. Catelli Brothers did not transfer Lash until it was aware of serious effort to organize
its Collingswood and Shrewsbury facilities and Lash’s role in that effort.
Alleged Discriminatory disciplinary warnings
After Respondent transferred Nick Lash to the stew line it issued him a number of
disciplinary warnings. Respondent issued Lash a warning for cursing at Gray Hat Sam Prather
on December 6, 2004. The General Counsel has not alleged that Respondent violated the Act
in doing so.
Between January 4, 2005 and election day, January 20, 2005, Respondent issued four
disciplinary warnings to Nicholas Lash. The first, on January 4, 2005, was given to Lash for
overtrimming the meat on the stew line; this is alleged as a Section 8(a)(3) violation in
paragraph 14(b) of the Complaint. On January 7, Respondent warned Lash for putting his belly
guard in a meat lug. Lash concedes that this warning was justified and it is not alleged as a
statutory violation.
On January 14, Respondent issued Lash a verbal warning for failing to follow food safety
policies in an unspecified manner, R. Exh. 8(d). Lash testified that he put his foot on the rack
under the cut table on which employees place the meat lugs (Tr. 615).13 He concedes that this
warning was justified and it is not alleged to have violated the Act. On January 20, the day of
the election, Respondent issued Lash a disciplinary warning for loudly exhorting other
employees to vote. The General Counsel did not allege this warning to be a violation either.
Additionally, on February 25, 2005, Respondent issued Lash a warning for low
production. This is alleged to have violated Section 8(a)(3) in paragraph 14(d) of the Complaint.
I find that both the January 4 and February 25, 2005 warnings were discriminatory. The
General Counsel has made out his prima facie case under Wright Line. He has established
Lash’s union activity, Respondent’s knowledge of that activity, its animus towards it and
discriminatory motivation. I infer discriminatory motive from the obvious pretextual nature of the
warnings.

12 The fact that Lash put his belly guard in a meat lug on January 7, 2005, and his foot near
a meat lug on January 14 does not support a conclusion that Lash was intentionally trying to
undermine Respondent’s business prior to his transfer to the stew line. By the time he engaged
in these latter instances of misconduct, Respondent had transferred him discriminatorily and
issued him two disciplinary warnings, neither of which may have been justified. These facts are
likely to have made Lash much more antagonistic to Respondent than he was prior to the
transfer.
13 Sam Prather also testified about this incident and essentially corroborates Lash’s
testimony that his foot was on the rack, not on the lug (Tr. 1847).
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As noted by the Court of Appeals for the Ninth Circuit in Shattuck Denn Mining Corp. v.
NLRB, 366 F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the question, it is seldom that direct evidence will
be available that is not also self-serving. In such cases, the self-serving declaration is
not conclusive; the trier of fact may infer motive from the total circumstances proved.
Otherwise no person accused of unlawful motive who took the stand and testified to
lawful motive could be brought to book. Nor is the trier of fact-here a trial examiner-
required to be any more naïf than is a judge. If he finds that the stated motive for a
discharge is false, he certainly can infer that there is another motive. More than that, he
can infer that the motive is one that the employer desires to conceal-an unlawful motive-
at least where, as in this case, the surrounding facts tend to reinforce that inference.
Accord, Fast Food Merchandisers, 291 NLRB 897,898 (1988), Fluor Daniel, Inc., 304 NLRB
970, 971 (1991).
The pretextual nature of the disciplinary warnings
Respondent contends that employees were being constantly monitored both for the
quality of their work while trimming meat and production output. This is belied by the lack of any
evidence that Lash’s work was scrutinized in such a manner while he worked on the portion line.
Moreover, the testimony of the three gray hats regarding Respondent’s testing
procedures is sufficiently inconsistent that it supports my inference that Respondent issued
these warnings to Lash for discriminatory reasons and as a prelude to discharging him.
Darryl Beckham, the gray hat on the veal break line, testified that he does not do any
testing to determine whether employees are doing their tasks quickly enough.14 Steve Williams,
the gray hat on the lamb break line, testified that he does time tests when requested by Tom
Thomson. Williams testified that employees know when they are being tested because they can
see him standing there with a watch. Sam Prather, the gray hat for the stew line, and Tom
Thomson testified that Respondent takes great pains to assure that employees do not know
when they are being tested. Such testimony, of course, was necessary to explain why Nick
Lash was not aware that Respondent was monitoring his rate of production.
I also conclude that the other warnings given to employees on the stew line were issued
to obscure the discriminatory treatment of Lash. There is no evidence that any stew line
employee received warnings for over trimming, or low production based on a time test, between
January 1, 2004 and November 2004, when Lash was transferred to that line.15 There is also
no evidence of similar regular time tests on other production lines. The lack of such evidence
and Darryl Beckham’s testimony, that he never preformed tests of employees’ productivity,

14 An employee on the veal break line, John Edwards, was issued a verbal warning on July
23, 2004 for substandard productivity, Exh. G.C.-47(a). Beckham filled out the first two lines of
the warning documentation, to wit, that Edwards needed to increase his productivity. Two
additional lines in different handwriting mentions the establishment of time tests.
15 On January 28, 2004, Respondent issued a disciplinary warning to George Major, an
employee in the stew department, for an inability to meet the standards required for meat
cutting. It is not clear whether or not this warning was predicated on a time test or was issued
for some other reason. Major’s warning is the only documented warning issued to a stew line
employee between January 1, 2004 and Lash’s transfer to the stew line.
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convinces me that there was no regular and/or frequent testing apart from that on the stew line,
which was intended to build a case against Nick Lash.
A further indication of discriminatory motive is the very sporadic and irregular pattern of
discipline at the Collingswood plant. Between January 1, 2004 and March 31, 2005, only six
employees, other than Nick Lash, were issued disciplinary warnings for low productivity
allegedly based on time tests. With one exception, all of these were issued on February 25,
2005, the same date as Lash’s warning, GC Exh. 47(a), GC Exh. 96 and R. Exh. 3. All of these
employees, with the possible exception of Darrell Thomas, and John Edwards, worked in the
stew department.16
Warnings issued to stew line employees for overtrimming also appear to be linked to
Lash’s presence on that line. Between January 1, 2004 and March 31, 2005, four warnings
besides the one issued to Lash were given to stew line employees. One was issued to William
Miranda on January 4, 2005, the same day as the warning issued to Lash.17 The others were
issued February 11, 24 and 25, 2005, GC Exh. 96 and R. Exh. 3.18
Respondent terminates Nicholas Lash’s employment (Complaint paragraph 14(d))
At the end of each day, stew line employees lift the grating on which they stand and
carry the sections of grating to the back of the plant to facilitate the cleaning of the floors. On
March 7, 2005, Nick Lash and another employee made two trips carrying pieces of grating
towards the rear of the plant. Lash noticed two employees unloading processed lamb which
came from boxes bearing the name of B. Rosen Company, a meat processor/packer located in
Bronx, New York. Rosen is one of Respondent’s main competitors and its employees are
represented by the Union.
On one of these trips, Lash walked over to where the Rosen lamb was being placed in
large plastic containers to defrost. He took one of the empty Rosen boxes to a nearby table and
cut the label off.19 He then put the label inside his pants, walked back to his work station and
placed the label in a carrying case containing his knives and other items that he took home
every day.20 After doing so, Lash clocked out and went to his car in the parking lot. Raymond

16 The warning issued to employee Quoc Vo on February 25, 2005,indicates that he worked
in packaging. However, other documents in G.C. exhibits 73 and 96 indicate that Vo regularly
worked in the stew department.
Thomas’ warning indicates that he worked in the boning department. A warning issued to
Lash on December 6, 2004, lists his department as the boning department, Exh. R-8(g). This
suggests that Thomas may also have been a stew department employee.
17 I infer that Sam Prather incorrectly dated this warning as January 4, 2004, the same
mistake he made on the warning issued to Lash the same day.
18 As the General Counsel point out in his brief at pages 94-95 & notes 113, 114 and 115,
there is little correlation between Respondent’s records of its time tests and the disciplinary
warnings it issued. There are also significant inconsistencies between these records and the
testimony regarding Respondent’s testing by Sam Prather and Tom Thomson.
19 This label is Exhibit G.C.–20.
20 Lash testified that he made no attempt to conceal that he had cut a label off the Rosen
box and that he was carrying it back to his work station in his hand. Raymond Orsini testified
that Lash looked around to make sure that nobody was watching him before he cut the label
and then put it down his pants. I credit Orsini. Orsini no longer worked for Respondent when
he testified; however, his wife is currently an employee of Catelli Brothers. I find that he had
Continued
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Orsini, one of the employees unloading the Rosen boxes, reported the fact that Lash had cut a
label off an empty box to his supervisor, who reported this to another management employee.
This official immediately reported the incident to Respondent’s Production Vice-President
Thomas Thomson.
Thomson told Sam Prather, a leadman or “gray hat,” to get Lash and the label. Prather
went to the parking lot and found Lash. He told Lash that Thomson wanted to see him and that
Thomson wanted the label back. Lash drove his car across the street to another parking lot,
went into his car and retrieved the label. He stopped for a few minutes to talk to Anwar
Colindres (also known as “Dubar”), a union organizer who was standing across the street from
the Catelli plant. By this time, a month and a half after the first representation election, union
organizers were coming to the Collingswood plant on an occasional basis—at best.21
Lash went back into the plant and went to Thomson’s office. Thomson demanded that
Lash return the label; Lash gave the label either to Thomson or to Prather. Thomson made no
inquiry as to the reason Lash had taken the label or what he intended to do with it.
The next day, March 8, when Lash reported to work, Supervisor Al McGann told Lash
that Thomson directed that Lash was not to clock in and that Respondent’s human resources
department would be contacting him. Later, Lash spoke to H.R. Director Sharon Rodilosso,
who informed him that he was being suspended until further notice. On March 10, 2005,
Rodilosso sent Lash a letter informing him that, “having considered this conduct further
[removing the Rosen label from the plant], your work history, the many warnings given to you,
and having determined your malicious intent is to harm the company, Catelli Brothers has no
choice but to terminate your employment.”
The General Counsel has not established an unlawful motive for Nick Lash’s discharge
The General Counsel has established that Nick Lash engaged in protected union
activities, that Respondent was aware of these activities and that it harbored a great deal of
animus towards Lash due to his protected union activities. What remains to be determined is
whether the General Counsel has met its burden of proving that Respondent’s motive for the
discharge was discriminatory and unlawful.
First of all, Lash was not engaging in protected activity when he cut off the Rosen label
and attempted to take it out of the plant. The fact that the activity was related in some ways to
his protected activities does not make the removal of the label protected. If Respondent fired
Lash for this conduct without regard to his protected union activity, the Complaint should be
dismissed. However, the General Counsel asks this judge to draw an inference that
_________________________
much less of a motive to fabricate his testimony than Lash; moreover, his account is much more
logical given the surrounding circumstances.
21 I find the testimony of union organizers Colindres and Loiacono that organizers were
coming to the Catelli plant regularly between January and September 2005 to be incredible.
Loiacono’s testimony when he testified in August 2006 and his testimony on February 14, 2007
appear to be inconsistent as to the organizers’ presence at the Collingswood plant between the
two organizing campaigns. I find it most likely that Lash had noticed that Catelli was processing
meat from Rosen before the end of the March 7, 2005 workday and had alerted one or more
organizers to this fact. I conclude that Colindres was at the plant on March 7 to receive the
label from Lash; his presence that afternoon was not simply a coincidence.
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Respondent would not have fired Lash for taking the label in the absence of its anti-union
animus.
The General Counsel relies on a number of factors: first, that Respondent did not bother
asking Lash why he was taking the label; secondly, although Respondent has a rule against
divulging confidential business information, its rules did not mention the information on box
labels—even when the box originated with a competitor; third, assuming it had a policy
regarding the confidentiality of this information, this policy was never communicated to its
employees.
The General Counsel argues that Respondent’s contentions are belied by the fact that
Respondent’s employees had been allowed to take boxes with labels home with them on
numerous occasions and these included not only Catelli boxes, but boxes from other meat
packing companies.22 Finally, I would note Respondent’s contention that the label contained
valuable and confidential business information is somewhat inconsistent with the fact that it
made no attempt at the instant proceeding to preserve the confidentiality of the information on
the label. For example, Respondent did not request that the label be placed under seal or ask
for any restriction on the dissemination of the information on the label. Presumably, it would still
be Respondent’s interest to keep this information secret from Rosen.
Respondent contends that there was no reason for it to conduct an investigation or ask
Lash what he intended to do with the label. It submits that he obviously intended to harm the
company’s business. In this regard, I agree (and stated as much during the hearing) that there
appears to be no innocent or benign explanation for Lash’s conduct. His contentions, that he
took the label simply because he was curious, or was concerned about the wholesomeness of
the meat are not credible. A reasonable employee in Lash’s situation, who was concerned
about the quality of the meat, for example, would have reported his concerns to Respondent.
Lash obviously intended to give the label to the Union. I infer this from the lack of any
other reasonable explanation and Organizer Colindres’ presence at Respondent’s facility on the
afternoon of March 7. The question remains what did Respondent reasonably expect the Union
to do with the label.
Catelli contends that it was concerned that the Union would give the label to Rosen. It
contends further that it was concerned that with the label, Rosen would be able to determine
who sold its lamb to Catelli and would be able to cut off a source of supply for Catelli in the
future.
In support of this argument, Respondent presented the testimony of Boris Ayzenberg, its
director of information systems. Ayzenberg testified that given one of Catelli’s labels, he could,
by entering data from the bar code on the label into Respondent’s computer records, determine
to whom Catelli sold its product. He assumes that Rosen has the same capability for labels on
boxes of its products. Bruce Rosen’s testimony at Tr. 714-15, relied on at page 41 in the
General Counsel’s brief, appears to stand for the proposition that Ayzenberg’s assumption is
incorrect. It strikes me that for liability reasons, if for no other, the assumption must be correct.
Moreover, even if it were not, I conclude that Catelli had a reasonable belief that Rosen would

22 Raymond Orsini, who was called as a witness by both parties and whom I find credible,
testified that employees took boxes home 1-2 times per month and that Respondent did not
require the labels to be removed from the boxes until after Nick Lash was terminated.
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be able to determine the identity of the middleman to whom it sold its lamb if it had the
information on the label which Lash removed from its box.23
Respondent’s Production Vice-President Thomson testified that it is company policy to
try to removal all labels, but that Catelli Brothers does not worry about labels leaving the plant if
they are from its own boxes or a company “we do business with on a daily basis.” He
mentioned Delft Blue and Iowa Lamb as such companies. Richard Rodriguez had taken boxes
home with him that had these companies’ labels attached to them.24 I decline to credit this
portion of Thomson’s testimony in as much as there is no evidence that such a policy was ever
communicated to Respondent’s employees. More specifically, there is no evidence that
Respondent communicated to employees that it was not concerned with the information on Delft
Blue or Iowa Lamb labels, but was concerned with the confidentiality of the information on
Rosen labels.25
On the other hand, as Respondent points out in its brief, while an employee may have a
legitimate use for a box to use for storage, an employee would not have a legitimate use for the
label off a box. Thus, Lash’s removing a label from a box and leaving the plant, would cause a
reasonable employer more reason to be suspicious of the employee’s motive, than if the
employee removed a box with the label on it.
The General Counsel presented the testimony of Bruce Rosen, the President of B.
Rosen Veal and Lamb. Rosen testified that it is common in the meat packing industry for
competitors to buy each other’s products and he has no objection to having his veal and lamb
resold to a competitor.
Rosen also testified that if given the label from one of his products, he could not
determine to whom he sold the product because the label has no customer information on it.
This does not precisely contradict Ayzenberg’s subsequent testimony that with the label and
other information stored in its computers, Rosen would be able to determine where his products
were shipped.
Although his testimony is somewhat ambiguous, on cross-examination by Respondent’s
counsel, Rosen lent some support to Respondent’s contentions. He explained that every
company in the meat packing industry may have a need to buy competitors’ products to fill

23 It is certainly true that any meat product can be traced backwards from the consumer to
the retailer, meat packer, slaughterhouse and even to the farm on which an animal was bred.
U.S. Department of Agriculture regulations require that any defective meat be capable of being
tracked to determine the source of contamination.
24 Rodriguez testified that he spoke to his supervisor, Nate Marino, before taking boxes
home in 2003 and 2004 (Tr. 1193, 1195). Raymond Orsini also testified that an employee
asked permission from management before taking boxes out of the plant. This suggests that
employees may have understood that they were not free to take empty boxes out of the plant
without asking permission.
Rodriguez also testified that some of the boxes he took in 2003 were empty Rosen boxes
that still had the labels on them. While I don’t specifically find this testimony incredible, I decline
to find that Rodriguez ever took Rosen boxes out of the plant without permission from a
supervisor.
25 See for example the testimony of Gray Hat Jose Maldonado at Tr. 1809-1810, as well as
the testimony of Raymond Orsini. Both men appeared to be completely unfamiliar with any
company policy regarding the labels on boxes that employees were allowed to take home.
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customers’ orders and that it is often more convenient to deal with a middleman than to call the
ten or so major companies in the industry to obtain the extra product.
Rosen then testified that it probably had been a number of years since he had bought
veal or lamb from Catelli directly. His answer to the following questions suggests that
Respondent might have a valid business reason for keeping its purchases of competitors'
products secret:
Q. Mr. Rosen, isn’t it true that you prefer to go through a middleman than
directly to a competitor because you would have concern that the competitor
might not sell to you directly, correct?
R. That would be a concern.
Q. Also true that if the competitor knew that it was you, they may charge you
more than you otherwise would be able to be charged if you go through a
middleman?
…
R. Sometimes correct.
Tr. 705-06.
Q. Based upon your experience in the industry and knowing how traders work, if
one of your competitors---I mean can you give us a reason why---a rational
reason why a competitor of yours would acquire your product through a
trader paying a commission as opposed to going directly to you and saving
him or herself that commission?
R. Probably the competitor would think that I would not want to sell to him or her
directly.
Q. Why would the competitor think that?
R. I have no idea.
Tr. 708-09.
The General Counsel has not met is evidentiary burden under Wright Line. He has
established that Lash engaged in union activity, that Respondent knew of this activity and
harbored a tremendous amount of animus towards Lash as a result. However, the General
Counsel has not established discriminatory motivation for the discharge. Moreover, assuming
that the General Counsel has made out a prima facie case, Respondent has proved its
affirmative defense.
Respondent has established that it discharged Lash for conduct that was not protected
and that the reasons given for the discharge are not a pretext advanced to discharge Lash for
his protected activities. First of all, I find that Respondent reasonably assumed that Lash took
the label with the intention of harming the company in some manner. Secondly, I find that its
assertion that the label could be used to its detriment, i.e., compromising its ability to get Rosen
lamb or veal when it needed it, is not specious.
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I conclude therefore that Respondent fired Lash for removing the Rosen label from its
facility and that this is a valid nondiscriminatory reason for his discharge.26 Therefore I
conclude that Catelli Brothers did not violate the Act in discharging Lash for this conduct.27
Section 8(a)(1) allegations unrelated to Nicholas Lash
Complaint paragraph 7(b) implied threat of discharge by Darryl Beckham
Complaint paragraph 7(b), alleges that Respondent, by Darryl Beckham, made an
implied threat in mid-December 2005 to discharge an employee because he was engaging in
union activities at the Collingswood plant. This allegation is predicated on the testimony of
Ralph McKinney, who worked for Respondent for two years at Collingswood until he was
terminated in early 2006 for failing to show up for work or calling in.
McKinney testified that Darryl Beckham told him, “if you deal with the Union, you won’t
be here long.” McKinney testified on direct and cross examination that the conversation
occurred in December 2004 (Tr. 1071, 1093). On recross, McKinney indicated the conversation
occurred in late 2005.
Beckham testified that he never said anything to McKinney along the lines that if he went
to the Union’s 2005 Christmas lunch or in any way associated with the union organizers he
would be terminated (Tr. 1587). In part, because McKinney had trouble remembering even the
year in which this alleged conversation occurred, I credit Beckham and dismiss Complaint
paragraph 7(b).
Alleged surveillance of employees’ union activities (Complaint paragraphs 11(a), (e) and (f))
The General Counsel alleges that beginning in early October 2005 (the second
organizing drive), Respondent has regularly engaged in surveillance of employees’ union
activities. The allegation in Complaint 11(a) is essentially that Darryl Beckham, Steve Williams,
Vanessa Vogt and Anthony Catelli spent an unusual amount of time outside observing the
activities of union organizers and Respondent’s employees in front of the Collingswood plant.
Complaint paragraphs 11(e) and (f) allege that Respondent, by Steve Williams and Vanessa
Vogt, engaged in unlawful surveillance by taking photographs of employees’ union activities.28
The idea behind finding, “an impression of surveillance” as a violation of Section 8(a)(1)
of the Act is that employees should be free to participate in union organizing campaigns without
the fear that members of management are peering over their shoulders, taking note of who is
involved in union activities, and in what particular ways...an employer creates an impression of

26 I reach this conclusion even though Respondent’s termination letter cited “the many
warnings given to you,” two which I find violated Section 8(a)(3). I conclude that Respondent
would have and legally could have, fired Lash solely for taking the Rosen label.
27 In this vein, the General Counsel argues that Respondent’s failure to call as witnesses the
suppliers who sold Rosen meat to Catelli Brothers indicates that Respondent could not establish
that it legitimately feared that Lash’s conduct could hurt its business. Respondent identified
these suppliers to the General Counsel. Thus, the General Counsel could have subpoenaed
the suppliers and attempted to prove that Respondent’s articulated concern had no rational
basis.
28 The Complaint also alleges that Theodore “Butch” Marshall photographed employees’
union activities. However, there is no evidence in the record to support such an allegation.
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surveillance by indicating that it is closely monitoring the degree of an employee’s union
involvement.
Flexsteel Industries, 311 NLRB 257 (1993).
Nevertheless, it is not a violation of the Act for an employer to merely observe open
union activity. On the other hand, conduct violates the Act if it would lead employees to
reasonably believe that the employer is keeping track of their union activities. Such conduct,
includes, but is not necessarily limited to, recording the names of employees, videotaping or
photographing them, Fred’k Wallace & Son, 331 NLRB 914 (2000).
The General Counsel’s evidence in support of these allegations varies a great deal.
Nick Lash testified that during the first campaign in the fall of 2004, management personnel and
line supervisors, who only occasionally came outside on breaks, started doing so on a regular
basis. He said these included Anthony Catelli, H.R. Director Sharon Rodilosso, human
resource specialist Vanessa Vogt, and gray hats Darryl Beckham, Steve Williams and Sam
Prather. Lash said after the election of January 20, 2005, these individuals stopped going
outside at breaks. Then during the second campaign in the fall of 2005, according to Lash,
Beckham, Williams, Vogt and Mark Lema, who replaced Rodilosso, started coming outside
again regularly.
The testimony of Louis Loiacono, the Union’s organizing director, appears to be
internally inconsistent as to the presence of company supervisors and/or agents. He testified
first that at the beginning of the first campaign he didn’t see any of these people, but that two
months into the campaign supervisors and/or line leaders were outside in front of the plant
whenever rank and file employees were outside (Tr. 907-08). On cross examination, however,
he testified that during the first campaign he did not see members of Respondent’s
management sitting outside during breaks (Tr. 943). Then a few minutes later, he appeared to
say precisely the opposite.
Q. Forgive me. I thought you said that during the 2004 campaign, you did see Sharon
Rodilosso, Maria Rivera, Tony Catelli and Darryl Beckham sitting outside?
R. That’s right.
Q. Okay. And how often did you see them outside during that first campaign?
R. Pretty often, the two or three times a week I was there. Two or three times a day,
when I was there.
Tr. 947.
Regarding the second campaign, Loiacono testified that he started seeing Line Leader
Darryl Beckham outside every time he was at the Collingswood facility starting in late December
2005, right after the Union hosted a luncheon for Catelli employees across the street from the
plant (Tr. 918). On cross examination and redirect, Loiacono testified that he saw Beckham
outside during breaks every day between September and December 22, 2005 (Tr. 961, 986).
Organizer Raphael Castillo also testified that Beckham was outside in front of the plant every
day between September 2005 and August 2006 (Tr. 1134).
Darryl Beckham testified that he has always taken his breaks outside in front of the plant
in nice weather. Conversely, he stated that in very cold weather, he spent his break and lunch
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time inside watching TV in the plant’s cafeteria. While Beckham’s testimony does not directly
contradict that of the union organizers that he was outside all the time during break times during
the winter of 2005-06, he stated that he never changed his routine on account of the presence
of union organizers (Tr. 1580).
Steve Williams also testified that he regularly spent his break time out in front of the
plant before and after the organizing drives. Like Beckham, Williams denied changing his
routine due to the presence of union organizers in front of the plant (Tr. 1697-98). Vanessa
Vogt also denied changing her routine to watch employees’ union activities (Tr. 2029).
Given the variations in the General Counsel’s witnesses’ accounts regarding the
presence of Respondent’s agents in front of the Collingswood plant, I decline to credit any of
them. Thus, I find that the General Counsel has failed to establish that supervisors and/or
agents of the Respondent spent more time out in front of the Collingswood plant in order to
keep an eye on employees’ contacts with union organizers. Moreover, I also conclude that
even if they did so, their observation of union activity that was open and notorious did not violate
Section 8(a)(1). Thus, I dismiss these items of the Complaint.
Complaint paragraphs 11(c) and (d)(i)):
Alleged unfair labor practice violations by Darryl Beckham and Tom Thomson in connection with
the Union’s Christmas luncheon on December 22, 2005.
The Union hosted a luncheon for Catelli employees on December 22, 2005 at a
restaurant across the street from the Collingswood plant. The General Counsel alleges in
Complaint paragraph 11(c) that Respondent, by line leader Darryl Beckham, violated Section
8(a)(1) by 1) threatening employees with the loss of their Christmas bonus if they attended; 2)
telling employees that he would record their names and report them to Anthony Catelli, if they
attended the luncheon; and 3) telling employees that they better make sure that Catelli didn’t
see them cross the street to attend the lunch. The General Counsel also alleges in Complaint
paragraph 11(d)(i) that Tom Thomson threatened employees with loss of a Christmas bonus if
they engaged in union activities.
Beckham not only denies these allegations but testified that he attended the luncheon at
the invitation of Richard Rodriguez, then one of the Union organizers. This is disputed by
Rodriguez and Raphael Castillo, another organizer. Given the inconsistencies in the testimony
of the General Counsel’s witnesses, I credit Beckham and dismiss Complaint paragraph 11(c).
Richard Rodriguez testified that on December 22, 2005, at about 10:45 a.m., just before
the Union hosted a luncheon for Respondent’s employees, he was standing across the street
from the plant with Anwar Colindres (“Dubar’). Rodriguez testified that Darryl Beckham was
sitting on a bench in front of the plant with Vanessa Vogt, from Respondent’s human resources
department. Vogt denies being outside in front of the plant the day of the luncheon. Rodriguez
testified further that Thomas Thomson came out of the plant and told Darryl Beckham to write
down the names of any employees who crossed the street to attend the luncheon and that
those employees would not get their Christmas bonus (Tr. 1220). Thomson denies this
happened. When employees came out of the Catelli plant, Rodriguez testified that Beckham
told them they had better not cross the street and go to the Union’s lunch or they would be
written up and would not get their Christmas bonus (Tr. 1220). Despite this, Rodriguez testified
that 30-40 employees attended the Union’s luncheon (Tr. 1326).
Colindres’ testimony is materially different. He testified he was across the street with
Organizer Rafael Castillo on December 22, 2005, not Rodriguez. “Dubar” also testified that he
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heard Darryl Beckham tell employees they if they crossed the street to attend the Union’s
luncheon, he would write down their names so they would not get their bonus (Tr. 1396).
“Dubar” then testified that he had an exchange of words with Beckham, a detail not present in
Rodriguez’s testimony. Colindres’ account does not, as does Rodriguez, mention Vanessa
Vogt’s or Thomas Thomson’s presence in front of the plant just before the luncheon. 29
A rumor was widely circulated throughout the Collingswood workforce that Respondent
was making a list of employees who attended the Union’s Christmas luncheon. However, the
General Counsel has not established that there was any substance to this rumor. Moreover, a
number of employees attended the luncheon and the only employee who did not get a
Christmas bonus was Ralph McKinney, who did not get a one due to absenteeism. I credit
Thomson and dismiss paragraph 11(d)(i).
Complaint paragraphs 11(e) and (f): photographing of employees’ union activities
Nick Lash testified that in April or May 2006, Vanessa Vogt, a Catelli human resources
specialist, took digital photographs of employees talking to him and Richard Rodriguez when
they were stationed in front of the Collingswood plant as organizers. Vogt denies this.
Union Organizer Director Loiacono testified that Vogt took photographs of the union
organizers in late February or March 2006. It is not clear whether he alleges that she
photographed any of Respondent’s employees as well. In any event, Vogt denies taking any
photographs of any union activity with either a cell phone or digital camera. I deem her denials
to be at least as credible as the General Counsel’s evidence and dismiss these allegations.30
The Complaint also alleges that “Butch” Marshall photographed employees’ union
activities. There is no evidence in the record to support this allegation. Thus, it is dismissed as
well.
Finally, the General Counsel alleges that Respondent violated the Act when Steve
Williams photographed the spouse of one of Respondent’s employees. Respondent concedes
that Williams photographed a Vietnamese man who entered its employee parking lot after
talking to a union organizer who is also Vietnamese.31 Respondent contends that it believed
that this individual was a union employee who was trespassing on its private property. After
photographing this man, Respondent discovered that the man was not an employee of the
Union, but rather the spouse of one of its employees. Respondent’s photographing of this
individual does not constitute a violation of the Act and thus I dismiss Complaint paragraph
11(f).
Calls to the police and threats to call the police: Complaint paragraphs 11(b) and (d)(ii).
An employer’s exclusion of union representatives from public property violates Section
8(a)(1) so long as the union representatives are engaged in activity protected by Section 7 of

29 Due to this omission, I credit Vogt, as well as Beckham and Thomson with regard to the
Christmas luncheon.
30 Other than the fact that she still works for Respondent, Vogt gave me no reason to
discredit her testimony; on the other hand, I have discredited portions of the testimony given by
Lash and Loiacono.
31 I credit Williams’ testimony that he saw this individual, who he knew was not a Catelli
employee, on Respondent’s property (Tr. 1689).
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the Act. If an employer interferes with such activities by calling the police or threatening to call
the police, it also violates the Act, Roger D. Hughes Drywall, 344 NLRB No. 49 (2005), slip
opinion pp. 2-3; Bristol Farms, 311 NLRB 437 (1993).
The General Counsel alleges that Respondent violated the Act in this regard on a
number of occasions by threatening to call the police in mid-December 2005, February 2006
and March 2006 (Complaint paragraph 11(d)) and by actually calling the Collingswood police on
November 11 and 29, 2005, February 16, 2006 and March 1, 2006. I find that Respondent
violated the Act in all four instances in which it actually summoned the Collingswood police. In
none of these cases did it establish that it was motivated by a reasonable concern, such as
public safety or interference with legally protected interests, e.g., Nations Rent, Inc., 342 NLRB
179, 181 (2004).
November 11, 2005: Nick Lash testified that he was working as an organizer alone on
this date on the public sidewalk in front of the Collingswood facility. After he had been there for
about 15 minutes, the Collingswood police showed up in the person of Mike Pope, a policeman
who also works part-time for Respondent driving a truck. Pope told Lash that Jerry Scanlon,
one of Respondent’s managers, had called the police department to complain about Lash
loitering in front of its premises. Pope instructed Lash to cross the street in order to perform his
organizing duties. The Collingswood Police Department’s report, GC Exh. 28(a), corroborates
Lash’s testimony, which I credit. There is no evidence that Lash was doing anything other than
engaging in protected union activity on public property. Scanlon did not testify. Therefore, I find
that Respondent violated Section 8(a)(1) as alleged.
November 29, 2005: Nick Lash testified that he was engaged in organizing activities
across the street from the plant at lunchtime when a policeman showed up. The officer told
Lash that he had received a call from Mark Lema, an employee of Respondent’s human
resources department, who complained that Lash was harassing employees. After a discussion
with Lash, the officer took no action and left. GC Exh. 28(b) corroborates Lash’s account. For
the same reasons mentioned with regard to the November 11, incident, I conclude that
Respondent violated the Act by calling the police on November 29. Lema did not testify and
there is no other evidence indicating that Respondent had any reasonable concerns which
would justify his call summoning the police.
Thomas Thomson called the Collingswood police on two occasions. With regard to the
first occasion, on February 16, 2006, Thomson complained that union organizers were loitering
in front of Catelli Brothers property. Thomson testified that Lash was, “impeding the right of way
for tractor trailers pulling in if they need to be, another gentlemen [was] impeding the right of
way for guards or anyone from security area needing to pull in to get to their spots and they
wouldn’t allow—they weren’t allowing the employees to walk freely through—to cross the street
to go get their lunch” (Tr. 1915).
According to the Collingswood Police Department’s report, GC Exh. 28(d), Thompson
told the police officers that several employees had complained to him about union organizers
harassing them. He did not testify about such complaints the instant hearing. I therefore find
that he received no such complaints.
Thomson also apparently did not tell the police officers that the organizers were
impeding vehicle access to Catelli property. I therefore find they were not doing so. Moreover,
even if I were to credit his testimony, I would find that Respondent, by Thomson, violated the
Act in calling the police.
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Thomson’s testimony on its face establishes that the organizers were not actually
impeding the access of vehicles to Respondent’s property. He allegedly called the police simply
because they had the potential to impede such access if they stayed in the locations he
observed them if a truck pulled up (Tr. 1974-75). While Respondent would not have violated the
Act if it called the police because the organizers were impeding traffic or actually interfering with
the free passage of Respondent’s employees, it has not established that they were doing so.
The police informed the organizers that they could not stand still, but must keep moving
in order to remain on the public sidewalk in front of the Catelli Brothers facility. There is no
requirement that union organizers must keep moving to distribute union literature. I find that
Respondent violated Section 8(a)(1), as alleged, for summoning the police.
On March 1, 2006, Thomson called the police again. At the hearing, Thomson testified
that he did so allegedly after a single employee named Mano Salaya complained to him about
the organizers harassing him in an unspecified manner. Salaya did not testify.
According to the police report, GC Exh. 28(e), Thomson told the police officers that
several employees complained to him that they were being harassed. Since there is no
probative evidence that the organizers were doing anything but engaging in protected activity on
a public sidewalk, Respondent clearly violated Section 8(a)(1) on this occasion as well.32 The
police told organizers Lash and Rodriguez that they must keep moving if they wished to remain
in front of the plant.
As to the allegations in Complaint paragraph 11(d) regarding alleged threats to call the
police, I am unsure as to whether these refer to the same incidents set forth of paragraph 11(b)
or separate incidents. In any event, the remedy for the violations found with regard to
paragraph 11(b) will include an order to cease and desist from threatening to call the police as
well as actually calling them.
Violations relating to the Shrewsbury plant: Complaint paragraphs 13 and 14(e)
The allegations in Complaint paragraphs 13 and 14(e) are predicated entirely on the
testimony of Lizardo Ruiz Sena (Ruiz). He worked for Respondent from 1992 until July 2005,
when he was terminated after exhausting his leave under the Family Emergency Leave Act
(FMLA). Ruiz was off work on medical leave from April 2005 until he was terminated. He was
one of the most open supporters of the Union at the Shrewsbury plant. For example, he
distributed union material and encouraged employees to support the Union in front of company
supervisors on a regular basis.
Complaint paragraph 13 alleges that on or about February 21, 2005, Respondent, by
Shrewsbury Plant Manager Edward Cook, violated Section 8(a)(1) by telling employees not to
go the Labor Board, but rather to rely on Anthony Catelli. Ruiz testified that 2-3 weeks before
the January 20, 2005 election, Cook, in a meeting for all Shrewsbury unit employees, said
something to the effect that he knew “that a lot of people are going to the Department of

32 In order to justify excluding the Union from public property, Respondent would, at a
minimum, have to present first hand evidence of harassment, Bristol Farms, 311 NLRB 437 n. 3
(1993). Moreover, an employer may not seek to expel union organizers from public property
simply because an employee or employees are not receptive to their message—or, as may
often be the case, that an employee or employees do not want their employer to think that they
are receptive to the union’s message, See McCarty Foods, Inc., 321 NLRB 218 (1996).
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Labor…and they’re not going to solve anything for you. Only Tony Catelli fixes their problems
(Tr. 839-40).”
Complaint paragraph 14(e) alleges that from the last week of January 2005 into mid-
March 2005, Respondent reduced Ruiz’s work hours to retaliate against him for his union
support and activities. Ruiz testified that early in January 2005, he was transferred from the
boning line at Shrewsbury to the kill floor. Starting with the week of the election, Ruiz testified
that while other employees were sent to the boning line after they were finished slaughtering
calves, he and two other prominent union supporters were sent home. On those days, Ruiz
testified that he only worked for 4-5 hours; employees who did not support the Union and had
less seniority worked and were paid for a full day.
Respondent has not contradicted Ruiz’s testimony in any manner.33 Furthermore, it has
not offered any non-discriminatory explanation for the reduction in his hours or for the fact that
he was sent home while other employees continued to work. His testimony, his affidavit, the
Complaint and Respondent’s payroll records are all consistent with regard to the contention that
Ruiz suffered a loss of work hours in comparison to employees for whom there is no evidence of
union support. In the absence of any explanation for this disparity, I find this evidence sufficient
to establish that the reduction in Ruiz’s work hours, compared to these employees, was due to
Respondent’s animus towards his union activities.
I therefore find that Respondent violated Section 8(a)(3) and (1) as alleged in Complaint
paragraph 14(e).34 Pursuant to Wright Line, the General Counsel has established that Ruiz
engaged in union activity and that Respondent was aware of this fact. I infer animus towards
those activities from Mr. Catelli’s August or September speech at Collingswood, the
discriminatory treatment of Nick Lash and the otherwise unexplained discrimination against Ruiz
regarding his hours of work. I infer discriminatory motive, as well, from these factors for the
reduction of Ruiz’s work hours, as compared to other kill floor employees.
While Ruiz’s testimony does not precisely correspond to the allegations in Complaint
paragraph 13, it is sufficiently close that I find that Respondent, by Edward Cook, violated
Section 8(a)(1). I find that Cook intended to convey to Shrewsbury employees that it would be
futile for them to organize or seek the help of any government agency to rectify any issues they
had regarding the terms and conditions of their employment. I also find that employees would
reasonably understand that to be the crux of Cook’s statement.

33 Exh. G.C. 49 appears to support Ruiz’s testimony. While I have not checked exhibits
G.C. 48 and 49 against the chart on page 44 of the General Counsel’s brief, I compared the
hours worked by Luis Ruiz from pay date January 7, 2005 through February 18, 2005 against
the hours worked by all other kill floor employees.. With few exceptions, Ruiz’s hours are
considerably less. For example, compared to Miguel Rojas, Sam Sanchez, Moises Rojas,
Edwin Serna , Maria Torres and Mauricio Escobar, his hours were substantially less for the pay
dates February 4, 11 and 18, 2005.
34 Respondent contends at pages 135-36 of its brief that Ruiz’s credibility is somehow
undercut by the fact that when given a choice of working 4-5 hours on one particular Friday in
February 2005 or taking paid time off, Ruiz chose the latter. There is no inconsistency. Ruiz’s
affidavit makes it clear that he desired to work a full day when he came to work and overtime, if
available.
Moreover, Ruiz’s testimony and the supporting evidence that retaliation began after the
Union lost the January 20, 2005 representation election does not detract at all from the General
Counsel’s case.
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The Objections case
The Union’s objection to conduct affecting the results of the election turns on several
uncontradicted facts.35 The Union designated Nick Lash, who Respondent had discharged in
March 2005, as its observer at the Collingswood plant for the August 25, 2006 election. At the
time of August 2006 election, the legality of Lash’s discharge was pending before the Board.
Respondent refused to allow Lash to serve in this capacity. The Employer allowed Lash to vote
ten minutes before the polls closed. Respondent allowed Lash into the plant only with an
escort, Engineering Vice President Donald Crozier.
Crozier met Lash at the front door and escorted him up the stairs to the second floor.
Crozier waited by the staircase while Lash walked down the hall to Respondent’s cafeteria to
vote. Crozier then escorted Lash out of the plant.
As a general rule, an employee, who has been discharged and whose discharge is the
subject of an pending unfair labor practice charge, may serve as an observer at an election.
Generally, an employer’s refusal to permit such an employee to be an observer is objectionable,
Kellwood Co., 299 NLRB 1026, 1029 (1990). Respondent justifies its conduct on the grounds
that Lash had been working as a union organizer for almost a year prior to the election.
However, pursuant to Kellwood, I find that this is not a lawful reason for refusing to permit Lash
to serve as the Union’s observer. By prohibiting Lash from serving as the Union’s observer,
Respondent engaged in objectionable conduct.
Impact of the Objectionable Conduct on the Election
In resolving the question of whether Employer misconduct is de minimis with respect to
affecting the results of the election, the Board takes into consideration the number of violations,
their severity, the extent of dissemination, the size of the unit and other relevant factors, Caron
International, 246 NLRB 1120 (1979):36 Mercy General Hospital, 334 NLRB100, 107 (2001).
As to the severity and dissemination of the misconduct, I note that this record does not
indicate that unit employees were aware that the Union designated Lash as its observer and
that Respondent refused to allow him to serve as its observer. However, if he had been in the
polling place, they would have been aware of this fact and many may have appreciated the
symbolism of having an employee allegedly discriminatorily discharged as the Union’s observer.
Unit employees were most likely aware that Lash was one of the most prominent union
supporters in the workforce and that he had been fired by Respondent in early 2005. His
presence as the Union’s observer may well have influenced their vote in the election by
conveying the impression that the Union was not powerless.
On the other hand, the fact that I have concluded that Respondent’s termination of Lash
did not violate the Act is also a factor for consideration, as well as the fact that the Union lost the
election by a lopsided margin. On balance, I conclude that this sole instance of objectionable
conduct is an insufficient basis for setting aside the results of the August 2006 election.

35 The Charging Party also filed an objection on the grounds that Respondent failed to transmit
the Excelsior list (list of current employees with addresses) to the Board in a timely fashion.
The Charging Party withdrew this objection in its post-hearing brief.
36 Volume 246 of the NLRB reports is improperly bound. Page 1059 follows page 1122.
Page 1123 appears in the volume about 30 pages later.
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I hereby recommend that the Board certify the results of the August 2006 representation
election in which a majority of unit employees cast their ballots against union representation.
Summary of Conclusions of Law
1. On or about September 20, 2004, Respondent, by Anthony Catelli, Jr., violated
Section 8(a)(1) in interrogating Nicholas Lash as to whether Lash had signed a union
authorization card and creating the impression that that his union activities were under
surveillance.
2. In early November 2004, Respondent, by Sharon Rodilosso, violated Section 8(a)(1)
by attempting to restrain and coerce Nick Lash from distributing union authorization cards in non
work areas at non-working times.
3. In December 2004, Respondent, by Theodore Marshall, violated Section 8(a)(1) by
directing Nick Lash to remove a Union insignia from his hardhat.
4. Respondent violated the Act by threatening to call the police and by actually calling
the police on November 11, and November 29, 2005, February 16, 2006 and March 1, 2006 in
response to protected activity by union organizers on public property in front of Respondent’s
Collingswood plant.
5. Respondent, by Edward Cook, at the Shrewsbury plant, violated Section 8(a)(1) by
suggesting to employees that it would be futile for them to organize or seek the help of any
government agency to address dissatisfaction with the terms and conditions of their
employment.
6. Respondent violated Section 8(a)(3) and (1) by transferring Nick Lash from the
portion control line to the stew line in November 2004; and by issuing Nick Lash disciplinary
warnings on January 4, and February 25, 2005.
7. Respondent violated Section 8(a)(3) and (1) by reducing the work hours of
Shrewsbury employee Lisardo Ruiz in early 2005.
8. Respondent did not violate the Act by discharging Nick Lash in March 2005.
CERTIFICATION OF THE RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots has not been cast for the Union in
the representation election of August 25, 2006.
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.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended37

37 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Continued
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ORDER
The Respondent, Catelli Brothers, Inc, Collingswood, Shrewsbury and Pennsauken,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disparaging and ridiculing union supporters in such a manner as to suggest
that union activity is inconsistent with continued employment with Respondent;
(b) Interrogating employees about their union or other protected activities;
(c) Creating the impression that employees’ union or other protected activities
are under surveillance;
(d) Interfering, restraining or coercing employees with regard to the distribution of
union or other protected materials in non-work areas while employees are not supposed to be
working.
(e) Directing employees to remove union insignias;
(f) Calling the police or threatening to call the police in response to union or other
protected activity on public property;
(g) Transferring, disciplining, reducing the hours, or in any other manner
discriminating against employees for engaging in union or other protected activities.
(h) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make Nicholas Lash and Lisardo Ruiz whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, computed on a quarterly
basis from the date of the discriminatory personnel actions to the date their employment was
terminated, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful transfer of Nicholas Lash and unlawful discipline and within 3 days
thereafter notify Nicholas Lash in writing that this has been done and that the transfer and
disciplinary warnings will not be used against him in any way.
(c) 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
_________________________
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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records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its Collingswood and
Shrewsbury, New Jersey facilities, copies of the attached notice marked “Appendix” in both
English and Spanish.38 Copies of the notice, on forms provided by the Regional Director for
Region 4, 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. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since September 20, 2004.
(e) 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.
(f) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, Washington, D.C., May 1, 2007.
____________________
Arthur J. Amchan
Administrative Law Judge

38 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–31–07
Shrewsbury, NJ
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 transfer you, discipline you, reduce your hours of work or otherwise discriminate
against any of you for supporting Local 342 of the United Food and Commercial Workers Union
or any other union.
WE WILL NOT disparage or ridicule your union or other protected activities in such a manner as
to suggest that such activities are inconsistent with continued employment at Catelli Brothers.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT create the impression that your activities in support of a union are under
surveillance.
WE WILL NOT call the police or threaten to call the police in response to lawful union activity or
concerted protected activity on public property in front of our facilities.
WE WILL NOT prohibit you from distributing union literature in non-work areas at times when
you are not supposed to be working.
WE WILL NOT direct you to remove union insignias from your hard hat.
WE WILL NOT suggest to you that it would be futile to join a union or to concertedly seek
redress from a government agency for a work-related problem.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL make Nicholas Lash whole for any loss of earnings and other benefits resulting from
his discriminatory transfer from the portion line to the stew line, less any net interim earnings,
plus interest.
WE WILL make Lisardo Ruiz whole for any loss of earnings and other benefits resulting from
the discriminatory reduction of his hours in January – March 2005.
JD–31–07
Shrewsbury, NJ
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful transfer and disciplinary warnings issued to Nicholas Lash and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the transfer and disciplinary
warnings will not be used against him in any way.
CATELLI BROTHERS, INC.
(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.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
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, 215-597-7643.