Noah's Ark Processors, LLC d/b/a WR Reserve

National Labor Relations Board - Administrative Judge Opinions

Oct 11, 2019

14-CA-217400 (N.L.R.B. Oct. 11, 2019)

JD-78-19
Hastings, NE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NOAH'S ARK PROCESSORS, LLC d/b/a WR
RESERVE
And
Cases 14-CA-217400
14-CA-224183
14-CA-226096
14-CA-231643
14-CA-235111
UNITED FOOD AND COMMERCIAL WORKERS
LOCAL UNION NO. 293
William LeMaster and Julie Covel, Esqs.,
for the General Counsel
Jerry L. Pigsley and Ashley S. Dugan, Esqs.,
for the Respondent
Frederick Zarate, Esq.,
for the Union.
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. These cases were tried on March 18-22, 2019,
in Hastings, Nebraska, based on the General Counsel’s second consolidated complaint alleging that Noah’s
Ark Processors, LLC d/b/a WR Reserve (“Respondent”) violated Sections 8(a)(1) and (5) and 8(d) of the
National Labor Relations Act (“Act”), beginning on November 6, 2017, and continuing through the hearing.
The United Food and Commercial Workers Local Union No. 293 (“Union”) represents a unit of
employees working for Respondent at its Hastings slaughter, processing, and packing facility. The parties’
most recent collective-bargaining agreement expired on January 28, 2018. On November 6, 2017, the
Union sent Respondent a reopener letter requesting dates for the parties to commence negotiations over a
successor agreement. In this letter, the Union requested certain information about unit employees for it to
use during negotiations. The Union repeated its requests for the information at issue on December 27,
2017, January 5, January 24, February 12, and March 6 and 28, 2018. The complaint alleges Respondent
unlawfully failed or refused to provide the Union with the information.
The complaint also alleges that since at least January 23, 2018, Respondent solicited employees to
resign from the Union and to cease paying dues, provided employees with pre-printed forms to resign from
the Union and revoke their dues-checkoff authorizations, interrogated employees about their support for
the Union, and coerced employees into signing pre-printed forms prohibiting Respondent from disclosing
their employment information without their written consent. This latter form labeled as “confidential”

1 Abbreviations in this decision are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint Exhibits; “GC Exh.” for General
Counsel’s Exhibit; “CP Exh.” for Charging Party’s Exhibit; “R Exh.” for Respondent’s Exhibit; “GC Br.” for General
Counsel’s brief; and “R. Br.” for Respondent’s brief.
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much of the same information the Union had requested for bargaining. The complaint further alleges that
at around this time, Respondent began failing to deduct and remit dues to the Union despite valid, unexpired,
and unrevoked dues-checkoff authorizations and changed unit employees’ hourly wage rates, without the
Union’s consent and without bargaining with the Union to a good-faith impasse.
The complaint further alleges that in March 2018, Respondent, through its supervisors, told 5
employees during a meeting that they were not represented by a union, it was going to remove the Union,
there would be no union moving forward, and they would not receive a raise because of the Union.
Later in March, a group of employees engaged in a work stoppage to protest wage disparities and
to demand increases. Respondent’s managers allegedly threatened the employees with discharge if they
did not return to work, then discharged 10 employees for participating in the work stoppage, and later stated10
the police would be called if the employees did not leave the property.
Next, the complaint alleges that in late June 2018, Respondent unlawfully bypassed the Union and
engaged in direct dealing with unit employees when supervisors surveyed employees about moving the
observance of the Independence Day holiday from July 4 to July 6.
In October 2018, the Board issued subpoenas to employees to provide affidavits as part of the15
investigation into the underlying unfair labor practice charges against Respondent. The complaint alleges
that in late October and early November 2018, Respondent unlawfully interrogated employees about the
correspondence they received from the Board or about the Union, without providing the assurances required
under Johnnie’s Poultry, 146 NLRB 770 (1964), enf. denied on other grounds 344 F.2d 617 (8th Cir. 1965).
It also alleges that Respondent, through its supervisors, unlawfully required employees to meet with and 20
use attorneys compensated by Respondent prior to and when meeting with Board agents for their affidavits.
Respondent and the Union commenced negotiations over a successor collective-bargaining
agreement in late March 2018. The complaint alleges that since March 2018, and continuing, Respondent
has failed to bargain in good faith with the Union by, in addition to the above conduct, failing to cloak its
bargaining representatives with the authority to enter into binding agreements, cancelling bargaining 25
sessions at the last moment, failing to make bargaining proposals, and failing to provide explanations for
rejections of the Union’s bargaining proposals. The complaint also alleges Respondent made statements
and engaged in conduct to undermine the Union as the employees’ bargaining representative.
Finally, the complaint alleges that on about January 30, 2019, Respondent implemented its last,
best, and final offer, in which it made changes to dues checkoff, grievance procedures, safety, holidays, 30
union access, and the term of the agreement, which are all mandatory subjects of bargaining, without
bargaining with the Union to a good-faith impasse. The complaint also alleges Respondent insisted to
impasse and implemented a change to the scope of the unit, which is a permissive subject of bargaining.
As explained below, I find Respondent committed certain of the alleged violations and recommend
certain remedial steps to address those violations. I recommend dismissing the remaining allegations.35
II. STATEMENT OF THE CASES
The Union filed the charge in Case 14-CA-217400 on March 28, 2018; the charge in Case 14-CA-
224183 on July 23, 2018 (later amended on August 22, September 20, and December 19, 2018); the charge
in Case 14-CA-226096 on August 22, 2018 (later amended on September 20 and December 19, 2018); and
the charge in Case 14-CA-231643 on November 26, 2018 (later amended on December 19, 2018). On 40
December 28, 2018, the Regional Director for Region 14, on behalf of the General Counsel, issued a
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3
consolidated complaint and notice of hearing in these four cases. On January 11, 2019, Respondent filed
its answer to this consolidated complaint, denying the alleged violations.
On February 1, 2019, the Union filed its charge in Case 14-CA-235111 (later amended on February
11, 2019). On February 22, 2019, the Regional Director for Region 14, on behalf of the General Counsel,
issued an order further consolidating cases, second consolidated complaint, and notice of hearing, adding 5
the allegations from Case 14-CA-235111. On March 8, 2019, Respondent filed its answer to the second
consolidated complaint, denying the alleged violations.
At the hearing, all parties were afforded the right to call, examine, and cross-examine witnesses,
present any relevant documentary evidence, and argue their respective legal positions orally.2 Respondent
and General Counsel filed post-hearing briefs, and General Counsel filed a reply brief, which I have 10
carefully considered. Accordingly, based upon the entire record, including the post-hearing briefs and my
observations of the credibility of the witnesses, I make the following
III. FINDINGS OF FACT3
A. Jurisdiction and Labor Organization Status15
At all material times, Respondent has been a limited liability company with an office and place of
business in Hastings, Nebraska, where it has been engaged in the slaughter, processing, packaging, and
non-retail sale of meat products (“Hastings facility”). In conducting its operations during the 12-month
period ending November 30, 2018, Respondent sold and shipped from its Hastings facility goods valued in
excess of $50,000 directly to points outside the State of Nebraska. During the 12-month period ending 20
November 30, 2018, Respondent, in conducting its operations, purchased and received at its Hastings
facility goods valued in excess of $50,000 directly from points outside the State of Nebraska. Respondent
admits, and I find, that, at all material times, it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. As such, I find this dispute affects commerce and the
Board has jurisdiction of these cases, pursuant to Section 10(a) of the Act.25

2 On the third day of hearing, Respondent filed a motion for a bill of particulars and for a more definite statement
regarding subparagraphs 11(b) and 12(a) of the second consolidated complaint, and it moved for a continuance to
receive and review that additional information. The General Counsel orally opposed the motions. After discussions
with the parties, the General Counsel introduced GC Exhs. 17 and 18, which provided additional details regarding the
allegations contained in those two paragraphs. After which, I denied Respondent’s motions. (Tr. 612-622).
3 Although I have included citations to the record to highlight particular testimony or exhibits, my findings and
conclusions are not based solely on those specific citations, but rather on my review and consideration of the entire
record. The findings of fact are a compilation of credible testimony and other evidence, as well as logical inferences
drawn therefrom. To the extent testimony contradicts with the findings herein, such testimony has been discredited,
either as having conflicted with credited testimony or other evidence, or because it was incredible and unworthy of
belief. In assessing credibility, I primarily relied upon witness demeanor. I also have considered factors such as: the
context of the witness's testimony, the quality of the witness’s recollection, testimonial consistency, the presence or
absence of corroboration, the weight of the respective evidence, established or admitted facts, inherent probabilities,
and reasonable inferences that may be drawn from the record as a whole. See Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions. Indeed, nothing is more common in judicial decisions than to believe some, but not all, of a
witness’s testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008) (citing
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), rev’d. on other grounds 340 U.S. 474 (1951)).
There are certain specific credibility determinations set forth below.
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Respondent admits, and I find, that, at all material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
B. Respondent is a Successor to Nebraska Prime Group
Prior to January 1, 2015, Nebraska Prime Group (“NPG”) owned and operated the Hastings facility.
On January 1, 2015, Respondent acquired the Hastings facility when it purchased the business of NPG. 5
Respondent admits, and I find, that since January 1, 2015, it has continued to operate NPG’s business in
basically unchanged form, employed as a majority of its employees individuals who were previously
employees of NPG, and adopted the collective-bargaining agreement between NPG and the Union, dated
January 28, 2013 to January 28, 2018.
C. Collective-Bargaining Relationship10
In 2011, and through the sale of its business on around January 1, 2015, NPG recognized the Union
as the exclusive collective-bargaining representative of “all production, maintenance, shag drivers and
distribution employees, excluding office clerical employees, professional employees, guards and
supervisors, as defined in the Act (hereinafter “the Unit”). Since January 1, 2015, Respondent has continued
to recognize the Union as the designated exclusive collective-bargaining representative of the Unit. At all 15
times since January 1, 2015, based on Section 9(a) of the Act, the Union has been the exclusive collective-
bargaining representative of Respondent's employees in the Unit.
The Unit consists of between 250-300 employees. Approximately 80 percent of the Unit is Spanish
speaking and is unable to read, speak, or write in English.4
Prior to the expiration of the parties’ 2013-2018 collective-bargaining agreement, the Union 20
requested to enter into an extension agreement while the parties commenced negotiations over a successor
agreement. (Jt. Exh. 3). Respondent declined to enter into an extension agreement, and there is no evidence
the parties agreed to extend any portion of their agreement post expiration.
D. Respondent’s Operations and Hierarchy
Respondent has its corporate offices in New Jersey. The chief executive officer is Fischel 25
Ziegelheim. His business partner/consultant is Michael Koenig. At the Hastings facility, Mike Helzer is
the plant manager. Under Helzer is Paul “Pablo” Hernandez, the operations manager. Lidia Acosta is the
human resources manager. Chris Kitch is the fabrication superintendent. Clay Irish is the slaughter
superintendent. Kitch and Irish report to Hernandez. Joel Murillo, Jose Madrigal, Karen Mendoza, Josue
Guerrero, Marulys Castillo Cisnero, and Luis Prado are supervisors. Murillo, Madrigal, Mendoza, and 30
Guerrero report to Kitch. Each of these individuals is an admitted supervisor and agent of Respondent,
within Section 2(11) and (13) of the Act, respectively. Dinora Murillo is the human resources assistant and
Mary Junker is the former human resources manager and current administrative assistant. Both are admitted
agents of Respondent within Section 2(13) of the Act.
35

4 Transcript page 553, lines 18-20 is corrected to reflect that Counsel for General Counsel asked human resources
manager Lidia Acosta, “Okay, and like – my recollection also is about eighty percent of the hourly employees do not
speak, read, or write English?” Acosta answered “Correct” and that they were “Spanish speaking.”
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IV. ALLEGED UNFAIR LABOR PRACTICES
A. Requests for Information about Unit Employees for Bargaining
1. Factual Summary
On November 6, 2017, Union President Mike Marty sent a reopener letter to Respondent’s CEO
Fischel Ziegelheim requesting dates for the parties to meet to begin negotiations over a successor collective-5
bargaining agreement. (Jt. Exh. 2). In the letter, Marty requested Respondent provide the following
information for each Unit employee for the past 12 months: (1) a unique employee identifier; (2) department
where employee works; (3) job classification; (4) job group/bracket; (5) hourly rate; (6) full-time or part-
time status if applicable; (7) hiring/seniority date; (8) termination date, if applicable; (9) the total number
of hours worked, including all hours worked such as regular, overtime and premium hours (not to include 10
any hours paid but not worked, such as vacation and sick leave); (10) the number of overtime premium
hours worked and paid; (11) the number of Sunday premium hours worked and paid; (12) the number of
6th day premium hours worked and paid; (13) the number of 7th day premium hours worked and paid; (14)
the number of holiday premium hours worked and paid; (15) the number of night shift premium hours
worked and paid; (16) the number of vacation hours paid but not worked; (17) the number of hours paid 15
but not worked; (18) the number of personal day hours paid but not worked; (19) the amount of health and
welfare contributions made; (20) the amount of pension contributions made; and (21) any other premium
hours worked or hours paid but not worked. Respondent did not reply to the request for bargaining dates
or the information.
20
Over the next 4 months, the Union made multiple follow-up requests for this same information.
(Jt. Exh. 3). On December 27, 2017, Marty sent Ziegelheim an email reiterating his earlier request for
bargaining dates and the listed information, stating the Union needed that information for bargaining a
successor agreement. The Union received no response. On January 5, 2018, Marty sent a letter to
Ziegelheim and Respondent’s attorney, Jerry Pigsley, attaching a copy of his November 6 letter. The Union25
again received no response. On January 15, the Union’s attorney, Eric Zarate, emailed Pigsley that the
Union had not received any response to its prior requests, and it was renewing those requests. On January
17, Pigsley replied that he was working on getting the Union the requested information and he wanted to
know dates the Union was available to commence bargaining. On January 24, Zarate replied to Pigsley that
assuming the Union received the requested information soon, the Union tentatively planned to begin 30
negotiations on around February 20. On February 12, Zarate sent Pigsley a letter stating that the Union still
had not received any response to its earlier requests, including its request for information. On February 19,
Pigsley replied to Zarate, proposing multiple bargaining dates in March, and noting that his client would
seek to provide the Union with the requested information within the next 30 days. Later that day, Zarate
agreed with Respondent’s proposed bargaining dates if “the Company provides the requested information 35
in the near future as indicated.” (Jt. Exh. 3, p. 8). By email dated March 6, Zarate asked Pigsley if
Respondent could provide any portion of the requested information prior to the parties’ first negotiation
session, which was scheduled for March 22. Pigsley replied that he had no update on the information the
Union requested and he would seek to have his client provide some of the information ahead of the first
bargaining session.40
The parties met, as scheduled, for their first bargaining session on March 22, 2018. Respondent
did not provide any of the information the Union had requested. (Tr. 662-663). On March 28, 2018, Zarate
sent Pigsley an email that the Union was prepared to file an unfair labor practice charge if, by the end of
the day, Respondent did not provide the Union with the requested information and schedule additional 45
bargaining dates. (Jt. Exh. 3, pp. 17-18). Respondent provided neither.
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On March 29, the Union filed its unfair labor practice charge in Case 14-CA-217400, alleging, in
part, that Respondent was failing or refusing to provide the Union with the requested information which
was relevant and necessary to bargaining.
The parties next met for contract negotiations on May 15, 2018. At that meeting, Respondent still 5
had not provided the Union with any of the requested information.
On June 20, 2018, the parties entered into an informal Board settlement agreement in Case 14-CA-
217400. The settlement included a requirement that Respondent provide the Union with the information it
had been requesting since November 6, 2017. (Jt. Exh. 11)10
On July 13, 2018, Respondent sent the Union certain information for 15 employees in a Unit of
between 250-300 employees. (Jt. Exh. 19). On July 16, Zarate emailed Pigsley advising him, in detail,
how Respondent’s production was deficient. (Jt. Exh. 20). On August 13, 2018, Zarate sent Pigsley an
email regarding additional bargaining dates, inquiring whether Respondent would be providing any 15
additional information in response to the Union’s request(s). Although the parties continued to meet for
negotiations through the end of 2018, Respondent failed to provide the Union with any additional
information, and no additional information was provided as of the hearing. (Tr. 666).
2. Allegations and Analysis20
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) of the Act when it
failed or refused to fully provide the Union with the information requested on November 6 and December
27, 2017, January 5, January 24, February 12, and March 6 and 28, 2018, relating to Unit employees’ terms
and conditions of employment, including: employees’ departments, job classifications, job groups, hourly 25
wage rates, full-time or part-time status, seniority dates, termination dates, if applicable, hours worked and
paid, overtime worked and paid, premium hours worked and paid, vacation hours paid, personal day hours
paid, health and welfare contributions, and pension contributions, all of which is necessary for, and relevant
to, the Union’s performance of its duties as the exclusive bargaining representative of the Unit.5
Section 8(a)(5) provides it is an unfair labor practice for an employer “to refuse to bargain 30
collectively with the representatives of its employees.” An employer's duty to bargain includes providing
the union with requested information that is relevant and necessary to contract negotiations, contract
administration, grievance adjustment, and other representational duties. NLRB v. Acme Industrial Co., 385
U.S. 432, 435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-153 (1956); Postal Service, 332
NLRB 635, 635 (2000). Most information concerning bargaining unit employees that pertains to their 35
wages, hours, and terms and conditions of employment is presumptively relevant and must be furnished
upon request. North Star Steel Co., 347 NLRB 1364 (2006); Bryant & Stratton Business Institute, 323
NLRB 410 (1997). The burden is on the employer to rebut that presumption. A-1 Door & Building
Solutions, 356 NLRB 499, 500 (2011); Southern California Gas Co., 344 NLRB 231, 235 (2005); and
Miller Processing Services, 308 NLRB 929 (1992).40
In each of the requests at issue, the Union sought the same information. From the outset, the Union
made it clear to Respondent that the information was necessary for contract negotiations. The information
requested directly relates to the Unit employees’ wages, hours, and other terms and conditions of
employment, and, therefore, is presumptively relevant. For 9 months, Respondent failed to provide the
Union with any information, and it only provided partial information after entering into an informal 45

5 Paragraph 8 of the second consolidated complaint. A violation of Section 8(a)(5) is also a derivative violation of
Section 8(a)(1). Tennessee Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir. 1956). See ABF
Freight System, 325 NLRB 546 fn. 3 (1998).
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settlement agreement. The information provided was for a small percentage of the Unit, even though the
requests (and the informal settlement agreement) called for Respondent to produce all the requested
information for all Unit employees. Respondent has presented no defense to these allegations. In fact,
Respondent does not address its failure or refusal to provide the requested information in its post-hearing
brief. Based on these factors, I find Respondent repeatedly failed or refused to provide the Union with 5
relevant and necessary information, in violation of Section 8(a)(5) and (1) of the Act.
B. Union Resignations, Revocations of Dues Deduction Authorizations, Non-Disclosure of
Employment Information Forms, and Statements about the Union
1. Factual Summary
a. Union Resignations and Revocation of Checkoff Authorizations 10
Article 21 of the parties’ agreement, entitled “Plant Visitation,” states, in part, that Respondent will
allow Union representatives the opportunity to meet with new employees during orientation to discuss the
Union’s role at the Hastings facility and to solicit them to apply to join the Union and authorize dues
deduction from their paychecks. (Jt. Exh. 1). Prior to June 30, 2017, Respondent allowed Union business
agent Terry Mostek and Union secretary Carmen Perez to meet with new employees during their 15
orientations in accordance with Article 21. The checkoff authorization form (which is in Spanish or English,
depending on the employee’s fluency) states in pertinent part:
This authorization shall be irrevocable for a period of one year from the date of execution
thereof or until the termination of the collective bargaining agreement between the company I
work for and my Union, whichever occurs sooner, and from year to year thereafter, unless not 20
fewer than thirty days and not more than forty-five days prior to the end of any subsequent
yearly period or the termination of the collective bargaining agreement, respectively, I give
the company and my Union written notice of revocation bearing my signature thereto.
(GC Exh. 10).6
After meeting with the new employees during orientation, Perez would orally notify Respondent’s 25
human resources manager Lidia Acosta which employees had joined the Union and authorized dues
checkoff. (Tr. 178-179). When Perez orally notified Acosta, Acosta would mark on the employee’s new-
hire form whether the employee was “union” or “nonunion.” (Tr. 545)(GC Exh. 6). Later, Perez would
provide Acosta with signed copies of the employee’s signed dues-checkoff authorization. Acosta would
send a copy of that form to Respondent’s corporate office in New Jersey, and she would retain a copy in 30
the employee’s personnel file at the Hastings facility. (Tr. 543-547).
Acosta regularly provided Perez with lists of Unit employees who were no longer actively working
for Respondent (i.e., either terminated, resigned, or on a leave of absence). Perez would use these lists to
determine which Unit employees would no longer have dues deducted and remitted. Additionally, on a
monthly basis, Respondent provided the Union with a list of employees for whom Respondent deducted 35
dues from their paychecks and remitted those dues to the Union. (Tr. 193)(Jt. Exh. 14)(GC Exh. 14).
On around June 30, 2017, Respondent banned Union business agent Terry Mostek, and all Union
agents, including Perez, from accessing the Hastings facility after Mostek allegedly told employees they

6 There is no union-security provision in the parties’ agreement.
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would earn more if they worked at a Union-represented plant in nearby Grand Island, Nebraska.7
Respondent also ceased regularly providing Perez with the lists of employees no longer actively working
at the facility. (Tr. 590-591). On June 20, 2018, Perez emailed Acosta with new Union membership
application/dues-checkoff authorization forms and asked her to distribute them to new Unit employees
because Perez was no longer able to access the facility to meet with the employees. (Tr. 185) (GC Exh.5
13). Perez received no response from Acosta. (Tr. 185).
Between September 2017 and July 2018, over 50 Unit employees signed documents resigning their
membership in the Union and revoking their dues-checkoff authorization. (Jt. Exh. 12). All but two of the
employees signed pre-printed forms Respondent created and provided to them. Those forms stated, “I,
_________, no longer wish to participate on the union. Please stop withdrawing my dues effective 10
immediately.” For those who signed prior to early July 2018, the pre-printed resignation/revocation form
was in English only. For those who signed after early July 2018, the resignation/revocation form was in
English and Spanish. As stated, approximately 80 percent of the Unit does not speak, read, or write English.
Each of the employee witnesses who signed one of these pre-printed resignation/revocation forms
testified they went to human resources on their own initiative and stated they no longer wanted to be part 15
of the Union or no longer wanted to pay Union dues, and Acosta gave them a form to sign. There is no
evidence Acosta said anything, or took any action, to encourage them to resign from the Union or revoke
their dues-checkoff authorization.
After Acosta received an executed resignation/revocation form, she scanned and emailed it to
Respondent’s corporate office in New Jersey, because the corporate office handled payroll, including the 20
deduction and remittance of Union dues. Acosta then placed the original executed form in the employee’s
personnel file. Respondent did not provide the Union with copies of these executed forms. (Tr. 555-556).
Usually within a month or two, Respondent’s corporate office ceased deducting and remitting dues
for those employees who signed a resignation/revocation form. The monthly lists Respondent provided to
the Union of employees for whom Respondent deducted dues and remitted to the Union reflect that from 25
July through December 2018 Respondent did not deduct and remit dues for those employees who executed
a resignation/revocation form. (GC Exhs. 13 and 21).
b. Non-Disclosure of Confidential Employment Information Forms
Beginning in January 2018, and continuing through July 2018, human resources manager Lidia
Acosta and her assistant, Dinora Murillo, began circulating forms entitled “Request for Non-Disclosure of 30
Confidential Employment Information” for employees to sign. This form, which was in English, stated:
I understand that Noah’s Ark Processors, LLC (“employer”) has information
regarding my employment not generally available or known to the public. I understand that
such information is confidential information safeguarded by my employer. Such confidential
information includes:35

7 The Union filed a grievance which went to arbitration on April 25, 2018. On June 25, 2018, the arbitrator ruled in
the Union’s favor, but Respondent continued to deny the Union access to the facility. The Union then sought
enforcement of the arbitrator’s decision in federal district court. On January 28, 2019, the federal district court
enforced the arbitration decision. (Jt. Exh. 24). During this period, and as of the hearing, Respondent barred all Union
representatives from accessing the facility. (Tr. 590). This denial of access is not alleged as an unfair labor practice.
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· Personal (social security number, address, date of birth, marital status);
· Hiring (job application, resume, interview notes, employment history,
employment assessments, background checks, reference checks, I-9 forms);
· New-Hire Paperwork (offer letters, employment contracts, handbook and policy
acknowledgments); 5
· Performance (performance reviews, performance documentation, documented
recognition, warnings and disciplinary notices, job descriptions, documented job
changes/promotions);
· Compensation and Benefits (salary or hourly pay rates, merit increases and
bonuses, other forms of pay, pay changes, benefit information); 10
· Payroll (time card sheets, work schedules, pay stubs, direct deposit forms,
authorization for deducting or withdrawing pay, tax forms, status change forms);
· Termination (termination or layoff records, resignation letter, unemployment
insurance claim); and
· Attendance (dates and reasons for absence, time off, and leaves).15
I request that this confidential information concerning my employment with the
employer not be disclosed without my prior written consent. I understand that the employer
may be required to disclose such confidential information in accordance with federal and state
laws.20
(Jt. Exh. 13).
Acosta received these non-disclosure forms from Respondent’s attorney, Jerry Pigsley, in early
January 2018, and she was told to circulate them among the employees. (Tr. 558).8 Within a day or two,
Acosta and Murillo went out into the work areas and began approaching Unit employees about signing the
form. They asked employees whether they authorized Respondent to share their personal information with 25
others. If the employees said “no,” Acosta or Murillo would have them sign a non-disclosure form. (Tr.
559-560). Certain employees inquired about who would be asking for their information, and Acosta
identified the Union as one that could ask, but she did not mention that the Union had, in fact, asked for
this sort of information. (Tr. 560). The first form was signed and dated by a Unit employee on January 8,
2018, and employees continued to sign the forms through July 2018. (Jt. Exh. 13, pg. 36). In total, 30
Respondent collected signed non-disclosure forms from approximately 50 employees. (Tr. 562).
Respondent offered no explanation for why it created and began circulating the non-disclosure form for
Unit employees to sign.
Respondent did not limit itself to asking employees if they voluntarily wanted to sign the non-
disclosure form. The General Counsel presented several employee witnesses who were told they were 35
required to sign the form. Aramis Hernandez-Acosta was a Spanish-speaking Unit employee who went to
human resources because he wanted to resign from the Union and withdraw his dues-checkoff
authorization. He did this in late February 2018. He was later told by his supervisor, Joel Murillo, that he
had to go to the human resources office because they wanted him to sign a document. (Tr. 363). Hernandez-
Acosta then went to the human resources and met with Lidia Acosta. The two spoke in Spanish. 40
Hernandez-Acosta first asked Acosta whether she was going to fire him, and she told him there was no
reason to fire him. Acosta then told him that “somebody” wanted his “information.” She did not explain
who that “somebody” was or what “information” they wanted. She handed him the non-disclosure form--

8 The transcript incorrectly states Acosta testified she received the form from “Gary.” (Tr. 558).
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which was in English--and told him to sign it. (Jt. Exh. 13, p. 1) (Tr. 363-364). She did not translate the
document or explain what it said. Hernandez-Acosta then signed the form. (Jt. Exh. 13, p. 1).
In early July 2018, Juvencio Ramirez De la Cruz9 was another Spanish-speaking Unit employee
who went to human resources to resign from the Union and revoke his checkoff authorization. A couple
days after he went and signed a resignation/revocation form, he was contacted by Dinora Murillo who told 5
him he needed to sign a copy of the non-disclosure form in order to complete his Union
resignation/revocation transaction. (Tr. 401) (Jt. Exh. 13, p. 32). She did not translate the document or
explain what it said. (Tr. 403). De la Cruz signed the form.
In early July 2018, Marcial Torres-Santiago, another Spanish-speaking Unit employee, went to
human resources to resign from the Union and revoke his checkoff authorization. He met with Lidia Acosta, 10
who provided him with a pre-printed resignation/revocation form. She also provided him with a copy of
the non-disclosure form and told him he had to sign it. (Tr. 448-450). Torres-Santiago signed the non-
disclosure form as instructed. (Jt. Exh. 13, p. 38).
After obtaining the non-disclosure forms, Acosta and Murillo put them in a separate folder. They
were not placed in the employees’ personnel files. When asked why she kept the signed non-disclosure 15
forms separate, Acosta replied, “I do not know.” (Tr. 563). Like the signed resignation/revocation forms,
Respondent did not provide the Union with copies of the employees’ signed non-disclosure forms.
c. September 2018 Solicitation and Interrogation
In around September 2018, Celesta Sanchez, a Union steward/employee, observed Lidia Acosta
approach two Unit employees out on the work floor, with “a booklet” and some papers. The two employees 20
were Richard and Veronica (last names unknown). Sanchez could not hear what was said. She asked her
supervisor, Karen Mendoza, what Acosta was doing. Mendoza said Acosta was giving the two employees
forms to withdraw from the Union because they had gone to the human resources office to resign from the
Union. (Tr. 383-384; 393). There was no other evidence presented regarding these alleged conversations.
Later, Sanchez saw Acosta approach two other employees, Gina (last name unknown) and Torres 25
(unknown if that was the person’s first or last name), with a “booklet” and papers in her hand. Again,
Sanchez could not hear what Acosta was saying, and she could not see what the documents were in her
hand. Sanchez also did not see Gina or Torres sign the documents. (Tr. 385-386). There was no other
evidence presented regarding these alleged conversations.
2. Allegations and Analysis30
The General Counsel alleges that Respondent violated Section 8(a)(1) of the Act: (1) on various
dates since January 23, 2018, when Respondent, through Lidia Acosta and Dinora Murillo, provided
employees with pre-printed forms to resign from the Union and to revoke their dues-checkoff authorization;
(2) on various dates since January 23, 2018, when Acosta and Murillo coerced employees into signing pre-
printed forms prohibiting Respondent from disclosing an employee’s employment information without 35

9 The transcript spells the witness’s name as “Javenceo,” but the exhibits spell it as “Juvencio.” The latter appears to
be the correct, or at least the more common, spelling of the name.
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11
written consent; and (3) on about September 2018, when Acosta solicited employees to resign from the
Union and interrogated employees about their support for the Union. (GC Br. 14-24).10
a. Pre-printed Union Resignation and Revocation of Dues-Checkoff Form
The first allegation concerns Respondent’s creation and distribution of the pre-printed
resignation/revocation forms. The Board has held employers may provide employees with assistance about 5
resigning their union membership and withdrawing their dues-checkoff authorization without violating the
Act, as long as the assistance it provides concerns the procedures or mechanics of doing so and does not
rise above mere “ministerial” assistance. However, an employer may not attempt to ascertain whether
employees will avail themselves of the right to resign or withdraw authorization, or otherwise create a
situation where employees would reasonably feel in peril by refraining from resigning or withdrawing 10
checkoff authorization. Space Needle, LLC, 362 NLRB 35, 36 (2015). The Board has provided some
guidance for how an employer may and may not assist its employees in this regard. Compare Narricot
Industries, 353 NLRB 775, 776 (2009) (employer provided more than permissible ministerial aid where an
employee asked his HR director “how to oust the union” and the director prepared a petition for the
inquiring employee, as well as, two other employees, telling them the number of signatures needed and 15
directing them to return the petitions to him daily); Florida Wire & Cable, 333 NLRB 378, 381 (2001)
(employer provided more than ministerial aid when it gave employees advice on how to resign from the
union, displayed sample resignation letters at a meeting with employees, and, mailed sample letters to
employees); Manhattan Hospital, 280 NLRB 113, 115 (1986) (employer which solicited resignations from
the union, evidenced a continuing interest in knowing if employees intended to resign their union 20
membership, and, in some instances offered assistance, was engaging in conduct aimed at causing
disaffection from the union and unlawfully interfered with employees' free exercise of their Section 7
rights); Erickson's Sentry of Bend, 273 NLRB 63, 64 (1984) (employer acted unlawfully when store
manager, upon request of an employee, provided language for a petition to resign from the union, which
the employee copied, signed and gave to the manager in the manager's office; and, the manager discussed 25
with the employee which other employees the manager might approach about resigning from the union,
calling those employees to his office; thereby, giving the appearance the employer favored the petition, and,
encouraged the employees to sign the petition); Rock-Tenn Co., 238 NLRB 403, 404 (1978) (employer
provided unlawful assistance by telling employee his failure to submit a dues-checkoff revocation would
leave him one of a very small number of employees who continued to authorize the checkoff of union dues, 30
because it was an attempt to influence the employee to jump on the “bandwagon” and join the purported
nearly unanimous group of employees who had revoked their checkoff authorizations); and Winn-Dixie
Stores, Inc., 128 NLRB 574, 588 (1960) (employer acted unlawfully when it prepared a form resignation
from the union letter, addressed the envelopes to send the letters, and, saw to the mailing of the resignation
letters to the union); with Mississippi Chemical Corp., 280 NLRB 413, 419 (1986) (employer provided no 35
more than ministerial aid by drafting letter for employee to sign renouncing the union after employee

10 Subparagraph 5(c) of the second consolidated complaint alleges since January 23, 2018, on various dates,
Respondent, by Lidia Acosta, Dinora Murillo, Mary Junker, Joel Murillo, Jose Madrigal, Karen Mendoza and other
supervisors and agents presently unknown to the General Counsel, at Respondent’s facility violated Section 8(a)(1)
when it: (1) solicited employees to resign from the Union and cease paying Union dues; (2) provided employees with
pre-printed forms to resign from the Union and to revoke their dues checkoff authorizations; (3) interrogated
employees about their support for the Union; and (4) coerced employees into signing pre-printed forms prohibiting
Respondent’s disclosure of employees’ employment information without employees’ written consent. Counsel for
General Counsel presented evidence at hearing, and argued in its post-hearing brief, that Acosta and Dinora Murillo
engaged in the above unlawful conduct, but it did not argue in its post-hearing brief that Mary Junker, Joel Murillo,
Jose Madrigal, Karen Mendoza, or another supervisor or agent of Respondent engaged in the above conduct. Based
on my review of the record, I find no evidence these other individuals engaged in the conduct listed. In the absence
of evidence and argument, I recommend dismissing the allegations in this subparagraph involving individuals other
than Acosta and Dinora Murillo.
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12
expressed disenchantment with the union during conversation with supervisor); Peoples Gas System, 275
NLRB 505 (1985) (employers issued letters to union members just prior to contractual window period for
revoking dues-checkoff authorization, pointing out the revocation provision and dates. In both cases, the
letters reassured employees that the employer was not urging employees either to remain union members
or to resign from the union and that their choice would have no effect on their wages, benefits, or treatment); 5
Jimmy-Richard Co., Inc., 210 NLRB 802, 804 (1974)(employer only provided ministerial aid when it
prepared and typed letters for employees to deliver to the union rescinding their union authorization during
organizing effort after those employees approached employer about withdrawing authorization); and
Payless Drug Store of Port Angeles, Inc., 210 NLRB 134, 136 (1974)(employer acted lawfully when it
prepared forms for employees to sign if they wanted to resign from the union and informed employees of 10
those forms during meeting, after employees inquired about how to resign from the union).
In this case, each witness who signed a pre-printed resignation/revocation form testified that they,
not Respondent, initiated the process. They went to human resources on their own, stated they no longer
wanted to be part of the Union and/or pay Union dues, and Acosta or Murillo provided them with a copy
of the pre-printed resignation/revocation form to sign. There is no evidence Acosta or Murillo said or did 15
anything else to question or encourage the employees about signing the form. Under Board precedent, I
find Respondent’s sole act of providing employees with this pre-printed form in response to their unsolicited
statements of disaffection and desire to disassociate from the Union and cease checkoff authorization is
nothing more than ministerial assistance.11 I, therefore, recommend dismissing the allegation.
b. Non-Disclosure of Confidential Employment Information Form20
The second allegation concerns Respondent’s creation and distribution of its non-disclosure of
confidential employment information form. Unlike with the resignation/revocation form, where employees
initiated the dialogue, Respondent, through Lidia Acosta and Dinora Murillo, sought out employees and
told them to sign the non-disclosure form if they did not want their information released to others, including
the Union, without their written consent. Additionally, Acosta and Murillo required employees who signed 25
the resignation/revocation form to also sign the non-disclosure form.
The General Counsel argues, and I am persuaded, that Respondent created this non-disclosure form
and solicited employees to sign it in response to the Union’s request(s) for information. I base this
conclusion on three factors. First, there is the timing. The Union made its initial request for information
on November 6, 2017, and then reiterated that request on December 27, 2017, and again on January 5, 2018. 30
Respondent prepared and began distributing the non-disclosure form in early January 2018. As stated, in
February 2018, when Acosta spoke to Hernandez-Acosta about signing the non-disclosure form, she told
him that “somebody” wanted his “information.” Although she did not say who this “somebody” was, their
conversation followed the Union’s request(s) for information about the Unit employees. Second, there is
the scope. As stated, the Union’s information request(s) seeks various documents related to the Unit 35
employees’ wages, hours, benefits, and other terms and conditions of employment. The non-disclosure
form lists as “confidential” many of the same type of documents the Union was seeking in its request(s),
including those arguably falling within the Hiring, New-Hire Paperwork, Performance, Compensation and
Benefits, Payroll, or Attendance categories. Finally, Respondent failed to articulate any reason or
justification for why and when it created and began circulating this form. There is no evidence in the record 40

11 The General Counsel argues Respondent acted improperly by initially only providing these forms in English,
without translation, when 80 percent of the employees in the unit, including the employee witnesses at issue, could
not read, write, or understand English. General Counsel cites no authority for support. Regardless, I find Respondent
did not misrepresent what the document said or the effect it would have.
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13
that employees raised issues about the disclosure of their employment information, or that Respondent was
responding to some other legitimate concern.
Moreover, Respondent did not simply create and circulate these non-disclosure forms—it required
employees to sign them, going so far as to falsely claim that employees had to sign the form in order for
Respondent to effectuate their Union resignation/revocation of dues-checkoff authorization. 5
Under these circumstances, I find Respondent violated Section 8(a)(1) of the Act when it created,
circulated, and required employees to sign this non-disclosure form.
c. Solicitation and Interrogation Allegations
The final issue concerns Acosta’s alleged September 2018 solicitation of employees to resign from
the Union and alleged interrogation of employees about their support for the Union. As stated, an employer 10
may not solicit or encourage employees to resign from their union or revoke their dues-checkoff
authorization. See Albert Van Luit & Co., 229 NLRB 811, 813 (1977), enfd. 597 F.2d 681 (9th Cir. 1979)
(solicitation of checkoff revocations unlawful); Hexton Furniture Co., 111 NLRB 342, 345 (1955)
(solicitation of membership resignations unlawful). Also, except in limited circumstances not present here,
an employer may not interrogate an employee regarding their support for their union. In assessing the 15
lawfulness of an interrogation, the Board applies the “totality of circumstances” test adopted in Rossmore
House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). This test involves a case-by-case analysis of various factors, including those set out in Bourne
v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) the background, i.e., whether the employer has a history of
hostility toward or discrimination against union activity; (2) the nature of the information sought; (3) the 20
identity of the interrogator, i.e., his or her placement in the employer’s hierarchy; (4) the place and method
of the interrogation; and (5) the truthfulness of the interrogated employee's reply. See, e.g., Sproule
Construction Co., 350 NLRB 774, 774 fn. 2 (2007). The Rossmore House factors are not to be
“mechanically applied” and it is not essential that each element be met. The core issue is whether the
questioning would reasonably tend to interfere with, restrain, or coerce employees in the exercise of their 25
statutory rights. This is an objective standard. Multi-Aid Service, 331 NLRB 1126 (2000), enfd. 255 F.3d
363 (7th Cir. 2001). The General Counsel bears the burden of proof.
In this case, the General Counsel attempts to meet its burdens exclusively through the testimony of
Celesta Sanchez. As stated, Sanchez testified she saw Acosta approach and speak to four employees
(Richard, Veronica, Gina, and Torres) out on the work floor, with a “booklet” and papers in her hand, but 30
she did not hear what was said. Sanchez spoke with her supervisor, Karen Mendoza, who stated Acosta
was talking to Richard and Veronica about resigning from the Union, because they had gone to the human
resources office looking to resign from the Union. Without evidence about what was said between Acosta
and these other employees during these exchanges, I find the General Counsel cannot meet his burdens. I,
therefore, recommend dismissing this allegation. 35
C. Failure to Remit Employee Dues
1. Factual Summary
Article 2 of the parties’ collective-bargaining agreement, entitled “Maintenance of
Membership/Dues Checkoff,” states, in pertinent part, that: “The company will withhold from the
employee’s pay such amounts for union dues and initiation fees as the employee has authorized in writing. 40
Such amounts shall be withheld weekly and be remitted to the office of the Local Union on a monthly
basis.” (Jt. Exh. 1, p. 1) (emphasis in original). As stated, the Union provides Respondent with a copy of
each employee’s signed dues-checkoff authorization form, and Respondent stores a copy of that form in
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14
the employee’s personnel file. The form states the authorization shall be irrevocable for a period of 1 year
from the date of execution, or until the termination of the collective-bargaining agreement, whichever
occurs sooner, unless the employee gives Respondent and the Union written notice of revocation not fewer
than 30 days and not more than 45 days prior to the end of any subsequent yearly period or the termination
of the collective bargaining agreement, respectively. 5
Respondent ceased deducting and remitting dues for over 50 Unit employees who submitted their
union resignation and revocation of dues-checkoff authorizations between January and July 2018.12 In
processing those revocations, Lidia Acosta testified human resources did not look at the employees’ dues-
checkoff authorization forms to determine whether the revocations were timely. (Tr. 556). The record 10
reflects that several of these revocations were untimely. There is no dispute Respondent did not notify,
discuss, or bargain with the Union before it ceased deducting and remitting dues to the Union for those
employees who submitted untimely revocations. Respondent also did not obtain the Union’s consent
before, during the life of the agreement, it stopped following Article 2’s requirement that it withhold and
remit dues consistent with the employee’s written authorization, which remains valid unless timely and 15
properly revoked.
2. Allegations and Analysis
The General Counsel alleges that since January 23, 2018,13 Respondent has violated Section 8(a)(5)
and (1) of the Act when it failed and refused to deduct and remit to the Union dues pursuant to valid, 20
unexpired, and unrevoked employee dues-checkoff authorizations without prior notice to the Union and/or
without affording the Union an opportunity to bargain with Respondent with respect to this conduct and the
effects of this conduct and/or without first bargaining with the Union to an overall good-faith impasse for
a successor collective-bargaining agreement. The General Counsel also alleges Respondent violated
Sections 8(a)(5) and (1) and 8(d) of the Act when it engaged in this conduct, without the Union’s consent, 25
between January 23, 2018 and January 28, 2018, while the parties’ collective-bargaining agreement
remained in effect.14 The General Counsel further alleges Respondent independently violated Section
8(a)(1) of the Act by this conduct.15
Sections 8(a)(5) and 8(d) of the Act prohibit an employer from modifying terms and conditions of
employment established by a collective-bargaining agreement during the agreement's term without the 30
union's consent. See, e.g., Knollwood Country Club, 365 NLRB No. 22, slip op. at 2 (2017); Oak Cliff-
Golman Baking Co., 207 NLRB 1063, 1063-1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974), cert.
denied 423 U.S. 826 (1975). When an employer defends against a midterm contract modification allegation
by arguing the contract did not prohibit the challenged action, the Board will not ordinarily find a violation
if the employer's contractual interpretation has a “sound arguable basis.” Bath Iron Works Corp., 345 NLRB 35
499, 501-502 (2005), enfd. sub nom. 475 F.3d 14 (1st Cir. 2007).
Absent a valid defense, Section 8(a)(5) also prohibits an employer from making a material,
substantial, and significant change regarding a mandatory subject of bargaining without first providing the

12 At least two employees (Wisdaly Rojas Navarro and Georgina De La Torre) submitted untimely revocations in the
period between January 23-28, 2018, which Respondent processed.
13 The Union filed the unfair labor practice charge containing these allegations (Case 14-CA-224183) on around July
23, 2018. As a result, the Section 10(b) period goes back to January 23, 2018, and while there is evidence Respondent
effectuated untimely revocations prior to that date, the second consolidated complaint only alleges as unlawful the
conduct occurring on or after January 23, 2018. However, events preceding the Section 10(b) period are properly
considered to lend context to events within the 10(b) period. See Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB,
362 U.S. 411, 414-429 (1960).
14 Subparagraph 10(b) of the second consolidated complaint.
15 Subparagraph 5(d) of the second consolidated complaint.
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15
union with prior notice and a meaningful opportunity to bargain about the change. NLRB v. Katz, 369 U.S.
736, 747 (1962); Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991); Alamo Cement
Co., 281 NLRB 737, 738 (1986). Following the expiration of a collective-bargaining agreement, an
employer must maintain the status quo of all mandatory subjects of bargaining until the parties either agree
on a new contract or reach a good-faith impasse in negotiations. Richfield Hospitality, Inc., 368 NLRB No. 5
44, slip op. at 2 (2019) (citing Triple A Fire Protection, Inc., 315 NLRB 409, 414 (1994), enfd. 136 F.3d
727 (11th Cir. 1998), cert. denied 525 U.S. 1067 (1999)). Stated another way, absent exigent circumstances,
when parties are engaged in contract negotiations, an employer must refrain from making unilateral changes
in unit employees’ terms and conditions of employment absent an overall impasse on bargaining for the
agreement as a whole. RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995); Bottom Line Enterprises, 10
302 NLRB 373, 374 (1991).
Under Board law, dues checkoff is a mandatory subject of bargaining. Lincoln Lutheran of Racine,
362 NLRB 1655, 1656-1657 (2015). An employer's refusal to deduct and remit dues under a valid dues-
checkoff authorization constitutes a unilateral change in terms and conditions of employment, in violation
of Section 8(a)(5) of the Act. Merryweather Optical Co., 240 NLRB 1213, 1215 (1979); Western Block 15
Co., 229 NLRB 482 (1977); and Cavaler Spring Co., 193 NLRB 829 (1971). The Board also has held an
employer violates Section 8(a)(5) by ceasing to deduct and remit dues in derogation of an existing contract.
Hearst Corp. Capitol Newspaper Div., 343 NLRB 689, 693 (2004); and Shen-Mar Food Products, Inc.,
221 NLRB 1329, 1333 (1976), enfd. in relevant part 557 F.2d 396 (4th Cir. 1977).
In Shen-Mar Food Products, Inc., the Board was confronted with similar facts. During the life of 20
the contract, the employer ceased deducting and remitting dues for 9 employees who resigned from the
union but untimely cancelled their dues-checkoff authorizations. The checkoff provision in the parties’
agreement stated: (1) the employer agreed to checkoff and remit monthly dues and initiation fees to the
union for those employees who so authorized; (2) the union agreed to furnish the employer with the
employees’ individual dues-checkoff authorization forms; (3) the union would indemnify and save harmless 25
the employer from any and all claims and disputes associated with the deductions and remittance pursuant
to those authorizations; and (4) the employer agreed to furnish a monthly list to the union showing all newly
hired employees who passed the trial period, or who were laid off or discharged. The checkoff authorization
forms the employees signed set out the requirements to timely revoke their authorization (i.e., written
revocation sent registered mail to both the employer and the union within the established timeframe). 30
The Board held that because the parties’ agreement required the union to furnish the employer with
the employees’ checkoff authorization forms, the employer knew the attempted revocations were untimely
and, therefore, invalid. The Board found the employer’s failure to deduct and remit dues from those who
did not timely revoke their authorizations constituted an unlawful infringement upon Section 7 rights, in
violation of Section 8(a)(1), and it breached the employer’s duty to bargain, in violation of Section 8(a)(5). 35
The Board additionally found that, where an employer ceases to deduct and remit dues in derogation of an
existing contract, it is changing the employees’ terms and conditions of employment, in violation of Section
8(a)(5). 221 NLRB at 1329-1330.16
Although Article 2 does not explicitly require that the Union provide Respondent with the
employee’s individual dues-checkoff authorization, it does require that Respondent withhold and remit dues 40
“as the employee has authorized in writing.” The employee’s signed checkoff authorization form is his/her
written authorization. Once executed, the employee’s checkoff authorization remains in effect until timely
and properly revoked. The Union provides Respondent with a copy of each Unit employee’s signed
checkoff authorization form, and Respondent retains that copy in the employee’s personnel file. Thus, upon
receiving an employee’s written request to cancel checkoff, Respondent has both the information and 45

16 The Board reaffirmed Shen-Mar Food Products in County Concrete Corp., 366 NLRB No. 64 fn. 1 (2018).
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16
obligation to verify the request it received falls within the timely revocation period before it is permitted to
cease deducting dues from the employee’s paycheck and remitting them to the Union. As previously stated,
several of the revocations Respondent processed were untimely.17 For those employees, their checkoff
authorizations remained valid and in effect, and Respondent was obligated to continue deducting and
remitting their dues to the Union. 5
Respondent has offered no defense to these allegations--contractual or otherwise. In fact,
Respondent does not mention these allegations in its post-hearing brief. Respondent does not contest its
failure to notify or bargain with the Union over making the change, or its failure to obtain the Union’s
consent before modifying the contractual revocation process while the agreement was in effect.
Based on the foregoing, I find Respondent’s unilateral change to the revocation process since 10
January 23, 2018 without providing the Union with notice or an opportunity to bargain over the decision or
its effects violated Section 8(a)(5) and (1). I further find Respondent’s failure to obtain the Union’s consent
before modifying the contractual revocation process by processing untimely revocations while the
agreement remained in effect, from January 23, 2018 to January 28, 2018, violated Section 8(a)(5) and (1)
within the meaning of Section 8(d). Finally, I find this conduct constitutes an independent unlawful 15
infringement upon employees’ Section 7 rights, in violation of Section 8(a)(1).
D. Changes to Wage Rates
1. Factual Summary
Article 12 of the parties’ agreement, entitled “Rates of Pay Provision,” sets forth the negotiated
wage rates for all Unit employees. Rates are based on job classifications, and most of the Unit 20
classifications are divided into five groups. According to the agreement, the starting wage rate for
classifications in group 1 is $9/hour; the starting wage rate for those in group 2 is $9.50/hour; the starting
wage rate for those in group 3 is $10/hour; the starting wage rate for those in group 4 is $10.50/hour; and
the starting wage rate for those in group 5 is $11/hour. There are separate wage rates for maintenance crew
members and electricians. In addition to the starting wage rates, the parties negotiated a set schedule for25
wage increases during the life of the agreement. The first increase occurred on January 28, 2013, when all
regular full-time employees in groups 1-5 received a $.30/hour increase. The employees were eligible for
this increase as long as they had completed their 60-day probationary period. (Tr. 101). Thereafter,
employees in groups 1-5 earned a $0.15/hour increase, in accordance with the set schedule, as long as they
passed their 60-day probationary period as of the date of the increase. The scheduled $.15/hour wage 30
increases occurred on July 29, 2013, January 27 and July 28, 2014, January 26, and July 27, 2015, January
25 and July 25, 2016, January 30 and July 31, 2017. The exception to this schedule was for a group of
approximately 28 job classifications (listed in the agreement) that received a one-time $2/hour increase
effective January 28, 2013, and no other increases during the life of the agreement. (Jt. Exh. 1).18
As stated, Article 12 of the parties’ agreement sets forth the scheduled wage increases, and the last 35
increase was to occur on July 31, 2017. Respondent, however, continued to pay $.15/hour increases to Unit

17 The General Counsel also argues the revocations were procedurally deficient because Respondent failed to provide
copies to the Union. I reject this argument. The checkoff-authorization form states the employee, not Respondent, is
required to provide the Union with signed written notice of revocation.
18 In around late January 2017, Respondent unilaterally instituted a new wage scale, set forth in Joint Exhibit 21.
Respondent did not notify or discuss with the Union before implementing these different wage rates. The unfair labor
practice charges at issue do not encompass the implementation of these changes because they occurred outside the
Section 10(b) period, but, as stated, they can be considered to lend context to events within the 10(b) period. See
Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, supra.
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17
employees in January and in July 2018. (GC Exhs. 22-25). Respondent did not notify or discuss with the
Union before continuing to pay these wage increases beyond what was set forth in the agreement.
On around August 23, 2018, Respondent unilaterally implemented an entirely new wage rate
system resulting in wage increases of between $2-$3/hour for all Unit employees. (GC Exh. 4). The new
wage schedule identifies 5 groups of job classifications. Those groups are identified as: light, medium, 5
medium/heavy, heavy, and super/heavy. Classifications in the light group earned $12/hour; classifications
in the medium group earned $13/hour; classifications in the medium/heavy group earned $14/hour;
classifications in the heavy group earned $15/hour; and classifications in the super/heavy group earned
$16/hour. Respondent began paying Unit employees in accordance with this new wage system in around
August 2018. It did not notify or bargain with the Union before creating and implementing this system.1910
2. Allegations and Analysis
The General Counsel alleges that since January 23, 2018, and on various dates, Respondent has
violated Section 8(a)(5) and (1) of the Act when it changed Unit employees’ hourly wage rates and paid
those new rates without prior notice to the Union and/or without affording the Union an opportunity to
bargain over the change and its effects and/or without first bargaining with the Union to an overall good-15
faith impasse for a successor collective-bargaining agreement. The General Counsel also alleges
Respondent violated Section 8(a)(5) and (1) within the meaning of Section 8(d) when it engaged in this
conduct, without the Union’s consent, when the parties’ agreement remained in effect between January 23,
2018 and January 28, 2018.20 In its post-hearing brief, the General Counsel argues Respondent specifically
violated the Act within the Section 10(b) period when it continued to pay the $.15/hour wage increases to20
Unit employees after the final scheduled increase on July 31, 2017, in January and July 2018, and, later,
when it created and implemented the new wage system/rates in August 2018.
As stated, wages are a mandatory subject of bargaining. NLRB v. Katz, supra. A unilateral wage
increase without providing the union notice and opportunity to bargain violates Section 8(a)(5) and (1).
Liberty Bakery Kitchen, Inc., 366 NLRB No. 19, slip op. at 11 (2018). There is no dispute Respondent 25
continued to pay the $.15/hour wage increases to Unit employees beyond the final negotiated July 31, 2017
increase, in January and July 2018, and it created and implemented the new wage system/rates in August
2018. The General Counsel established that Respondent engaged in this conduct, without providing the
Union with prior notice and an opportunity to bargain, while the parties were in the process of negotiating
a successor agreement.21 The General Counsel also established that Respondent failed to notify or bargain 30
with the Union over these matters, or that it failed to notify and receive the Union’s consent before
modifying the contractual wage rates by continuing to pay the increases while the parties’ agreement
remained in effect in late January 2018. Respondent has offered no defense to these allegations--contractual
or otherwise. In fact, like the changes to dues checkoff, Respondent does not mention these allegations in
its post-hearing brief. 35

19 At the hearing, Respondent’s counsel asserted Respondent notified the Union about this new wage rate system, but
he failed to present any evidence as to how or when the Union was notified about this change.
20 Subparagraph 10(a) of the second consolidated complaint.
21 In Richfield Hospitality, Inc., 368 NLRB No. 44 (2019) and Wilkes-Barre General Hospital, 362 NLRB 1212
(2015), the Board held it was a violation of Section 8(a)(5) for the employer to cease paying longevity-based wage
increases post-contract expiration because the contracts in those cases did not address whether the employees would
continue to receive those raises after expiration; therefore, the employers had an obligation to maintain the status quo
post expiration by continuing to pay the increases. Here, the parties’ agreement had a set schedule for the wage
increases, and the last increase was on July 31, 2017. I therefore do not find Respondent was maintaining the status
quo by continuing to pay these $.15/hour increases in January and July 2018.
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Based on the foregoing, I find Respondent violated Section 8(a)(5) and (1) when it unilaterally
continued to pay the $.15/hour wage increases in January and July 2018, and when it created and
implemented the new wage system/rates in August 2018, without providing the Union with notice or an
opportunity to bargain over the decision or its effects. I further find Respondent’s failure to obtain the
Union’s consent before modifying the contract to pay the $.15/hour wage increases between January 23, 5
2018 and January 28, 2018, violated Sections 8(a)(5) and (1) within the meaning of Section 8(d).22
E. March 2018 Safety Meeting
1. Factual Summary
On around March 2018, Respondent held an employee safety meeting attended by supervisors Paul 10
Hernandez, Chris Kitch, Karen Mendoza, and Lidia Acosta. The General Counsel called employee Celesta
Sanchez to testify about this meeting. Her testimony, through translation, was as follows:
Q: What happened at the safety meeting, March of 2018?
A: While there, and when they asked for a raise, Pablo said there was no union.15
Q: Who asked for a raise?
A: A lot of times we were saying we want a raise.
Q: Okay. And Pablo’s response was there is no union; did I hear that right?
A: He said there’s no union in the plant.
Q: Okay. After Pablo said that, did anyone respond?20
A: Yes.
Q: And who was that?
A: One guy said if there is no union, why are they taking dues out of the checks.
Q: Did any supervisor or Lidia -- I know she’s – did anyone from Personnel or any
supervisor respond to that?25
A: Pablo.
Q: What did Pablo say?
A: There was not an agreement with the Union.
Q: Okay. Did Pablo say anything else about the Union?
A: He said there was talks with the Union.30
Q: You had mentioned that Pablo had said that there was no union in the plant.
A: Yes.
Q: Did he say anything else about the Union going forward?
A: He said they were going to talk with the Union because the Company didn’t have a
Union; they didn’t allow them.35
Q: Did he say anything else that the Company was going to do with respect to the
Union?
A: That they were going to get rid of them.
…
Q: Do you remember anything else that Pablo said about the Union?40
A: No.

22 The General Counsel served a pre-hearing subpoena duces tecum on Respondent seeking personnel documents for
Unit employees, in part, to establish the timing, amount, and, if any, reasons for the wage increases. After Respondent
failed to produce this information at the hearing, the General Counsel sought evidentiary sanctions, which I denied.
Without waiving his position, the General Counsel agreed to a sampling arrangement whereby Respondent would
provide the requested information for representative Unit employees. The sampling showed several Unit employees
received wage increases that differed from the contractual increases, in both timing and amount. As stated, I find the
General Counsel has proven the wage allegations, and, therefore, was not prejudiced by my ruling.
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(Tr. 389-392).
2. Allegations and Analysis
5
The General Counsel alleges in its post-hearing brief that in about March 2018, Respondent, by
Paul Hernandez, in the cafeteria at Respondent’s facility, violated Section 8(a)(1) of the Act when he told
employees present for a meeting that there was no union at the facility, Respondent did not allow a union
at the facility, Respondent was going to get rid of the Union, and when Respondent removed the Union,
employees could get a raise.2310
The Board has held such statements--when credited--to be unlawful. See e.g., Roemer Industries,
Inc., 367 NLRB No. 133 (2019) (violation when management official threatened to get rid of the union);
Windsor Convalescent Ctr., 351 NLRB 975, 987-988 (2007), enfd. in relevant part, 570 F.3d 354 (D.C. Cir.
2009) (manager stated there was no union at the facility); Scandia Stucco Co., 319 NLRB 850, 857 (1995) 15
(manager stated company was going nonunion); and Libby-Owens-Ford Co., 285 NLRB 673 (1987)
(employer stated benefits would not be offered because of the union).
However, I do not credit Sanchez’s testimony about this meeting. Her demeanor and tone reflected
a lack of confidence and clarity in her recollection. Her responses were inconsistent, illogical, and, at times, 20
contradictory. For example, she initially testified Hernandez said, “there was no union.” She then clarified
he said, “there’s no union at the plant.” But moments later, she testified Hernandez said, “there was not an
agreement with the Union” and the company was in “talks with the Union.” Later, she stated he said, “they
were going to talk with the Union because the Company didn’t have a Union; they don’t allow them.” And
when asked what Hernandez said the company said was going to do with respect to the Union, Sanchez25
recalled he told them they “were going to get rid of them [referring to the Union].”
The General Counsel also failed to offer any corroborative evidence regarding these alleged
statements.24 This was puzzling because it was a safety meeting where other employees were present, and
one or more of those employees could have been called to testify about what was said. See Electric Hose 30
& Rubber Company, 228 NLRB 966, 970 (1977) (General Counsel’s failure to call other potentially
available witnesses present for meeting to hear supervisor’s allegedly unlawful statements “creates the
compelling inference that no such statement was ever made.”)
Respondent presented Hernandez, Kitch, Mendoza, and Acosta. Each denied Hernandez, or any 35
supervisor or manager, made any of these alleged statements at any meeting. While I generally give less
weight to these types of specific denials, I find their separate denials to be consistent and reliable.
Based on the lack of credible evidence, I find the General Counsel has failed to meet his burden. I,
therefore, recommend dismissing these allegations. 40

23 Subparagraph 5(a) of the second consolidated complaint alleges that about March 2018, Respondent, by Paul
Hernandez and Lidia Acosta, at Respondent’s facility: (1) told employees that they were not represented by a union
at the facility; (2) told employees that Respondent was going to remove the Union from the facility; (3) told employees
that moving forward there would be no union at the facility; and (4) told employees that they would not receive a raise
because of the Union. The General Counsel failed to present any evidence regarding Lidia Acosta attending or
speaking at this meeting. I, therefore, recommend dismissing those allegations, as well.
24 In its post-hearing brief, the General Counsel asserts Kyle Anzualdo attended this March 2018 safety meeting, and
he testified about Hernandez’s statements. Anzualdo, however, testified about a meeting he attended in around
December 2017, where Hernandez was the only supervisor or manager present. (Tr. 460-461). I, therefore, do not
find that Anzualdo’s testimony corroborated Sanchez regarding this March 2018 safety meeting.
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F. March 27, 2018 Work Stoppage, Threats, and Discharges
1. Factual Summary
On March 26, 2018, Guadalupe Ortiz, a packaging employee, and approximately seven other
employees on her line learned that at least one newer employee in their department was earning more per 5
hour than they were. Under the collective-bargaining agreement, employees who remained in the same
classification received increases based on their longevity, which meant a newer employee could not earn
more per hour than a more senior employee. Ortiz and the others decided that the following morning they
would all arrive for work, get their supplies from the supply room, go up to the cafeteria, and wait to speak
with a higher-level manager about the wage disparity and about getting a raise. The employees decided 10
that Ortiz would be the spokesperson for the group because she spoke Spanish and English, and she could
translate for them. While the employees were discussing their plan, their supervisor, Joel Murillo, was
nearby, and he commented to Ortiz “don’t do what you want to do.” (Tr. 259). Nothing else was said.
The following morning, Ortiz and the others on her line arrived for work, got their supplies from 15
the supply room, and then headed up and sat in the cafeteria. Ortiz and others, as well as other employees,
primarily from the packaging department, also arrived in the cafeteria at approximately 6:05 a.m. In total,
there were about 20 employees there.
That morning, Joel Murillo noticed that several of the packaging employees were not on their line 20
working. He asked around and learned they were up in the cafeteria. He went to the cafeteria and saw the
employees sitting. Murillo reported this to his supervisors.
Chris Kitch later went to the cafeteria. He approached Ortiz and asked, in English, “What’s going
on? Why is everyone up here and not down on the floor working?” Ortiz responded, in English, that they 25
wanted to know why raises were not given out and why people were making more than others. (Tr. 265).
Kitch responded that it all had to do with the union contract. Ortiz translated what Kitch was saying into
Spanish for the others. Kitsch informed Ortiz he was going to try and get the owner of the plant. Kitch
then left the cafeteria. He was gone for approximately 15 minutes or so. He returned with Paul Hernandez.
Hernandez said to the group, in Spanish, “those who don’t want to work can go home.” (Tr. 269). After 30
Hernandez said this, the group of employees got up and walked out of the cafeteria. Hernandez told Kitch
to write down the names of the employees who left because he didn’t want those employees back in the
building. As the employees left the cafeteria to go into the hallway, Hernandez said, “you guys either go
to work, leave now, or you’re terminated.” (Tr. 271). One group of employees went back to work. Another
group went and returned their supplies to the supply room because they are not allowed to take supplies out 35
of the building, and they then left the building and went out into the parking lot. There were 10 employees
who went out into the parking lot: Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy Deleon,
Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana Wright.
Hernandez also went out into the parking lot. While the employees were in the parking lot, plant 40
manager Mike Helzer came out to speak with them. He said, in English, that what they were doing violated
the collective-bargaining agreement. (Tr. 273). Ortiz and the others did not know what he was talking
about. Helzer then said that there could be a solution to the problem, and Ortiz translated that into Spanish
for the others. Helzer said the employees could return to their workstations to work the rest of their shift,
and then they could meet and discuss the problem after work. Ortiz translated this for the others, and the 45
employees responded they were not willing to do that. The group said that if they went back into the building
and worked that day, management would forget about the issue and they would not have a solution. (Tr.
274). Helzer then responded they had to leave the parking lot because the police would be there in 5
minutes. (Tr. 275; 738)
50
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Hernandez told the employees, in Spanish, that if they were not willing to work, they needed to
turn in their identification badges. (Tr. 275-276). These badges are used to get past the security gate, to
enter the facility, and for timekeeping purposes—i.e., employees cannot work without them. The
employees each turned in their identification badges to Hernandez. The employees asked Hernandez if
they could wait for Lidia Acosta to arrive. Hernandez refused and told them to leave or he would call the 5
police. (Tr. 484). The employees left. The police were not called.
After the group of employees left, they contacted the Union to report what happened. Several of
the employees went to the Union hall to file a grievance, which the Union later submitted to Respondent.25
10
Later that morning, human resources manager Lidia Acosta learned what occurred and she had the
supervisors involved prepare typed statements about what happened. In his statement, Paul Hernandez
wrote the employees had gathered in the cafeteria that morning “because they had an issue with needing a
raise.” When the employees did not agree to return to work, Hernandez told them they would be considered
terminated for quitting or terminated for not following a supervisor’s instructions. (GC Exh. 16). 15
On March 30, 2018, Joel Murillo completed separation notices for the 10 employees who were
discharged for walking out of the facility. (Jt. Exh. 16). For each of the employees, Murillo checked the
boxes on the notice indicating “job abandonment” and “violation of company policy.” He also checked the
box for each of these employees indicating that they were “not expected to be recalled to work.” Murillo 20
testified he checked the “violation of company policy” box because the employees refused to go back to
work. (Tr. 299). He checked the “not expected to recall to work” box because he believed that if “they do
that one time (walking off the job), they can do it again.” (Tr. 300).
At some point following their terminations, Brittney Spratt, Jimmy Deleon, Maria Diaz, and Sandra 25
Diaz returned to the facility and asked to speak with Lidia Acosta about returning to work. Acosta stated
they would need to prepare a written statement about what happened. The employees then prepared a
handwritten statement, in Spanish, and Acosta then typed up and translated it into English. (Jt. Exh. 17).
Respondent never re-employed any of the 10 employees who participated in the walkout.
30
2. Allegations and Analysis
The General Counsel alleges that on about March 27, 2018, Respondent violated Section 8(a)(1)
of the Act when it discharged employees Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy
Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana
Wright, because they engaged in concerted activities with other employees and each other for the purpose 35
of mutual aid and protection, by concertedly requesting from Respondent explanations about wage
discrepancies and demanding a wage increase.26 The General Counsel also alleges Respondent, by Paul
Hernandez and Mike Helzer, violated Section 8(a)(1) when they: threatened employees with termination
for engaging in protected, concerted activities; told employees they were terminated for engaging in
protected, concerted activities; and threatened to call the police because the employees engaged in 40
protected, concerted activities.27
The Board has held that an employer violates Section 8(a)(1) when it discharges employees because
they participated in a work stoppage to protest wage issues. Atlantic Scaffolding Co., 356 NLRB 835
(2011). In Atlantic Scaffolding Co., a group of unrepresented employees working on a refinery project
prepared a letter demanding an increase in pay and per diem rate. The following day, a group of 45

25 There is no evidence the Union opposed, or did not support, the group’s work stoppage/walkout.
26 Subparagraph 6(a)-(c) of the second consolidated complaint.
27 Subparagraph 5(b) of the second consolidated complaint.
JD-78-19
22
approximately 100 employees gathered outside and presented the letter to a supervisor. The managers
discussed the demands with employees and asked them to return to work while the demands were under
consideration. The employees refused. Another manager ordered the employees to be transported to the
facility’s parking lot. The employees complied and headed to the parking lot. As they exited the gate
leading to the parking lot, the employer collected their identification badges and other equipment. While 5
in the parking lot, the employees continued to discuss their pay demands with supervisors, who continued
to urge them to return to work. After about an hour, security personnel told the employees they had to leave
company property. Some left and others moved to a vacant lot across the street. Security later told the
employees they had to leave the vacant lot because it also was company property. The employees complied.
The following day, certain employees returned to work while others did not. A day later, the employer sent 10
separation notices to all those employees who engaged in the work stoppage and did not return to work.
The Board found the employees were discharged in violation of Section 8(a)(1) because they engaged in a
protected work stoppage to protest their wages. As for the applicable analytical framework, the Board held
as follows:
[W]hen an employer asserts that employees were discharged because they would not return to 15
work after commencing a work stoppage, the assertion suggests that the discharge was for
engaging in the work stoppage itself.... In order to show that employees truly abandoned their
jobs, an employer must present “unequivocal evidence of intent to permanently sever [the]
employment relationship.” ....
Where ... employees are terminated for engaging in a protected concerted work stoppage, 20
Wright Line is not the appropriate analysis, as the existence of the 8(a)(1) violation does not
turn on the employer's motive.... Rather, when the conduct for which the employees are
discharged constitutes protected concerted activity, “the only issue is whether [that] conduct
lost the protection of the Act because ... [it] crossed over the line separating protected and
unprotected activity.”25
Id. at 838 (citations omitted).
In applying this framework, the Board held the employees never lost the Act’s protection by
remaining in the parking lot or vacant lot because they acted peacefully and complied with each of the 30
employer’s requests/demands that they relocate off company property. The Board also rejected the
employer’s argument that the employees abandoned their job, holding there was no evidence the work
stoppage had ended--or that any employee had voluntarily quit--before the termination notices were sent.
Id. at 838-839.28 See also Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 94 (2018) (adopting
judge’s application of Atlantic Scaffolding Co to find employer unlawfully discharged employees for 35
engaging in protected concerted work stoppages).
I find Atlantic Scaffolding Co. to be directly on point. Here, a group of employees also engaged in
a protected, concerted work stoppage to protest wage disparities and demand increases to address the
disparities. They peacefully gathered in the cafeteria, and later in the parking lot, looking to speak with 40
members of management to address their collective concerns. At no point did the employees engage in any

28 The Board also rejected that the work stoppage lost its protection because of the economic harm inflicted on the
employer, holding the argument was antithetical to the basic principles underlying the statutory scheme, i.e., the right
of employees to withhold their labor in seeking to improve their terms of employment, and the use of economic
weapons such as work stoppages as part of the “free play of economic forces” that should control collective bargaining.
Atlantic Scaffolding Co., 356 NLRB at 837 (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)). The Board
held the “protected nature of the work stoppage in this case was not vitiated by the effectiveness of its timing.” Id.
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23
conduct causing them to lose the protection of the Act. On the contrary, aside from not returning to work,
the group followed each instruction they received from management, including leaving the cafeteria, then
leaving the parking lot, and, finally, turning in their identification badges.29 Also, there is no evidence the
employees ever intended to permanently sever their employment relationship. The testimony, Hernandez’s
email summary description of what occurred, and the termination notices establish that Respondent knew 5
the employees were protesting wage matters and they were terminated because they engaged in this work
stoppage/walkout and refused to return to work until their concerns were addressed.
In its defense, Respondent argues the work stoppage was unprotected because it violated Article
16 of the parties’ collective-bargaining agreement, which prohibits the Union and its members from 10
engaging in strikes, stoppages, slowdowns, or suspensions of work during the term of the agreement. The
work stoppage, however, occurred two months after the agreement expired, and a no-strike clause is not
enforceable to waive employees’ right to conduct a work stoppage after expiration of the parties’ agreement
and during the bargaining for a successor agreement. See Litton Financial Printing Division v. NLRB, 501
U.S. at 198-199; Industrial Hard Chrome Ltd., 352 NLRB 298, 311 fn. 11 (2008).15
Respondent next argues the employees’ conduct was unprotected because they were represented
by the Union, and Respondent’s obligation was to bargain with the Union over the employees’ wages, not
the employees themselves. This argument rings hollow for at least two reasons. First, the employees
involved were, in effect, protesting that Respondent was not complying with the terms of the agreement
because it was paying less-senior employees in their department more than them. The wage provision in 20
the parties’ agreement establishes employees’ starting pay and any increases based on their classification
and longevity (i.e., if you worked longer you received more of the periodic increases set forth in the
agreement), meaning that a less senior employee, in the same classification, could not earn more than a
more senior employee. An employer is required to maintain the status quo of all mandatory subjects of
bargaining, including wages, until the parties either agree on a new contract or reach a good-faith impasse 25
in negotiations. See Richfield Hospitality, Inc., 368 NLRB No. 44, slip op. at 2. As already established,
Respondent failed to maintain the contractual wage rates and unilaterally implemented changes without the
Union’s consent and without providing the Union with prior notice and an opportunity to bargain.
Second, the offer Helzer made to the group of employees in the parking lot was that if they returned30
to work, the company would meet with them after work and discuss their wage concerns. In effect, Helzer
was offering to bypass the Union and deal directly with the employees about their wage concerns. As

29 In Quietflex Mfg. Co., 344 NLRB 1055 (2005), the Board set forth the following factors to determine if a work
stoppage remained protected: (1) the reason the employees have stopped working; (2) whether the work stoppage was
peaceful; (3) whether the work stoppage interfered with production, or deprived the employer access to its property;
(4) whether employees had adequate opportunity to present grievances to management; (5) whether employees were
given any warning that they must leave the premises or face discharge; (6) the duration of the work stoppage; (7)
whether employees were represented or had an established grievance procedure; (8) whether employees remained on
the premises beyond their shift; (9) whether the employees attempted to seize the employer's property; and (10) the
reason for which the employees were ultimately discharged. 344 NLRB at 1056-1057. In Atlantic Scaffolding Co.,
the Board applied Quietflex and held the work stoppage remained protected at all times, finding that: the reason for
the work stoppage, a protest over wages, was protected by Section 7; it was peaceful at all times and there was no
cognizable interference with production; there was no attempt to deny anyone access to the property, or any challenge
to the authority of the employer or contractor to control the property; the employees were never warned that they must
leave or face discharge, instead, they promptly complied with each directive they were given to move from one
location to another; and the reason advanced for the discharges likewise favors protection, as the employer did not
raise a concern about property rights in notifying the employees of their termination. The same holds true in this case,
with the exception that Hernandez threatened employees that they would be terminated if they did not return to work.
JD-78-19
24
explained below, this all occurred the day before Respondent and the Union were scheduled to have their
first bargaining session over a successor agreement.30
Based on the foregoing, I find Respondent discharged Guadalupe Ortiz, Viviana Hernandez,
Brittney Spratt, Jimmy Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle 5
Anzualdo, and Maya Keana Wright because they engaged in a protected, concerted work stoppage to
collectively protest their wage issues, in violation of Section 8(a)(1).
I also find that Respondent, through Hernandez and Helzer, violated Section 8(a)(1) with their
statements in the cafeteria, the hallway, and in the parking lot. See Accurate Wire Harness, 335 NLRB 10
1096, 1097 (2001), enfd. 86 Fed. Appx. 815 (6th Cir. 2003); Baddour, Inc., 303 NLRB 275 (1991). In the
cafeteria, Hernandez told the employees that they could leave if they did not return to work, and he told
Kitch to write down the names of the employees who left because he did not want them back in the building.
When the employees moved to the hallway, Hernandez repeated his threat of termination, stating that they
could return to work or they would be terminated. The Board held threatening employees with termination 15
for engaging in a protected work stoppage violates Section 8(a)(1). Central Valley Meat Co., 346 NLRB
1078 (2006). Hernandez later told the employees in the parking lot that they were being terminated and
had to turn in their badges because of their conduct. He and Helzer separately threatened the employees
that the police would be called if they did not leave the property. Under Board law an employer violates
Section 8(a)(1) if it threatens to call the police in response to employees’ protected activity at its facility. 20
See Meyer Tool, Inc., 366 NLRB No. 32 (2018). Winkle Bus Co., 347 NLRB 1203, 1219 (2006).

G. Surveying Employees about Observance of Independence Day Holiday
1. Factual Summary25
Article 9 of the parties’ collective-bargaining agreement, entitled “Holidays,” states that employees
will be paid for recognized holidays (New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day) as long as they work their scheduled workdays before and after the
holiday. The exceptions are if they are absent on one or more of their scheduled workdays for funeral leave, 30
jury duty, approved vacation, or documented hospitalization. The agreement further states that all
employees “required to work” on any of the holidays “shall receive time and ½ and holiday pay or shall
receive another day with pay at the company’s discretion.” (Jt. Exh. 1, pg. 6) (emphasis added).
In around late June 2018, Respondent’s supervisors/managers Mike Helzer, Paul Hernandez, Chris 35
Kitch, Clay Irish, Karen Mendoza, Marulys Cisneros, Joel Murillo, and Jose Madrigal approached Unit
employees and asked whether they wanted to observe the Independence Day holiday on July 4, or if they
wanted to work July 4 and observe the holiday on Friday, July 6, allowing them to have a three-day
weekend. (Jt. Exh. 18). Respondent surveyed several of the Unit employees, and a majority indicated they
preferred to observe the holiday on July 6. Respondent never notified or consulted with the Union on this 40
matter. Based on the survey, the employees all worked July 4 and were off July 6. There is no evidence
Respondent previously surveyed employees about changing the observance date of a holiday. (Tr. 739).
2. Allegations and Argument
45
The General Counsel alleges that in about late June 2018, Respondent, through its supervisors,
bypassed the Union and dealt directly with its employees by soliciting their preferences about moving the

30 Although Ortiz was a Union steward at the time, her authority was limited to ensuring employee safety. She was
not involved in filing grievances, or on the Union’s bargaining committee. (Tr. 266-267)(Jt. Exh. 9).
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25
observance of the Independence Day holiday to July 6, 2018.31 The criteria applied in determining whether
an employer has engaged in direct dealing are: (1) whether the employer was communicating directly with
union represented employees; (2) whether the discussion was for the purpose of establishing or changing
wages, hours, and terms and conditions of employment or undercutting the union’s role in bargaining; and
(3) whether such communication was made to the exclusion of the union. Permanente Medical Group, Inc., 5
332 NLRB 1143, 1144 (2000) (citing to Southern California Gas Co., 316 NLRB 979 (1995)).
There is no dispute that Respondent’s supervisors communicated directly with Unit employees
about the observance of the Independence Day holiday, and the Union was excluded from those
communications. With respect to the second factor, I find those communications were for the purpose of 10
changing terms and conditions of employment, namely the paid observance of the holiday. See United
Cerebral Palsy of New York City, 347 NLRB 603, 607 (2006) (paid holidays are a mandatory subject of
bargaining). See also E. I. du Pont & Co., 259 NLRB 1210, 1211 (1982) (same). Article 9 of the parties’
agreement provides three scenarios regarding a recognized holiday: (1) the employees receive the day off
with pay because they worked their scheduled work days before and after the holiday (or they fall within 15
one of the listed exceptions); (2) the employees receive the day off without pay because they did not work
their scheduled work day(s) before and/or after the holiday (or they do not fall within one of the listed
exceptions); or (3) the employees are required to work on the holiday and they receive time and ½ and
holiday pay or another day with pay at the company’s discretion. The agreement gives Respondent the
discretion to decide whether to require the employees to work the holiday, and, if so, the discretion to decide 20
the alternative paid day off. But it does not allow Respondent to survey the employees about the option of
working the holiday and having the holiday observed on another date. Those are the types of discussions
Respondent is required to have with the employees’ bargaining representative.
Additionally, even if these communications were not for the purpose of changing terms and 25
conditions of employment, I find they were for the purpose of undercutting the Union’s role in bargaining.
At the time the supervisors surveyed employees about changing the Independence Day observance date,
Respondent and the Union were meeting for contract negotiations. There were proposals to make minor
changes to the language in Article 9, but they did not relate to surveying employees or giving them the
choice about when they observe the holiday. Nonetheless, as discussed more fully below, Respondent was 30
not engaged in good-faith bargaining with the Union, and it was engaged in other violative conduct. By
bypassing the Union and talking directly to Unit employees about choosing their Independence Day holiday
observance date, Respondent effectively offered the Unit employees a new benefit that was, as stated, a
mandatory subject of bargaining. In so doing, I find Respondent was currying favor with the Unit
employees to the exclusion of the Union while negotiations were ongoing, effectively undercutting the 35
Union’s role in bargaining.
For these reasons, I find Respondent bypassed the Union and dealt directly with employees by
soliciting preferences about moving the observance of the holiday, in violation of Section 8(a)(5) and (1).
40
H. Subpoenas, Interrogations, and Use of Attorneys Retained and Compensated by Respondent
1. Factual Summary
In around October 2018, Region 14 of the Board issued subpoenas to Unit employees at the 45
Hastings facility as part of its investigation into the unfair labor practice charges at issue. These subpoenas
instructed the employees to appear and provide evidence in the form of an affidavit related to the allegations
in these charges. A cover letter explained the topics that would be discussed. (GC Exh. 7).

31 Paragraph 9 of the second consolidated complaint. There is no allegation that moving the observance of the holiday
from July 4 to July 6 constituted a unilateral change. See Champion International Corp., 339 NLRB 672, 673 (2003).
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26
One of the subpoenaed employees informed Respondent’s administrative assistant Mary Junker
that he had received the Board’s letter and subpoena requiring him to appear before a Board agent on
November 7, 2018. Junker asked the employee to bring her the documents for her to review, which the
employee did. After reviewing the documents, Junker notified Respondent’s CEO Ziegelheim and 5
Respondent’s attorney Jerry Pigsley. (Tr. 139-141).
On around October 31, 2018, Respondent retained an Omaha law firm (Kutak Rock LLP) to
represent the employees in connection with the Board subpoenas. (R. Exh. 1). The engagement letter states
the employees will be the firm’s clients, and the attorney-client relationship will exist between the firm and 10
the employees, not the firm and Respondent. Respondent agreed to pay all costs associated with that
representation, and it agreed to provide the firm a $10,000 retainer.
In separate email correspondence, one of the Kutak Rock attorneys informed Ziegelheim that the
attorneys wanted to meet with the employees who choose to be represented and suggested those meetings 15
occur offsite because it would cause less disruption to Respondent’s operations and may help facilitate
candor in the attorneys’ discussions with the employees. (R. Exh. 2). Ziegelheim ignored the suggestion
and decided to have the attorneys meet the employees at Respondent’s Hastings facility.
Respondent later posted a notice to employees, in English and Spanish, informing them that: they 20
may be contacted to speak to a Board agent regarding charges the Union filed against the company, and
that they had the right to have legal counsel, if they desired, prior to and when talking with the Board agents;
the employees were not required to report to or consult with the company regarding obtaining counsel or
talking with the Board agents; if the employees wished to speak to and/or be represented by legal counsel,
they could contact one of the following attorneys (and the Kutak Rock attorneys’ names and telephone 25
numbers were listed); the company will pay for the attorneys as a benefit to its employees; and the company
does not have an attorney-client relationship with these attorneys. (Jt. Exh. 15).

On around November 6, 2018, three Kutak Rock attorneys came to the Hastings facility to meet
with the employees. Respondent assigned the attorneys (and their Spanish-speaking interpreters) to use the 30
plant manager’s office, the production superintendent’s office, and a conference room. This area consisted
solely of those managerial offices, the conference room, the bathrooms, and Mary Junker’s desk.
In the first three hours the attorneys were there, Junker noticed that few employees were coming
up to meet with them. She then contacted operations manager Paul Hernandez and gave him a list of 35
employees who had resigned from the Union and told him to contact those employees to let them know that
the company had provided attorneys for them for their meeting with the Board agents. Hernandez took the
list, went and spoke with other supervisors who directly supervised the employees on the list, and told those
supervisors to go and talk to the employees about the attorneys. (Tr. 151-153).
40
Hernandez also spoke to several employees. He spoke to employee Steve Lorreto Catalan (in
Spanish) and told him “they” needed him in the office. Hernandez did not say who “they” were or why
they needed him to go to the office. Hernandez only said, “You need to go to the office. They want to talk
to you.” (Tr. 440-441). As instructed, Catalan went to the office and he met with one of the attorneys.
Hernandez also spoke to Aramis Hernandez-Acosta (in Spanish) at his work station. Hernandez-45
Acosta was one of the employees who had received a Board subpoena. Hernandez told Hernandez-Acosta
he had to go to the office to talk to the “company attorney,” and that he needed a company attorney to
counsel him. (Tr. 365-366). Hernandez-Acosta responded, “No, I didn’t have to go.” Hernandez replied,
“Yes, it is mandatory.” Hernandez said that he didn’t want Hernandez-Acosta to be confused or “to use a
word that he didn’t know how to use properly” when meeting with the Board agents. (Tr. 366). Hernandez 50
JD-78-19
27
then walked Hernandez-Acosta over to the area in the facility where the attorneys were located, and
Hernandez-Acosta met with one of the attorneys for about 15 to 20 minutes.
The following day, Hernandez-Acosta met with the Board agents. Upon returning to work, his
supervisor, José Madrigal, and Paul Hernandez approached him at his workstation and asked what “the
feds” had asked him. Hernandez-Acosta replied, “a bunch of dumb stuff.” Hernandez laughed and walked 5
away. (Tr. 371-372). The next day Hernandez came back and again asked Hernandez-Acosta what the
feds had asked him, and Hernandez-Acosta responded, “a bunch of stupid stuff.” Hernandez again laughed
and walked off. (Tr. 371-372).32
On around November 6, 2018, Madrigal called employee Juvencio Ramirez De la Cruz at home
and asked if had received a subpoena in a yellow envelope. De la Cruz replied that he had not. (Tr. 413). 10
Madrigal told him that if he had not, he likely would get one soon, and the company had attorneys he could
meet with if he wanted. Later that day, De la Cruz received a subpoena to meet with Board agents the
following day. The next morning, he went to work and met with one of the Kutak Rock attorneys. The
attorney he met with told him that she worked for the company and she was going to represent him (in the
meeting with the Board agents). (Tr. 407-408). 15
In addition to showing the list of employees who had resigned from the Union to Hernandez, Mary
Junker showed the list to superintendent Chris Kitch and she told him to speak to those employees in his
department about the attorneys. Kitch testified he was told the employees “were to go to a meeting and we
needed to make arrangements for them to be able to go.” (Tr. 287). Kitch then informed supervisors who 20
reported to him, including Josue Guerrero, Joel Murillo, and Karen Mendoza, to speak to the employees on
their respective line(s) about meeting with the attorneys.
Josue Guerrero testified he went and individually asked each of the employees on his line
(approximately 21-23 employees) whether they had received a letter about the Union. If they had, he told 25
them the company had attorneys available if they wanted to go speak to them. (Tr. 162-169).
Joel Murillo spoke to several of his employees about whether they had received subpoenas (which
he referred to as citations). (Tr. 507-508). He spoke to Marcial Torres-Santiago, who later told Murillo
that he had received a letter (and subpoena). Later, while Torres-Santiago was working, Murillo told him
there was “somebody” who needed to talk with him in the office. (Tr. 451). Murillo did not state who the 30
“somebody” was or what they needed to talk to Santiago about. Torres-Santiago followed Murillo’s
instructions and went to the office, and he met with one of the attorneys.
Murillo also spoke with employees Alejandro Torres and Luz Esther Ledezma. Torres showed
Murillo the subpoena he had received, and Murillo told him to go and talk with the attorney. Murillo did
not say what Torres would be talking to the attorney about. Torres followed Murillo’s instructions and35
spoke to one of the attorneys. (Tr. 507-509).

32 A day or two later, Madrigal spoke to Hernandez-Acosta when he was picking up his paycheck. Madrigal asked
Hernandez-Acosta about the Union. The record does not reflect what he specifically asked. Madrigal said the “Union
was useless.” Hernandez-Acosta replied the Union is the one who protects the civil rights of the workers. (Tr. 373).
That was the end of the conversation.
JD-78-19
28
Ledezma also informed Murillo that she had received a subpoena. Murillo told her she had to go
and talk to one of the attorneys. He did not explain why or what they would be talking about. Ledezma
followed Murillo’s instructions and went and spoke to one of the attorneys. (Tr. 520).33
2. Allegations and Analysis
5
a. Interrogation About Union and/or Board Activities
The General Counsel alleges that in early November 2018, Respondent, by Paul Hernandez, Joel
Murillo, Jose Madrigal, Karen Mendoza, and Josue Guerrero, violated Section 8(a)(1) of the Act by
interrogating employees about their Board activities and interrogating employees about their Union and/or
Board activities without providing Johnnie’s Poultry assurances.34 Specifically, the General Counsel 10
contends Respondent unlawfully questioned employees about receipt of correspondence, including
subpoenas, concerning the Union and/or Board affidavits.
An employer is generally prohibited from interrogating employees regarding their Section 7
activities. However, in Johnnie's Poultry Co., 146 NLRB at 774-775, the Board crafted narrow exceptions
to this prohibition, holding that an employer may interrogate employees where it is pertinent to either the 15
verification of a union’s claimed majority status to determine whether recognition should be extended, or
the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in
preparing the employer’s defense of the case. This latter exception has been extended to include employee
interviews which occur while a charge is being investigated by the Board and before a complaint has issued.
WXGI, Inc., 330 NLRB 695, 712 (2000), enfd. 243 F.3d 833 (4th Cir. 2001) (citing Le Bus, 324 NLRB 588 20
(1977)). In Johnnie’s Poultry, the Board held:
In allowing an employer the privilege of ascertaining the necessary facts from employees in
these given circumstances, the Board and courts have established specific safeguards designed
to minimize the coercive impact of such employer interrogation. Thus, the employer must
communicate to the employee the purpose of the questioning, assure him that no reprisal will 25
take place, and obtain his participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must not be itself coercive in
nature; and the questions must not exceed the necessities of the legitimate purpose by prying
into other union matters, eliciting information concerning an employee's subjective state of
mind, or otherwise interfering with the statutory rights of employees. When an employer 30
transgresses the boundaries of these safeguards, he loses the benefits of the privilege.
146 NLRB at 775 (footnotes omitted).

33 I credit Catalan, Hernandez-Acosta, De la Cruz, Torres-Santiago, Torres, and Ledezma. They offered candid,
straightforward, and consistent testimony based on a strong recollection of the critical events at issue, and they were
testifying against their interests by testifying against their employer. See Flexsteel Industries, 316 NLRB 745, 745
(1995) (current employee testimony contradicting statements of supervisors is “particularly reliable because those
witnesses are testifying adversely to their pecuniary interests”), affd. mem. 83 F.3d 419 (5th Cir. 1996). In contrast,
I do not credit Respondent’s witnesses regarding these statements. They offered general, self-serving denials, which
were undermined, in part, by Kitch’s testimony that he understood the employees “were to go to a meeting and we
needed to make arrangements for them to be able to go.” This indicates the meetings were not optional, and he and
the other members of management were instructed to ensure the employees meet with the attorneys. As for Madrigal,
Respondent did not call him testify, leaving the credited testimony about his statements unrefuted.
34 Subparagraph 5(e) of the second consolidated complaint. At the hearing, the General Counsel specifically limited
this subparagraph to the questioning by Respondent’s supervisors and managers of employees, and not to any
questioning by Kutak Rock attorneys of the employees. (Tr. 443-444).
.
JD-78-19
29
Regardless of whether these safeguards are given, an employer is prohibited from questioning an
employee about statements given during a Board investigation:
In defining the area of permissible inquiry, the Board has generally found coercive, and outside 5
the ambit of privilege, interrogation concerning statements or affidavits given to a Board
agent. For such questions have a pronounced inhibitory effect upon the exercise by employees
of their Section 7 rights, which includes protection in seeking vindication of those rights free
from interference, restraint, and coercion by their employer. Moreover, interrogation
concerning employee activities directed toward enforcement of Section 7 rights also interferes 10
with the Board's processes in carrying out the statutory mandate to protect such rights.
Id. (footnote omitted).
Similarly, an employer is prohibited from questioning employees about whether they have 15
received a Board subpoena. See Frank Leta Honda, 321 NLRB 482, 483, 490-91 (1996) (citing Metalite
Corp., 308 NLRB 266, 272 (1992)).
I find Respondent, through supervisors Murillo and Madrigal, violated Section 8(a)(1) when they
interrogated employees about whether they had received a Board subpoena. I make the same finding 20
regarding Josue Guerrero’s questioning of the employees on his line as to whether they had received a
letter about the Union. The Board has generally held it is unlawful for an employer to question employees
about whether they received correspondence from the union. See e.g., Collins Mining Co., 177 NLRB
221, 225 (1969), enfd. 440 F.2d 1069 (6th Cir. 1971); Montgomery Ward & Co., Inc., 93 NLRB 640, 649
(1951), enfd. 192 F.2d 160 (2d Cir. 1951). In applying the Rossmore House “totality of circumstances” 25
test, I find that a supervisor approaching subordinate employees at work, or calling them at home, for the
sole purpose of asking whether they received a Board subpoena or letter about the Union would reasonably
tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights and would
interfere with the Board’s processes in carrying out the statutory mandate to protect such rights.
30
I further find Respondent, through Hernandez and Madrigal, violated Section 8(a)(1) when they
questioned Hernandez-Acosta about the contents of his meeting with “the feds.” Questioning employees
related to statements given during a Board investigation is “inherently coercive” and violates the Act. See
Acme Bus Corp., 357 NLRB 902, 904 (2011); Wire Products Mfg. Corp., 326 NLRB 627-628 (1998), enfd.
sub nom. 210 F.3d 375 (7th Cir. 2000). See also U.S. Cosmetics Corp., 368 NLRB No. 21, slip op. at 29 35
(2019). The same is true of questioning employees about their conversations with Board agents. U.S.
Cosmetics Corp., supra; Contris Packing Co., 268 NLRB 193 (1983)).35
The General Counsel argues Respondent violated Section 8(a)(1) when supervisors failed to
provide Johnnie’s Poultry assurances prior to questioning employees about receiving correspondence from
the Board or about the Union and prior to advising them about meeting with the Kutak Rock attorneys. As 40
stated, Johnnie’s Poultry permits narrow interrogation for limited purposes and only if the employer
provides the necessary assurances. According to Respondent, supervisors questioned employees to ensure
that those who received subpoenas knew that the company was providing them with free legal
representation prior to and during their meeting with Board agents. This is not one of the limited purposes
for which Johnnie’s Poultry permits narrow interrogation. As a result, regardless of whether the assurances 45
were given—and there is no dispute they were not—the questioning was impermissible.

35 The General Counsel presented no evidence regarding supervisor Karen Mendoza interrogating employees about
their Board activities. As a result, I recommend dismissing this allegation.
JD-78-19
30
That being said, if the questioning at issue was found to be for a permissible purpose, it would have
violated Section 8(a)(1) because the supervisors and managers involved failed to provide the necessary
assurances prior to questioning the employees.
Based on the foregoing, I find Respondent, through its supervisors, violated Section 8(a)(1) by
unlawfully interrogating its employees. 5
b. Use of Company-Provided Attorneys
The General Counsel also alleges that in November 2018, Respondent violated Section 8(a)(1) of
the Act by requiring employees to meet with and/or use attorneys retained and compensated by Respondent
prior to and during their meetings with Board agents, thereby interfering with the Board’s processes.36 10
It is a violation of Section 8(a)(1) for an employer, in the context of a Board investigation, to offer
to assist a nonsupervisory employee in obtaining legal representation, or to offer to provide such legal
representation at no cost to the employee. KFMB Stations, 349 NLRB 373 (2007); S.E. Nichols, Inc., 284
NLRB 556, 580-582 (1987), enfd. in relevant part 862 F.2d 952 (2d Cir. 1988), cert. denied 490 U.S. 1108 15
(1989); Florida Steel Corp., 233 NLRB 491, 494 (1977), enf. denied 587 F.2d 735 (5th Cir. 1979).
In Florida Steel, supra, the employer distributed a letter during an unfair labor practice investigation
advising employees that they had a right to consult with counsel before talking to the Board agents and the
company would assist employees in obtaining counsel for those who so desired. The Board adopted the 20
judge’s finding that the employer’s offer was “a patent attempt to obstruct the investigations of the Board
by discouraging employees from supplying information to Board agents.” 233 NLRB at 494.
In S. E. Nichols, supra, the employer’s agent informed employees that Board agents would be
visiting the facility and might want to interview them. He told the employees that “if [they] needed any 25
protection he would get his lawyer to sit in on the meeting.” The employer’s agent also told the employees
they could see the company attorney if they needed help in connection with the Board agents asking them
to provide statements. The Board held:
Essentially, telling employees that they might need protection in an action against the
Respondent would tend to dissuade them from cooperating with the Board. Secondly, here the 30
Respondent did not recommend obtaining independent counsel but offered only its own
attorney, thus, in the judge's words, “temptingly proposing a serious conflict of interests.”
284 NLRB at 559 fn. 9.
In KFMB Stations, supra, the employer offered an employee who had received a Board subpoena 35
the services of its attorney. In that case, a supervisor told the employee to come to work early one day and
meet with the company attorney. The employee met with the attorney in the employer’s conference room,
and the attorney stated he was representing others who had received subpoenas, and the employer was
making him available to the employee if he wanted representation during the Board’s investigation. The
attorney also asked the employee why he thought he had been subpoenaed. The Board found these 40
statements unlawful.

36 Paragraph 5(f) of the second consolidated complaint.
JD-78-19
31
Here, Respondent did more than offer to provide employees with free legal representation while
meeting with Board agents--it required employees to meet with and use the attorneys.37 Hernandez-Acosta,
Torres-Santiago, Torres and Ledezma each credibly confirmed this.38
I find Respondent violated Section 8(a)(1) by requiring employees to meet with and/or use
attorneys retained and compensated by Respondent prior to and during their meetings with Board agents, 5
thereby interfering with the Board’s processes.
c. Hernandez’s Statements
The General Counsel also alleges that on about November 6, 2018, Respondent, by Paul
Hernandez, violated Section 8(a)(1) of the Act when he told employees that they were required to use
Respondent’s paid attorneys when meeting with the Board’s agents, in part, because Respondent did not10
want employees speaking to the Board agents about matters they should not be talking about.39 These
allegations relate to Hernandez’s statements to Hernandez-Acosta in which he told Hernandez-Acosta he
was required--or that it was mandatory--to go to the office to talk to the “company attorney,” and that he
needed a company attorney to counsel him when he met with the Board agents so that he would not be
confused or use a word that he didn’t know how to use properly. Hernandez then went so far as to escort 15
Hernandez-Acosta over to the area where the attorneys were located to ensure he met with one of the
attorneys prior to going and meeting with the Board agents to give his affidavit.
An employer who advises an employee what to say or not say to a Board agent violates Section
8(a)(1) of the Act because it creates “a serious impediment to the Board’s processes [and] has a natural
tendency to inhibit an employee in resorting to or cooperating with the Board in the protection or 20
clarification of [Section 7] rights.” See A&P Import Co., 154 NLRB 938, 945 (1965). See also Certain-
Teed Products Corp., 147 NLRB 1517 (1964). Although Hernandez did not specifically tell Hernandez-
Acosta what to say or not say when meeting with the Board agent, he told Hernandez-Acosta that he needed
the company attorney so he would not get confused or say something wrong when meeting with the Board
agent. I find that telling employees they cannot be trusted to speak to a Board agent without a company-25
provided attorney would reasonably inhibit employees from resorting to the Board for the protection of
their Section 7 rights, and that Hernandez’s statements to Hernandez-Acosta violated Section 8(a)(1).

37 In its post-hearing brief, Respondent relies on the Fifth Circuit’s decision denying enforcement of the Board’s order
in Florida Steel. The Court of Appeals held the letter at issue neither required nor compelled any employees to report
to or consult with the company regarding the obtaining of counsel, made it clear that any action employees took with
respect to obtaining counsel or talking to a Board agent was entirely optional with them, and offered assistance without
regard to the positions employees took with respect to the union or talking with the Board agent. Florida Steel Corp.
v. NLRB, 587 F.2d 735, 752-753 (5th Cir. 1979). As stated, this case is distinguishable because Respondent required
that employees meet with the attorneys prior to and/or while meeting with the Board agents.
38 Respondent argues that, unlike in S.E Nichols or KRMB Stations, it provided employees with independent legal
representation, as opposed to a company attorney. I reject this argument. When Paul Hernandez met with Aramis
Hernandez-Acosta, he referred to the Kutak Rock attorneys as “company attorneys.” When Juvencio Ramirez de la
Cruz met with one of the Kutak Rock attorneys, she informed him she “worked for the company” and was going to
represent him. Additionally, the Kutak Rock attorneys met with the employees at Respondent’s facility, in the area
where the managers and administrative staff are located, and in the offices of the plant manager and the production
superintendent. These factors reasonably would create the impression among employees that the Kutak Rock
attorneys were working for or affiliated with Respondent.
39 Subparagraph 5(g) of the second consolidated complaint.
JD-78-19
32
I. Bargaining Over Successor Collective-Bargaining Agreement, Declaration of Impasse, and
Implementation of Last, Best, and Final Offer
1. Factual Summary
5
On November 6, 2017, the Union sent Respondent a letter requesting dates for the parties to meet
to commence negotiations over a successor agreement. As previously discussed, the Union included a
request for information about the Unit employees to use for those negotiations. The Union received no
response to that request, or its subsequent requests in December 2017 and January 2018. Finally, on January
17, 2018, Respondent’s attorney Jerry Pigsley notified Union’s attorney Eric Zarate that the Union should 10
pick dates it was available for bargaining. On January 24, 2018, Zarate emailed Pigsley, stating that
assuming the Union received the requested information “in the near future,” the Union tentatively planned
to begin negotiations on February 20, 2018. Pigsley did not respond. On February 12, 2018, Zarate sent
Pigsley a letter noting the Union’s disappointment with Respondent’s failure to respond. On February 19,
2018, Pigsley emailed Zarate, proposing 10 partial days (March 14, 16, 19, 21, 22, 23, and 26) and 1 full 15
day (March 30) that Respondent was available for bargaining, and he asked Zarate to let him know what
date worked best to commence negotiations. Pigsley also stated Respondent “will seek to provide the
requested information [within] the next 30 days.” (Jt. Exh. 3, p. 8). On February 21, Zarate emailed Pigsley
seeking confirmation that Respondent was available for negotiations on all the dates Pigsley listed in his
February 19 email. Pigsely responded his client was not and suggested the Union pick one date that works 20
best for it. He added that, “Hopefully, by the chosen date I will have some of the information your client
has requested.” (Jt. Exh. 3, p. 15). On February 22, Zarate emailed Pigsley stating that while he understood
Respondent may not be able to meet on each of the proposed dates, the Union preferred more than one
scheduled session because, as in the past, negotiations would require multiple sessions. Zarate proposed
having the parties meet briefly on March 22 to exchange proposals and then meet again on March 26-28 25
for actual negotiations. On February 28, Pigsley emailed Zarate back, stating that he had not heard back
from his client. As of March 6, 2018, Pigsley had not responded about meeting on March 22, and Zarate
sent an email asking for an update. Zarate asked if the parties could, at a minimum, meet on March 22 to
exchange proposals, and whether Respondent could provide the Union with any portion of the requested
information prior to March 21, noting that four months had passed since the Union’s initial request. Pigsley 30
responded to Zarate, agreeing to meet on March 22. Pigsley also stated he had no update on any other
proposed dates or the production of the requested information, but he stated he would seek to have some of
the information provided ahead of the March 22 session. (Jt. Exh. 3, p. 13).
The parties met on March 22, 2018, at the Union hall in Grand Island, Nebraska.40 The Union’s 35
multi-person negotiating team was led by Union president Mike Marty. Pigsley attended alone for
Respondent. At this session, the Union provided Respondent with its initial contract proposal. (Jt. Exh. 4).
The Union’s proposal was 13 pages and sought various changes to the existing agreement. The Union’s
proposals did not include economics because, in part, it needed the requested information to formulate its
proposals on those topics. (Tr. 663-664). After the Union explained its proposal, Pigsley asked clarifying 40
questions, which Marty answered. (Tr. 661).
Although the plan was for the parties to exchange initial proposals, Respondent did not submit a
proposal. Respondent also did not provide the Union with any of the information it had requested. Marty
asked Pigsley about the information, and Pigsley replied the company was working on it. (Tr. 663). Marty 45
then asked Pigsley about future bargaining dates. Pigsley offered April 25, which was the same date as the
arbitration of the Union’s grievance over Respondent’s decision to bar Union representatives from
accessing the Hastings facility. Marty reminded Pigsley of the conflict and stated he could not see how that
date would work. Pigsley did not offer any other dates. (Tr. 662).

40 All negotiation sessions occurred at the Union hall in Grand Island, Nebraska.
JD-78-19
33
On March 28, Zarate and Pigsley spoke on the telephone and Zarate then sent an email
memorializing their conversation. In that email, Zarate stated the Union was requesting another negotiation
session and was proposing any time prior to April 22, and that Pigsley had agreed to check with his client
concerning its availability and get back to Zarate. Zarate also stated Pigsley agreed to check on the status 5
of the Union’s information request. Zarate concluded the email by stating the Union was prepared to file
an unfair labor practice charge if Respondent failed to provide the requested information or schedule
additional negotiation dates by the end of the day. Later that day, Pigsely emailed Zarate stating Respondent
was available to meet with the Union for negotiations on April 25, and, if that date did not work, May 9.
Pigsley also stated Respondent was gathering the requested information, but he had not received it yet for 10
transmittal to the Union. (Jt. Exh. 3, pp. 17-18). On March 29, the Union filed its initial unfair labor
practice charge in Case 14-CA-217400, alleging Respondent failed and refused to bargain in good faith
with the Union and failed to furnish the Union with requested information.
The parties scheduled their second bargaining session for May 9, 2018. On May 8, Pigsley emailed 15
Zarate stating his client needed to postpone that session because Ziegelheim would not be back in town in
time for the negotiations. Pigsley proposed meeting on May 15. The Union reluctantly agreed, and Zarate
emailed Pigsley about a 10:30 a.m. start time. Pigsley did not respond about the start time until May 14.
(Jt. Exh. 3, pp. 19-21).
20
The parties met for negotiations on May 15, 2018. Pigsley was Respondent’s sole representative at
this session. Once again, Respondent failed to provide the Union with any of the information it had
requested for the last seven months. At this meeting, Pigsley provided the Union with Respondent’s initial
contract proposal. (Jt. Exh. 5). Respondent’s proposal sought to change the following provisions under the
parties’ expired agreement: (1) modify Article 1 (Recognition) to remove maintenance employees from the25
Unit; (2) completely eliminate Article 2 (Maintenance of Membership – Dues Checkoff); (3) modify Article
4 (Grievance Procedure) to eliminate steps 3 and 4 in the grievance procedure;41 (4) modify Article 7
(Safety) to eliminate the safety committee monthly inspection;42 (5) modify Article 9 (Holidays) to state
that if a holiday falls on a Saturday or Sunday, the prior Friday or following Monday shall not be observed
as the holiday; (6) modify Article 12 (Rates of Pay Provision) to provide for $.15/hour increases after every 30
six months, and that the starting wage rates be $9.00/hour for Group 1 and $9.50/hour for Group 2 (there
was no proposal regarding any of the other groups or classifications); (7) completely eliminate Article 21
(Plant Visitation) relating to access by Union representatives;43 and (8) modify Article 24 (Term of
Agreement) to be left open for negotiation. The record does not reflect whether Pigsley provided the Union

41 Article 4 sets forth a multi-step grievance procedure. The first step is for the employee and a Union steward to meet
with the employee’s immediate supervisor within 5 days of knowledge of the incident at issue. If the matter is not
resolved, the second step is for the steward or other designated Union representative to submit a written grievance
within 5 days of receipt of the employer’s answer at the first step and present that to the plant manager. The parties
will meet and the plant manager or his designee shall issue an answer to the grievance, in writing, within 5 days. If
the matter remains unresolved, the third step is for the Union grievance committee to submit a written grievance within
5 days of the employer’s answer at the second step to the designated human resource representative. The parties meet
over the grievance and the human resource representative will issue a written answer within 5 days. If the matter
remains unresolved, the fourth step is for the Union’s business agent or designated representative to submit a written
grievance within 5 days of the employer’s answer at the third step to the designated human resourced representative,
and that representative will issue a written answer within 5 days. The final step is to submit the grievance to arbitration
for a final and binding decision. (Jt. Exh. 1, p. 4).
42 Article 7 establishes a safety inspection committee (the Union business agent and one Unit employee) that visually
inspects the facility for safety issues on a monthly basis. The inspection is not to exceed 2 hours. (Jt. Exh. 1, p. 5).
43 Article 21 allows the Union the opportunity to meet with new employees during orientation to discuss the Union’s
role and solicit signatures on membership application and dues authorization forms. It also affords the Union the
right to visit the plant to investigate grievances or to review operations. (Jt. Exh. 1, p. 11).
JD-78-19
34
with Respondent’s rationale for these changes, and the record does not reflect what, if any, questions the
Union asked about the proposed changes. Pigsley informed the Union he still had no response to the
Union’s March 22 proposal. The session ended without scheduling any future bargaining sessions.
On June 20, 2018, the Region approved the parties’ bilateral informal settlement in Case 14-CA-5
217400, which required Respondent to: (1) provide the Union with the information it had been requesting
since November 6, 2017; and (2) commit to a bargaining schedule of no less than 24 hours per month for
at least six hours per session, or in the alternative, on another schedule to which the Union agreed. The
settlement also required Respondent to bargain in good faith with the Union over wages, hours, and other
terms and conditions of employment until a full agreement or bona fide impasse was reached. (Jt. Exh. 11). 10
On June 26, Zarate renewed the Unions’ request for bargaining, stating the Union was available to
meet throughout July and August. He identified nine days in July and August that the Union was
unavailable for bargaining. (Jt. Exh. 3, pp. 27-28). On July 5, Pigsley emailed Zarate that Respondent was
available for negotiations on July 13, 20, 30, and 31, from 10 a.m. to 4 p.m. (Jt. Exh. 3, p. 25). Zarate 15
responded the Union was available on July 13, 30, and 31, and he proposed July 17 or 27 as an alternative
for July 20. He also reminded Pigsley about the requested information. (Jt. Exh. 3, pp. 24-25). Pigsley
agreed to meet on July 13, 27, 30, and 31.
The parties met as scheduled for negotiations on July 13, 2018. However, Respondent’s 20
administrative assistant Mary Junker replaced Pigsley as Respondent’s sole bargaining representative.
Before negotiations began, Junker told the Union representatives, “I don’t know why I am here. I do not
know why they sent me. I can’t make any decisions.” (Tr. 668). She later advised the Union she would
have to bring any proposal back to Ziegelheim and Koenig, as they were the only two with authority to
accept, reject, or counter a proposal. (Tr. 66-67). Marty then went through the Union’s responses to 25
Respondent’s May 15 proposal. Junker told the Union she would need to get back to them regarding the
Union’s March 22 proposal, because she still had not received any answers from Ziegelheim and Koenig.
As stated, on July 13, Pigsley provided the Union with partial information in response to its
November 6, 2017 information request. The response included information for approximately 15 of the 30
approximately 250-300 Unit employees. (Jt. Exh. 19). On July 16, Zarate emailed Pigsley explaining how
the response was substantially deficient and demonstrated a lack of good faith concerning Respondent’s
compliance with the parties’ informal Board settlement. (Jt. Exh. 20).
On July 16, Zarate notified Respondent the Union was no longer available to meet on July 30 and 35
31 because of a last-minute scheduling conflict. Zarate confirmed the Union still planned to meet for
negotiations on July 27. He also requested dates Respondent was available for bargaining in August, noting
the Union was unavailable August 6-10, and 16. (Jt. Exh. 3, p. 24).
The parties met for negotiations on July 27, 2018. Marty again led the Union’s multi-person 40
bargaining committee. At this session, Mary Junker was accompanied by Respondent’s operations manager
Paul Hernandez. According to Junker, Respondent sent Hernandez because the Union had complained the
company was not bargaining in good faith by just sending her. Hernandez’s role was simply to observe.
At this session, Junker told the Union that Respondent denied all of the Union’s March 22 proposal, without
offering any explanation or counterproposal. (Tr. 74). The Union then caucused and prepared a modified 45
proposal. (Tr. 671-673). The parties reconvened and the Union provided Junker and Hernandez with the
modified proposal. (Jt. Exh. 6). The Union made several revisions to its initial proposal, including
proposing to withdraw certain items in exchange for Respondent withdrawing certain of its proposals.
Junker had no authority to respond to the Union’s proposal on her own, so she attempted to call Ziegelheim
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and Koenig. Ziegelheim was traveling at the time, and he told Junker to bring the proposals back with her,
and they would discuss them when he returned. (Tr. 78-79). That was the end of the meeting.44
On August 10, Zarate emailed Pigsley again requesting bargaining dates in August, and the
remaining information in response to the Union’s requests. Zarate referred to his earlier correspondence 5
(which he attached) explaining how Respondent’s July 13 production in response to the Union’s
information request was substantially deficient. (Jt. Exh. 3, p. 23). Later that day, Pigsley replied that
Respondent was available for bargaining on August 17, 23, 28, and 30, from 10 a.m. to 4 p.m. Pigsley said
nothing about the information request. On August 13, Zarate emailed Pigsley that the Union was available
each of those dates. He also asked whether Respondent would be providing any additional information 10
responsive to the Union’s request. (Jt. Exh. 3, p. 23). Pigsley did not respond.
The parties met for negotiations on August 17, 2018. Marty again led the Union’s multi-person
bargaining committee. Junker was Respondent’s sole representative. She explained that Respondent had
accepted four items from the Union’s March 22 proposal. Specifically, Respondent accepted proposals 2, 15
3, 18, and 19. (Tr. 79-80; 681-682) (Jt. Exh. 4, p. 3). Proposals 2 and 3 relate to Articles 3 (management
rights) and 17 (seniority) of the parties’ agreement. Article 3 states, “Employees must pass probation to
enjoy benefits.” (Jt. Exh. 1, p. 3). Article 17 defines the probationary period as 60 days. The Union
proposed moving the above language from Article 3 to Article 17 and adding the word “health” in front of
“benefits” to clarify those were the benefits at issue. (Tr. 80; 682-683). Union proposals 18 and 19 both20
involved revising the language in Article 15 (non-discrimination). (Jt. Exh. 1 p. 15) (Jt. Exh. 4, p. 7).
Proposal 18 sought to delete the current language and proposal 19 sought to replace the old language with
an updated version that included additional protected classes. (Tr. 80; 681-682) (Jt. Exh. 4, p. 7). Junker
had no response to the Union’s July 27 counterproposal because she had not been able to discuss it with
Ziegelheim and Koenig. (Tr. 673-674).25
The parties next met for negotiations on August 22, 2018. Junker again appeared as Respondent’s
sole representative. She informed the Union she still had no response to the Union’s July 27 proposal
because Ziegelheim and Koenig were unavailable. (Tr. 673-674).
The parties were next scheduled to meet for negotiations on August 28. The day before, Pigsley
emailed Zarate cancelling the session, stating Respondent’s “negotiating team” was unavailable. Zarate 30
emailed back asking for Respondent’s availability in September and inquired if Respondent would be
available for 5 sessions rather than 4 to make up for cancelling the August 28 session. (Jt. Exh. 3, p. 29).
Pigsley did not respond.
The parties next met for negotiations on August 30, 2018. At this session, Junker informed the 35
Union that Respondent rejected its July 27 counterproposal. She offered no explanation for the rejection,
and she made no counterproposal. That was the end of the bargaining session. (Tr. 81-82; 675).
The parties next met on September 12, 2018. At this session, the Union made another
counterproposal to Respondent, in which it offered to withdraw two of its proposals in exchange for 40
Respondent withdrawing two of its proposals. (Jt. Exh. 6, p. 3). Again, Junker told the Union
representatives that she needed to show the counterproposal to Ziegelheim and Koenig, but she did not
attempt to contact either at the time. That effectively ended of the session.
The parties were scheduled to meet for negotiations on September 14, 2018, but that meeting did 45
not occur. Later that day, Pigsley emailed Zarate stating Respondent needed to cancel their scheduled

44 As of this meeting, the only agreement the parties reached was over changing the corporate name from Nebraska
Prime Group to Noah’s Ark Processors, LLC d/b/a WR Reserve. (Tr. 74)(Jt. Exh. 25).
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session on September 19 because Ziegelheim and Koenig were unavailable because of the Jewish holidays
they observe. Pigsley added that it was his understanding the Union had cancelled the negotiations that day
(September 14) and their scheduled negotiations for September 28. On September 17, 2018, Zarate emailed
Pigsley disputing his claims that the Union cancelled the September 14 or 28 sessions. Zarate’s stated that
prior to the September 14 session, Junker told the Union that Ziegelheim and Koenig were out of the country 5
and unavailable to respond to matters affecting negotiations. He also stated the parties had no negotiations
scheduled for September 28. Zarate questioned the cancellation of the September 19 session, noting that
neither Ziegelheim nor Koenig had been present at any prior negotiation session. Zarate added that the
cancellation of the session only confirmed the Union’s claims that Junker lacked any real authority to
negotiate with the Union. He concluded by requesting Respondent’s availability for negotiations for the 10
remainder of September and October. (Jt. Exh. 3, p. 30). Almost three weeks later, on October 5, Pigsley
responded to Zarate’s email, stating the company was available for negotiations on October 11, 18, 25, and
31, from 10 a.m. to 4 p.m. That same day, Zarate responded confirming those dates. (Jt. Exh. 3, p. 32).
The parties next met for negotiations on October 11, 2018. At this session, Junker informed the 15
Union that Respondent rejected the Union’s September 12 counterproposal. (Tr. 84). She provided no
explanation for the rejection, and she offered no counterproposal. (Tr. 85; 674-678).
The parties met for bargaining on October 18 and 31, November 13, and December 7 and 19, 2018.
At each of these sessions the Union prepared a modified counterproposal which it presented to Junker. 20
Consistent with the Union’s earlier counterproposals, it offered to withdraw certain items from its initial
proposal in exchange for Respondent withdrawing items from its initial proposal. Each time, Junker
informed the Union she would need to take the proposal back to the company’s principles for them to
review and that she would report back with an answer. Each time she reported back with the same answer—
proposal rejected. She rejected each of the Union’s proposals and counterproposals without any 25
explanation, and without offering any counterproposals. (Tr. 86; 674-678).
On January 2, 2019, the parties met again. At this session, Junker presented the Union with what
she termed was Respondent’s last, best, and final contract proposal. (Jt. Exh. 7). The proposal was identical
to Respondent’s May 15 initial proposal, except there was no reference at all to Article 12 or wages30
generally, and the term of the agreement was set for one year (January 1, 2019 to December 31, 2019).
Junker did not provide any additional information about Respondent’s last, best, and final proposal, and
she did not provide a deadline for the Union’s response to the proposal. Marty informed Junker that the
Union would need an opportunity to review the proposal.45
35
Thereafter, Marty contacted Junker and requested a meeting to go over certain questions he had
regarding the Respondent’s last, best, and final offer. Marty and Junker met on January 25, 2019. At this
meeting, Marty informed Junker that the company’s proposal did not include the tentative agreements the
parties reached on August 17. Junker responded that those were included in Respondent’s offer; they just
were not addressed in writing. Marty also informed Junker that the company’s proposal did not address 40
wages. Junker responded, “Well, we already did wage increases.” (Tr. 685-686). Marty also asked Junker
about the term of the agreement, stating the parties had never discussed that or addressed it in their
proposals. Junker had no response. (Tr. 686-687). The meeting ended. Junker provided no deadline for
the Union to respond to Respondent’s last, best, and final proposal. She also did not mention impasse or

45 At each of the bargaining sessions the parties had a sign-in/sign-out sheet reflecting who attended the session. (Jt.
Exh. 9). Some of the sheets reflect when the session ended, and if the parties agreed to end their session early. The
sessions typically began at around 10 a.m. and lasted an hour or less. (Tr. 676). Marty testified that during these
sessions most of that time was spent in casual conversation because Junker was unable to respond to the Union without
first speaking to Ziegelheim or Koenig, which she frequently was unable to do. (Tr. 676-678).
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provide a timeline for implementation of that proposal. Marty did not request any further meetings and
gave no indication about the Union’s next course of action. (Tr. 709-710).
As previously stated, when Respondent denied Union agents access to the Hastings facility starting
late June 2017, the Union filed a grievance that eventually went to arbitration. The Union prevailed. 5
Respondent, however, continued to deny the Union access. The Union then sought enforcement of the
arbitration decision in federal district court. On January 28, 2019, the federal district court issued an order
enforcing the arbitration award. On January 30, 2019, the Union sent two agents to the Hastings facility.
Respondent denied them access. (Tr. 690-693).
10
That same day, Pigsley emailed Zarate stating the company had presented the Union with its last,
best, and final proposal on January 2, 2019, which the Union did not accept. He went on to state the parties
met on January 25, 2019, at the Union’s request, during which the Union again did not accept the company’s
proposal. Based on these factors, Pigsley declared the parties were at an impasse and Respondent was
implementing its last, best, and final proposal. (Jt. Exh. 8). 15
As of January 30, 2019, Respondent implemented its last, best, and final offer, in its entirety,
including unilaterally removing the maintenance employees from the Unit, eliminating the maintenance of
membership—dues checkoff provision, striking steps 3 and 4 of the grievance procedure, confirming the
how weekend holidays would be observed, removing the monthly safety committee inspection, confirming20
the new wage rates/system (which already had been unilaterally implemented in August 2018), eliminating
the provision allowing Union representatives to visit the plant, and setting the term of the agreement for
one year. The Union, through its counsel, emailed Respondent seeking rescission of its implemented last,
best, and final offer. Respondent refused to rescind. (Tr. 713-714).
25
2. Allegations and Analysis
a. Overall Bad-Faith Bargaining
The General Counsel alleges that from March 2018, and continuing, Respondent, by its overall 30
conduct, violated Section 8(a)(5) and (1) of the Act when it failed or refused to bargain in good faith with
the Union over a successor agreement.46

46 Paragraph 11 of the second consolidated complaint. Subparagraph 11(b) specifically alleges Respondent
demonstrated an overall lack of good faith when it: (1) failed to provide the Union with presumptively relevant
information requested since November 6, 2017 (referring to subparagraph 8(a) of the second consolidated complaint);
(2) failed to cloak its bargaining representatives with the authority to enter into binding agreements; (3) cancelled
bargaining sessions at the last moment without explanation; (4) failed to make bargaining proposals; (5) failed to
provide explanations for rejection of the Union’s bargaining counterproposals; (6) denigrated the Union in the eyes of
Unit employees by statements made at a safety meeting in March 2018, by soliciting employees to resign from the
Union and cease paying union dues in June and July 2018, by providing pre-printed forms to resign from the Union
and revoke their dues checkoff authorizations from January through July 2018, by interrogating employees about their
support for the Union in June and July 2018, and by coercing employees into signing pre-printed non-disclosure of
confidential employment information forms (referring to subparagraphs 5(a), 5(c)(1), 5(c)(2), 5(c)(3), and 5(c)(4) of
the second consolidated complaint); (7) directly dealt with employees about mandatory terms of conditions of
employment (referring to paragraph 9 of the second consolidated complaint); (8) unilaterally changed employees’
terms and conditions of employment, including wages and dues-checkoff revocations, without notice and bargaining
with the Union and changed the terms of the collective-bargaining agreement without the Union’s consent (referring
to paragraph 10 of the second consolidated complaint); and (9) implemented its last best and final offer on January
30, 2019, before reaching a valid impasse (referring to paragraph 13 of the second consolidated complaint). (GC
Exhs. 17 and 18). Allegations 1, 6, 7, 8, 9 are addressed above.
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Section 8 (d) of the Act imposes “a mutual obligation on the [parties] to meet at reasonable times
and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or
the negotiation of an agreement … but such obligation does not compel either party to agree to a proposal
or require the making of a concession…” That being said, the obligation or duty to bargain in good faith
requires more than just going through the motions; it requires that parties approach bargaining with a 5
“serious intent to adjust differences and to reach an acceptable common ground.” NLRB v. Truitt Mfg, 351
U.S. at 155. See also Endo Laboratories, Inc., 239 NLRB 1074, 1075 (1978) (recognizing the “the kind of
‘horsetrading’ or ‘give-and-take’ that characterizes good-faith bargaining”). “[M]ere pretense at
negotiations with a completely closed mind and without a spirit of cooperation does not satisfy the
requirements of the Act.” Mid-Continent Concrete, 336 NLRB 258, 259 (2001), enfd. sub nom. 308 F.3d 10
859 (8th Cir. 2002) (quoting NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir. 1965)). See also
Regency Service Carts, 345 NLRB 671 (2005); Public Service Co. of Oklahoma, 334 NLRB 487 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003).
In determining whether an employer has violated its statutory duty to bargain in good faith, the
Board examines the employer’s overall conduct, both at and away from the bargaining table. Public Service 15
Co. of Oklahoma, supra at 487; Mid-Continent Concrete, supra at 260-261. The Board considers several
factors, including unreasonable bargaining demands, failure to provide relevant information, unilateral
changes in mandatory subjects of bargaining, efforts to bypass the union and deal directly with the
employees, failure to designate an agent with sufficient bargaining authority, withdrawal of already agreed-
upon provisions, and arbitrarily scheduling/cancelling bargaining sessions. Mid-Continent Concrete, supra 20
at 259-260; Hartz Mountain Corp., 295 NLRB 418, 426 (1989); Atlanta Hilton & Tower, 271 NLRB 1600,
1603 (1984). A party is not required to engage in each of these activities to be found to have violated the
Act. Altorfer Machinery Co., 332 NLRB 130, 148 (2000). Rather, the Board looks at the party’s overall
conduct to determine if it demonstrates a sincere intent to reach agreement. Id. at 130 fn. 2.
As previously discussed, I find Respondent failed to bargain in good faith with the Union away 25
from the table by repeatedly failing or refusing to provide the Union with presumptively relevant
information that was requested for the purpose of bargaining a successor agreement, unilaterally
implementing changes to contractual wage rates and the dues-checkoff procedures without the Union’s
consent and without providing the Union with notice or an opportunity to bargain, and bypassing the Union
and dealing directly with Unit employees regarding the observance of the Independence Day holiday. 30
Respondent also coerced employees into signing the pre-printed non-disclosure forms which included the
same type of information that the Union had been requesting in order to negotiate a successor agreement.
Respondent’s conduct at the table was no better. First, it failed to designate a negotiator who had
any real authority. The duty to bargain requires that a party designate a negotiator with real authority to 35
carry on meaningful bargaining regarding fundamental issues. Wycoff Steel, 303 NLRB 517, 525 (1991).
The negotiator need not have final authority to enter into an agreement, but the negotiator cannot be so
limited in power and knowledge that it hinders the progress of negotiations. Id. Consequently, the degree
of authority, or lack thereof, conferred on the negotiator is a factor considered in determining whether the
party bargained in good faith. Id. (citing Lloyd A. Fry Roofing Co. v. NLRB, 216 F.2d 273 (9th Cir. 1954)).40
There is no dispute that Junker lacked the authority to independently make, reject, or agree to any
proposal. She was little more than a conduit of information between Ziegelheim and Koenig and the
Union’s negotiating committee. Yet, even in that role Junker was limited. She was either unable or
unwilling to contact Ziegelheim or Koenig when the parties met for negotiations to get the necessary
information or responses to move negotiations along. Junker’s lack of authority and knowledge meant the 45
bargaining sessions were short, usually lasting less than an hour, and unproductive, with most of the time
spent in casual conversation and little-to-no discussion on the issues.
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Second, Respondent delayed to scheduling bargaining sessions or selected dates for which there
was a known conflict. The Board has held dilatory tactics, such as delaying the scheduling, limiting, or
cancelling of bargaining sessions, is evidence of bad faith. See e.g., Regency Service Carts, Inc., supra at
673; Mid-Continent Concrete, supra at 260-261; and Lower Bucks Cooling & Heating, 316 NLRB 16, 22
(1995). As outlined, the Union sent its reopener letter on November 6, 2017. Respondent did not agree to 5
meet with the Union until March 22, 2018. At the end of that March 22 session, Respondent offered a
single date for the parties’ next bargaining session--the date of the arbitration over the Union’s access
grievance. When advised of the conflict, Respondent refused to provide any alternate dates prior to the
date of the arbitration. Thereafter, there were numerous instances outlined above in which Respondent
delayed in responding to the Union’s efforts at scheduling future bargaining, at times waiting weeks to 10
confirm its availability.
Respondent also cancelled multiple bargaining sessions (May 9, August 28, September 14, and
September 19), often on short notice, because Ziegelheim or Koenig were unavailable. But Ziegelheim and
Koenig were never present for negotiations. Junker was Respondent’s sole bargaining representative from
June 2018 forward, and there were bargaining sessions when she could not or did not get in contact with 15
Ziegelheim and Koenig. Respondent failed to explain why, on these four dates, the unavailability of
Ziegelheim and Koenig required the sudden cancellation of scheduled bargaining sessions.
Third, Respondent failed to submit counterproposals and provide explanations for its rejection of
the Union’s counterproposals. The lack of exchange of proposals or counterproposals is a factor the Board
considers in determining whether a party is bargaining in good faith. See generally Mid-Continent 20
Concrete, supra at 260; Bryant & Stratton Business Institute, 321 NLRB 1007, 1042 (1996), enfd. 140 F.3d
169 (2nd Cir. 1998); and MRA Associates, Inc., 245 NLRB 676, 677 (1979). Respondent made two
proposals--its initial May 15 proposal and its January 2 last, best, and final proposal--which are virtually
identical. The Union submitted 8 proposals or counterproposals. The Union made multiple offers to
withdraw or modify its proposals in exchange for Respondent doing the same. However, Respondent 25
summarily rejected those proposals, without explanation. It never offered to modify or eliminate any of its
own proposals to reach a compromise. A party demonstrates an overall lack of good faith when, as here, it
does not budge from its initial bargaining position(s), fails to explain its positions, and refuses to make any
effort to compromise to reach common ground on key issues. Altofer Machinery Co., supra at 150; John
Asuaga's Nugget, 298 NLRB 524, 527 (1990), enfd. in pertinent part 968 F.2d 991 (9th Cir. 1992). See also 30
Mid-Continent Concrete, supra.
Based on these factors, as well as the factors discussed below regarding the declaration of impasse
and implementation of the last, best, and final offer, I find Respondent violated Section 8(a)(5) and (1)
when it failed or refused to bargain in good faith with the Union over a successor agreement.47

47 Respondent’s proposals sought to eliminate dues-checkoff, terminate the monthly safety committee inspection
requirement (which allowed the Union representative to visit the facility to visually inspect for safety issues), and end
the Union’s right to visit the facility to investigate grievances, review operations, and meet with new employees during
their orientation to discuss joining the Union. These proposals are not per se unlawful, see generally, Frontier Hotel
& Casino, 323 NLRB 815, 818 (1997) (access), enfd. in relevant part by 118 F.3d 795 (D.C. Cir. 1997), Logemann
Bros. Co., 298 NLRB 1018, 1020 (1990) (union security and checkoff), and Challenge-Cook Bros., 288 NLRB 387,
388 (1988)(union security and checkoff), but they may be evidence of bad faith if the reasons advanced for the
proposal(s) are “so illogical as to warrant an inference that . . . [the employer] has evinced an intent not to reach
agreement . . . in order to frustrate bargaining.” Phelps Dodge Specialty Cooper Products Co., 337 NLRB 455, 457
(2002) (citing Hickinbotham Bros. Ltd., 254 NLRB 96, 102-103 (1981). See also Tomco Communications, 220 NLRB
636, 636 (1975), enf. denied 567 F.2d 871 (9th Cir. 1978) (an employer’s “[r]igid adherence to proposals which are
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40
b. Declaration of Impasse and Implementation of Last, Best, and Final Offer
The General Counsel further alleges that on January 30, 2019, Respondent violated Section 8(a)(5)
and (1) of the Act when it declared impasse and implemented its last, best, and final collective-bargaining
proposal, unilaterally changing mandatory subjects of bargaining, including articles addressing dues
checkoff, grievance procedures, safety, holidays, union access, and the term of the agreement, without first 5
bargaining with the Union to an overall good-faith impasse for a successor agreement. Additionally, it
separately violated Section 8(a)(5) and (1) when it insisted to impasse and implemented a change to the
scope of the Unit, which is a permissive subject of bargaining.48
The Board has held a bargaining impasse occurs when good-faith negotiations have exhausted the 10
prospects of reaching an agreement and the parties are deadlocked. Taft Broadcasting Co., 163 NLRB 475,
478 (1967), review denied sub. nom. 392 F.2d 622 (D.C. Cir. 1968). To determine whether a good-faith
impasse has been reached, the Board considers the totality of the circumstances, including “[t]he bargaining
history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, [and] the contemporaneous understanding of the parties 15
as to the state of negotiations.” Stein Industries, Inc., 365 NLRB No. 31, slip op. at 3 (2017) (quoting Taft
Broadcasting Co., supra). Impasse is that point in time in negotiations where the “parties have discussed
the subject or subjects in good faith, and, despite their best efforts to achieve agreement with respect to
such, neither party is willing to move from its respective position.” Hi-Way Billboards, Inc., 206 NLRB 22,
23 (1973), enf. denied on other grounds 500 F.2d 181 (5th Cir. 1974). The parties must both “believe they 20
are at the end of their rope.” Nexeo Solutions, LLC, 364 NLRB No. 44, slip op. at 12 (2016) (quoting
Larsdale, Inc., 310 NLRB 1317, 1318 (1993)). The party claiming impasse bears the burden of
demonstrating its existence. Dish Network Corp., 366 NLRB No. 119, slip op. at 2 (2018); Grosvenor
Orlando Associates, Ltd., 336 NLRB 613, 616 (2001). For the reasons stated below, I find Respondent
failed to meet its burden of proving the parties were at good-faith impasse.25
Respondent contends the parties met for negotiations approximately 20 times over 7.5 months, and
while they were able to reach minor tentative agreements--changing the employer’s legal name, updating
the anti-discrimination language, and moving existing language about benefit eligibility from one article to
another--they were unable to come to an agreement on any of the important issues. Additionally,
Respondent contends after it gave the Union its last, best, and final offer, the Union failed to accept, reject, 30
or present any counter, and, therefore, as of January 30, 2019, the parties had a contemporaneous

predictably unacceptable to the union may indicate a predetermination not to reach an agreement, or a desire to produce
a stalemate in order to frustrate bargaining and undermine the statutory representative.”).
As stated, the record is silent as to what, if any, reasons Respondent offered the Union for why it was
advancing these proposals. However, the contents and timing of the proposals suggests an intent to frustrate
bargaining. Starting in at least January 2018, Respondent unilaterally changed the contractual dues-checkoff
revocation procedure and processed untimely revocations without the Union’s consent and without providing the
Union with prior notice and an opportunity to bargain. With its initial proposal, Respondent sought to eliminate dues
checkoff entirely. Similarly, beginning in late June 2017, and continuing, Respondent barred Union agents from
accessing the facility. The Union’s grievance over this went to arbitration on April 25, 2018. Respondent submitted
its initial proposal on May 15--a few weeks after the arbitration--and it sought to change or eliminate every contractual
provision that allowed the Union agents access to the facility. The timing of those proposals, at least as it relates to
Union’s ability to access the facility, strikes as retaliation for the Union asserting its contractual right to access. This
hint of retaliatory motive resurfaced in late January 2019, after the Union obtained a district court order enforcing the
arbitration decision. Thereafter, the Union went to Respondent’s facility and was again denied access. That same
day, Respondent’s attorney declared impasse and implemented its last, best, and final offer. Although there are no
allegations Respondent made regressive or retaliatory proposals, the nature and timing of these proposals further
supports that Respondent failed or refused to bargain in good faith with a sincere intent to reach a successor agreement.
48 Paragraph 13 of the second consolidated complaint.
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41
understanding about the state of negotiations, which was they were both “at the end of their rope.” (R. Br.
26). I reject these contentions.
Although the parties met multiple times over several months, as stated, little of that time was spent
in actual negotiations. See Fallbrook Hospital, 360 NLRB 644, 651 (2014) (citing to NLRB v. American
National Insurance Co., 343 U.S. 395, 404 (1952) (quantity or length of bargaining sessions does not 5
necessarily equate with good-faith bargaining; must look at the substance and approach of the parties);
Insulating Fabricators, 144 NLRB 1325 (1963), enfd. 338 F.2d 1002 (4th Cir. 1964). Respondent held
firm to its initial May 15 proposal and summarily rejected each of the Union’s counterproposals, without
explanation. 88 Transit Lines, 300 NLRB 177, 178 (1990)(“major function of the bargaining process is
reaching common ground that represents modifications of language contained in parties' initial 10
proposals.”)(emphasis added).
Respondent claims the parties were at impasse because they could not come to agreement on any
of the “important” issues. Respondent, however, fails to identify what those “important” issues were. It
also fails to identify what, if any, efforts it made to reach agreement on those issues. The record does not
reflect that Respondent ever explained to the Union the importance of the changes it was proposing, or why 15
it summarily rejected the Union’s quid pro quo proposals addressing certain of those changes, without
explanation or a counterproposal. If a party is unwilling to make any meaningful modifications to its
proposals, it is in effect maintaining an impermissible “take it or leave it” approach to bargaining. NLRB v.
Insurance Agents' International Union, 361 U.S. 477, 485 (1960).
Respondent also contends the parties were at impasse because the Union failed to accept, reject, or 20
present a counter to Respondent’s last, best, and final offer. To begin with, the proposal Respondent
provided on January 2 and implemented on January 30 was not a complete proposal. It failed to include
the parties’ tentative agreements, and it omitted any reference to wages. The Board has held the employer’s
failure to provide requested information that is necessary for the union to create proposals or
counterproposals and, as a result, engage in meaningful bargaining, will preclude a lawful impasse. See E. 25
I. du Pont & Co., 346 NLRB 553, 557-558 (2006); Decker Coal Co., 301 NLRB 729, 740 (1991). The
Union withheld submitting any economic proposals, including on wages, because it was waiting on the
information it had requested from Respondent. As a result, the Union was in no position to accept, reject,
or counter the last, best, and final offer.
Similarly, there is no basis from which to conclude the parties both understood they were 30
deadlocked or at the end of their ropes. Respondent never moved from its initial proposal, and it did not
advise the Union as to which, if any, of its proposals it would be willing to modify or eliminate, or which
of its proposals it was adamant about including in any agreement. Similarly, the Union never advised
Respondent as to which, if any, of its proposals it would be unwilling to further modify or eliminate, or
which of Respondent’s proposals it would adamantly refuse to accept. The bottom line is the parties never 35
got that far in their negotiations.
The Board has held that even if the parties reach a deadlock in their negotiations, a finding of
impasse is foreclosed if that outcome is reached in the context of serious unremedied unfair labor practices
that affect the negotiations, including failure to provide relevant information, unilateral changes to
mandatory subjects of bargaining, and direct dealing. Royal Motor Sales, 329 NLRB 760, 762 40
(1999)(unilateral changes to wages serious and precluded impasse); Great Southern Fire Protection, 325
NLRB 9 (1997)(refusal to provide information and unilateral implementation of changes to benefits serious
and precluded impasse); and Noel Corp., 315 NLRB 905, 911 fn. 33 (1994) (unlawful discharge and refusal
to reinstate employees engaged in strike serious and precluded impasse), enf. denied on other grounds 82
F.3d 1113 (D.C. Cir. 1996). See also Raven Government Services, Inc., 331 NLRB 651 fn. 3 (2000)(Board 45
found refusal to provide requested information, unilateral changes to mandatory subjects, and direct dealing
JD-78-19
42
to be “serious” unremedied violations barring employer from withdrawing recognition). As explained,
Respondent engaged in serious unfair labor practices that affected negotiations. As discussed below,
through its commission of these serious unfair labor practices, Respondent undermined the Union as the
exclusive collective-bargaining representative of the Unit, including its ability to effectively bargain.
In light of the foregoing, I find Respondent violated Section 8(a)(5) and (1) when it unlawfully 5
implemented its last, best, and final offer, which unilaterally changed mandatory subjects of bargaining,
including articles addressing dues checkoff, grievance procedures, safety, holidays, union access, and the
term of the agreement, without first bargaining with the Union to an overall good-faith impasse.
Respondent further violated Section 8(a)(5) and (1) when it insisted to impasse and implemented
its last, best, and final offer removing the maintenance employees from the Unit. Although parties may 10
negotiate over non-mandatory, or permissive, subjects of bargaining, a party may not insist on those
subjects to impasse. If an impasse has been created, even in part, by a party’s insistence on bargaining
about a non-mandatory subject, that impasse is not valid. Retlaw Broadcasting Co., 324 NLRB 138, 143
(1997), enfd. 172 F.3d 660 (9th Cir. 1999). An employer that bargains to impasse over, and unilaterally
implements a permissive subject of bargaining, violates Section 8(a)(5). See Antelope Valley Press, 311 15
NLRB 459, 460 (1993). Unit scope is not a mandatory bargaining subject, and consequently a party may
not insist to impasse on alteration of the unit. Somerset Valley Rehabilitation and Nursing Center, 364
NLRB No. 43, slip op. at 4 (2016) (eliminating or removing a unit classification alters the scope of the
bargaining unit and, therefore, is a permissive subject of bargaining); Idaho Statesman, 281 NLRB 272,
275-277 (1986), enfd. 836 F.2d 1396 (1988). Here, Respondent presented the Union with its last, best, and 20
final offer which removed maintenance employees from the Unit, then declared the parties were at impasse,
and implemented that offer, in violation of Section 8(a)(5) and (1).
c. Denigrating or Undermining the Union
The General Counsel alleges that since at least January 23, 2018, Respondent made statements and
engaged in conduct that violated Section 8(a)(1) and (5) of the Act--all of which has been set forth and 25
addressed above--in an attempt to undermine or denigrate the Union as the exclusive collective-bargaining
representative of the Unit.49 The Board has found that an employer violates Section 8(a)(5) and (1) by

49 Paragraph 12 of the second consolidated complaint. Subparagraph 12(a) specifically alleges Respondent sought to
undermine the Union when it: (1) made coercive statements to employees concerning continued Union representation
during a March 2018 safety meeting (referring to subparagraph 5(a) of the second consolidated complaint); (2) failed
to provide the Union with the presumptively relevant information since November 7, 2017 (referring to paragraph 8
of the second consolidated complaint); (3) failed to cloak its bargaining representatives with the authority to enter into
binding agreements; (4) cancelled bargaining sessions at the last moment without explanation; (5) failed to make
bargaining proposals and failed to provide explanations for rejections of the Union’s bargaining proposals; (6)
denigrated the Union in the eyes of Unit employees by statements during a March 2018 safety meeting (referring to
subparagraph 5(a) of the second consolidated complaint); (7) denigrated the Union in the eyes of the Unit employees
by solicited employees to resign from the Union and to cease paying dues in June and July 2018 (referring to
subparagraph 5(c)(2) of the second consolidated complaint; (8) provided pre-printed forms to employees to resign
from the Union and revoke their dues checkoff authorizations from January through July 2018; (9) interrogated
employees about their support for the Union in June and July 2018 (referring to subparagraph 5(c)(3) of the second
consolidated complaint); (10) coerced employees into signing pre-printed non-disclosure of confidential employment
information forms from January through July 2018 (referring to subparagraph 5(c)(4) of the second consolidated
complaint); (11) bypassing the Union and dealing directly with employees about mandatory terms of conditions of
employment in June 2018 (referring to subparagraph 9 of the second consolidated complaint); (12) unilaterally
changed employees’ terms and conditions of employment, including wages and dues-checkoff revocations, without
notice and bargaining with the Union and changed the terms of the collective-bargaining agreement without the
Union’s consent (referring to paragraph 10 of the second consolidated complaint); and (13) implemented its last best
JD-78-19
43
disparaging of a union or by casting doubt in the minds of the membership as to the bona fides of the efforts
of union representatives in advancing the interest of its members. General Athletic Products Co., 227 NLRB
1565, 1575 (1977). An employer’s efforts to portray the employer, rather than the union, as the workers’
true protector may constitute an unfair labor practice. NLRB v. United Technologies Corp., 789 F.2d 121,
134 (2nd Cir. 1986); Formosa Plastics Corp., 320 NLRB 631, 632 (1996). Additionally, an employer 5
violates Section 8(a)(5) and (1) by conduct that undermines a representative's authority to bargain. See
generally, Outdoor Venture Corp., 336 NLRB 1006, 1011 (2001)(direct dealing); Grosvenor Resort, 336
NLRB at 617 (unilateral changes in wages and benefits); Bryant & Stratton Business Institute, 321 NLRB
at 1044 (failure to provide information); Thill, Inc., 298 NLRB 669, 672 (1990) (overall bad-faith
bargaining), enfd. in part 980 F.2d 1137 (7th Cir. 1992).10
As previously established, Respondent engaged in several of these violations, including refusing to
provide the Union with requested information that was relevant and necessary for bargaining a successor
agreement, coercing employees into signing non-disclosure forms related to the information the Union had
requested, unilaterally changing the terms of the parties’ agreement without the Union’s consent and 15
changing mandatory subjects of bargaining without providing the Union with prior notice and opportunity
to bargain over those changes, direct dealing, overall bad-faith bargaining, prematurely declaring impasse
and implementing its last, best, and final offer. I, therefore, find Respondent violated Section 8(a)(1) and
(5) by undermining or denigrating the Union as the representative of the Unit employees.
20
V. SPECIAL REMEDIES
The General Counsel seeks certain special or enhanced remedies to address Respondent’s unfair
labor practices in violation of Sections 8(a)(1), (5) and 8(d) of the Act, noting that the violations are
widespread, ongoing, and strike at the heart of the employees’ Section 7 rights. First, the General Counsel 25
seeks an order requiring that, at a meeting or meetings scheduled to ensure the widest possible attendance,
Respondent’s representative read the attached notice to the employees on work time in the presence of a
Board agent. Alternatively, the General Counsel seeks an order requiring that Respondent promptly have
a Board agent read the notice to employees during work time in the presence of Respondents’ supervisors
and agents. The Board has recognized that notice reading is an extraordinary remedy but, in this instance, 30
I believe it is warranted. Sysco Grand Rapids, LLC, 367 NLRB No. 111 (2019). Respondent has engaged
in a series of serious unfair labor practices, some of which involve supervisors and agents, including the
plant manager, the operations manager, the human resource manager, and several supervisors. See Stern
Produce Company, Inc., 368 NLRB No. 31, slip op. at 5 (2019) (citing North Memorial Health Care, 364
NLRB No. 61, slip op. at 1 (2016) (notice reading appropriate in part due to high-ranking responsible 35
management officials in unfair labor practices), enfd. in relevant part 860 F.3d 639 (8th Cir. 2017). Such
serious and pervasive unlawful conduct, as described and found herein, warrants a notice reading (in
English and Spanish) to reassure employees that that their employer and its managers and supervisors are
bound by the Act's requirements. Homer D. Bronson Co., 349 NLRB 512, 515 (2007) (and cited cases),
enfd. mem. 273 Fed.Appx. 32 (2nd Cir. 2008).40
Next, the General Counsel seeks an order requiring that Respondent allow the Union reasonable
access to its bulletin boards and all places where notices to employees are customarily posted. The General
Counsel fails to explain why this remedy is necessary. Article 5 of the parties’ expired agreement--which
will operate as the status quo pursuant to the remedial order at least until the parties bargain to impasse or 45
a new agreement--requires that Respondent provide the Union with one glassed-in bulletin board for its use
for approved purposes. The General Counsel fails to explain why this is inadequate and why greater access

and final offer on January 30, 2019, before reaching a valid impasse (referring to paragraph 13 of the second
consolidated complaint). (GC Exhs. 17 and 18). Each of these allegations has been addressed above.
.
JD-78-19
44
to “all places where notices to employees are customarily posted” is warranted. As a result, I deny ordering
this enhanced remedy.
The General Counsel also seeks an order requiring Respondent supply the Union, on its request,
the names and addresses of its current Unit employees. Again, the General Counsel does not explain why 5
this remedy is necessary. The standard remedy in a failure to provide information case is to require the
employer to provide the union with requested information that is relevant and necessary to its role as
collective-bargaining representative. The Board has held the names and addresses of current unit
employees is presumptively relevant. Children’s Center for Behavioral Development, 347 NLRB 35, 49
(2006); Helca Mining Co., 248 NLRB 1341, 1341, 1343 (1980); and Dynamic Machine Co., 221 NLRB 10
1140, 1142 (1975), enfd. 552 F.2d 1195 (7th Cir. 1977), cert. denied 434 U.S. 827 (1977). However, there
are no allegations the Union requested, and Respondent failed or refused to provide, the Union with the
Unit employees’ names and addresses. As a result, I deny ordering this enhanced remedy. That being said,
Respondent is obligated to provide the Union with the information it requested since November 6, 2017,
and Respondent has an ongoing statutory duty to bargain with the Union in good faith, including the duty 15
to provide the Union with requested information that is relevant and necessary to the Union’s role(s) as
collective-bargaining representative of the Unit.
Similarly, the General Counsel seeks an order requiring Respondent to grant the Union access to
non-work areas during employees’ non-work time. Although Respondent denied Union agents access to 20
the facility, the second consolidated complaint does not allege that to be an unfair labor practice. As a
result, there is no basis to order a remedy for conduct not alleged to be unlawful. I, therefore, deny ordering
this enhanced remedy.
The General Counsel also seeks an order requiring Respondent to bargain on request with the Union 25
with a bargaining representative cloaked with the authority to enter into binding agreements. That
requirement is part of the standard remedy where, as here, the employer has failed or refused to bargain in
good faith, including failing to designate a negotiator with the authority to bargain and enter into an
agreement.
30
Finally, the General Counsel seeks an order that Respondent bargain on request for a minimum of
24 hours per month, each session to last a minimum of six hours, until an agreement or lawful impasse is
reached or until the parties agree to a respite in bargaining.50 Because of the pervasive and serious nature
of Respondent’s violations, set forth above, I believe that a bargaining schedule requiring the Respondent
to meet and bargain with the Union on a regular and timely basis is appropriate and would best effectuate 35
the purposes of the Act. See All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (ordering
employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. 540 Fed.Appx. 484
(6th Cir. 2013). I find that the above schedule, which will promote regular meaningful bargaining between
the parties, to be appropriate here. I shall also require the Respondent submit written bargaining progress
reports every 30 days to the compliance officer for Region 14, and to serve copies on the Union. Id.5140

50 This is consistent with the terms of the bilateral informal Board settlement Respondent entered into to resolve the
allegations in Case 14-CA-217400.
51 The General Counsel also seeks an order requiring Respondent reimburse the discriminatees for all search-for-work
and work-related expenses regardless of whether the discriminatees received interim earnings in excess of these
expenses, or at all, during any given quarter, or during the overall backpay period. That is part of the standard remedy
involving the discharge of individuals for engaging in statutorily protected activities.
JD-78-19
45
CONCLUSIONS OF LAW
1. Respondent, Noah’s Ark Processors, LLC d/b/a WR Reserve, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
5
2. The Union, United Food and Commercial Workers Local Union No. 293, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is, and at all material times was, the certified exclusive collective-bargaining
representative, within the meaning of the Section 9(a) of the Act, of an appropriate unit of employees 10
consisting of the following (hereinafter the “Unit”):
All production, maintenance, shag drivers and distribution employees, excluding office
clerical employees, professional employees, guards and supervisors, as defined in the
Act.15
4. At all material times, Mike Helzer, Paul Hernandez, Chris Kitch, Lidia Acosta, Joel Murillo, Jose
Madrigal, Karen Mendoza, Josue Guerrero, Clay Irish, Maruylys Castillo Cisnero, and Luis Prado have
been supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent
within the meaning of Section 2(13) of the Act.20
5. At all material times, Dinora Murillo and Mary Junker were agents of Respondent within the
meaning of Section 2(13) of the Act.
6. On about March 27, 2018, Respondent, through Paul Hernandez and Mike Helzer, threatened25
employees with termination for engaging in protected, concerted activities, told employees they were
terminated for engaging in protected, concerted activities, and threatened to call the police because the
employees engaged in protected, concerted activities, in violation of Section 8(a)(1) of the Act.
7. On various dates since January 23, 2018, Respondent, through Lidia Acosta and Dinora Murillo,30
coerced employees into signing pre-printed forms prohibiting Respondent’s disclosure of employees’
employment information without employees’ written consent, in violation of Section 8(a)(1) of the Act.
8. On various dates since January 23, 2018, Respondent has failed to remit employee dues to the
Union pursuant to valid, unexpired, and unrevoked employee dues-checkoff authorizations, in violation of35
Section 8(a)(1) of the Act.
9. In about early November 2018, Respondent, through Paul Hernandez, Joel Murillo, Jose Madrigal,
and Josue Guerrero, interrogated employees about their Union and/or Board activities, in violation of
Section 8(a)(1) of the Act.40
10. In about early November 2018, Respondent, through Paul Hernandez, Joel Murillo, and Jose
Madrigal, required employees to meet with and/or use attorneys retained and compensated by Respondent
prior to and when meeting with Board agents, in violation of Section 8(a)(1) of the Act.
45
11. In about early November 2018, Respondent, through Paul Hernandez, told employees they were
required to use Respondent’s paid attorneys when meeting with the Board’s agents and stated they were
required to use the Respondent’s paid attorneys to meet with the Board’s agents because Respondent didn’t
want employees to be confused speaking to the Board agents or use a word that he didn’t know how to use
properly, in violation of Section 8(a)(1) of the Act.50
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46
12. On about March 27, 2018, Respondent terminated employees Guadalupe Ortiz, Viviana Hernandez,
Brittney Spratt, Jimmy Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle
Anzualdo, and Maya Keana Wright, because they engaged in protected, concerted activities by collectively
requesting from Respondent explanations of wage discrepancies and demanding a wage increase, in
violation of Section 8(a)(1) of the Act.5
13. Since November 6, 2017, and continuing, Respondent has repeatedly failed or refused to provide
the Union with all of the requested information related to Unit employees’ wages, hours, and terms and
conditions of employment, which is both relevant and necessary to the Union’s role as collective-bargaining
representative, in violation of Section 8(a)(5) and (1) of the Act.10
14. In about late June 2018, Respondent, through Mike Helzer, Paul Hernandez, Chris Kitch, Clay
Irish, Karen Mendoza, Marulys Castillo Cisneros, Joel Murillo, Luis Prado and Jose Madrigal, bypassed
the Union and dealt directly with Unit employees by soliciting their preferences about moving the
observance of the Independence Day holiday from July 4, 2018 to July 6, 2018, in violation of Section 15
8(a)(1) and (5) of the Act.
15. Since about January 23, 2018, Respondent unilaterally began changing the Unit employees’ hourly
wage rates and began paying them wages contrary to the parties’ collective-bargaining agreement, without
notice and bargaining with the Union over the decision or its effects, and without the Union’s consent, in 20
violation of Sections 8(a)(1) and (5) and 8(d) of the Act.
16. Since about January 23, 2018, Respondent unilaterally began failing and refusing to deduct and
remit to the Union dues pursuant to valid, unexpired, and unrevoked employee dues-checkoff
authorizations, without notice and bargaining with the Union over the decision or its effects, and without 25
the Union’s consent, in violation of Section 8(a)(1) and (5) and 8(d) of the Act.
17. Since about January 23, 2018, and through the present, Respondent has been attempting to
undermine the Union by failing to provide the Union with presumptively relevant information related to
Unit employees’ terms and conditions of employment; failing to cloak its bargaining representatives with 30
the authority to enter into binding agreements; canceling bargaining sessions at the last moment without
explanation; failing to make bargaining proposals and counterproposals; failing to provide explanations for
rejections of the Union’s bargaining proposals and counterproposals; denigrating the Union in the eyes of
Unit employees; coercing employees into signing non-disclosure of confidential employment information
forms; directly dealing with employees about mandatory terms of conditions of employment; unilaterally 35
changing employees’ terms and conditions of employment without notice and bargaining with the Union
and changing the terms of the parties’ collective-bargaining agreement without the Union’s consent,
including those prematurely implemented pursuant to Respondent’s last, best and final offer, in violation
of Section 8(a)(1) and (5) of the Act.
40
18. Since about March 2018, through the present, Respondent has been failing and refusing to bargain
in good faith with the Union by failing to provide the Union with the presumptively relevant information
related to bargaining unit employees’ terms and conditions of employment; failing to cloak its bargaining
representatives with the authority to enter into binding agreements, cancelling bargaining sessions at the
last moment without explanation; failing to make bargaining proposals; failing to provide explanations for 45
rejection of the Union’s bargaining proposals; denigrating the Union in the eyes of Unit employees;
coercing employees into signing pre-printed non-disclosure of confidential employment information forms;
directly dealing with employees about mandatory terms of conditions of employment; unilaterally changing
employees’ terms and conditions of employment without notice and bargaining with the Union and
changing the terms of the parties’ collective-bargaining agreement without the Union’s consent, including 50
JD-78-19
47
those prematurely implemented pursuant to Respondent’s last, best and final offer, in violation of Section
8(a)(1) and (5) of the Act.
19. On about January 30, 2019, Respondent declared impasse and implemented its last, best and final
collective-bargaining proposal addressing mandatory subjects of bargaining, such as dues checkoff, 5
grievance procedure, safety, holidays, union access, and term of agreement, without first bargaining with
the Union to an overall good-faith impasse for a successor collective-bargaining agreement, in violation of
Section 8(a)(1) and (5) of the Act.
20. On about January 30, 2019, Respondent insisted to impasse and implemented its last, best and final 10
collective-bargaining proposal containing a permissive subject of bargaining, in violation of Section 8(a)(1)
and (5) of the Act.
21. The above violations are unfair labor practices that affect commerce within the meaning of Section
2(6) and (7) of the Act. 15
22. Consistent with this decision, I recommend dismissing the remaining allegations.
REMEDY
20
Having found that Respondent engaged in certain unfair labor practices, I find they must be ordered
to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1) of the Act when it terminated Guadalupe Ortiz,
Viviana Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra
Diaz, Kyle Anzualdo, and Maya Keana Wright, Respondent shall offer them each full reinstatement to their25
former jobs or, if their former position no longer exists, to a substantially equivalent position, without
prejudice to seniority or any other rights or privileges previously enjoyed, and to make each whole for any
loss of earnings and other benefits suffered as a result of the discrimination suffered. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River 30
Medical Center, 356 NLRB 6 (2010). In accordance with the decision in King Soopers, Inc., 364 NLRB
No. 93 (2016), Respondent shall compensate each for their search-for-work and interim employment
expenses regardless of whether those expenses exceed their interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at the rate
prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, 35
supra. Respondent shall file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters. Additionally, Respondent shall be required to compensate them for the
adverse tax consequences, if any, of receiving a lump-sum backpay award, and to file with the Regional
Director for Region 14, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar years. AdvoServ of New 40
Jersey, Inc., 363 NLRB No. 143 (2016). Finally, Respondent shall rescind and remove from its files any
reference to these terminations in its files, and to notify these employees in writing that this has been done
and that these terminations will not be used against them in any way.
Having found that Respondent violated Sections 8(a)(5) and 8(d) of the Act unilaterally changed 45
terms and conditions of employment for Unit employees, Respondent shall, on request, rescind those
changes and retroactively restore any unilaterally modified terms and conditions of employment.
Respondent shall bargain in good-faith with the Union as the exclusive collective-bargaining representative
of Unit employees before implementing any changes in wages, hours, or other terms and conditions of
employment of Unit employees. Respondent also must make whole the Unit employees for any loss of 50
wages or other benefits suffered as a result of the unilateral changes in the manner set forth in Ogle
JD-78-19
48
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, supra, compounded daily as prescribed in Kentucky River, supra.
Having found that Respondent violated Section 8(a)(5) of the Act by prematurely declaring impasse
and unilaterally implementing its last, best, and final offer on January 30, 2019, without bargaining with 5
the Union to a good-faith impasse, and changing terms and conditions of employment for Unit employees
thereafter, as well as implementing a permissive subject of bargaining, Respondent shall, on request, rescind
the changes in terms and conditions of employment implemented on January 30, 2019, and retroactively
restore all terms and conditions of employment as they existed prior to the January 30, 2019 implementation
of that offer, and to the extent consistent with the terms of this Order. Respondent also shall make whole10
the unit employees for any loss of wages or other benefits suffered as a result of the unilateral changes in
the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River, supra.
Having directly dealt with bargaining unit employees over mandatory subjects of bargaining, 15
Respondent shall cease and desist from engaging in such behavior in the future.
Having failed to deduct and remit dues to the Union pursuant to valid, unexpired, and unrevoked
employee dues checkoff authorizations, Respondent shall honor checkoff provisions in the parties’
collective-bargaining agreement and valid dues-checkoff authorizations filed with it. Respondent also shall 20
make the Union whole for any dues that it failed to deduct and transmit pursuant to valid, unexpired, and
unrevoked employee dues-checkoff authorizations, with interest. Interest shall be computed in accordance
with New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.
Respondent shall also reimburse Unit employees for any expenses ensuing from failure to make required
contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, fn. 2 (1980), with interest as 25
computed above. Respondent also shall preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records necessary to analyze the amount due under the terms of
this Order.
Having failed to provide the Union with presumptively relevant information related to Unit30
employees' terms and conditions of employment since November 6, 2017, Respondent shall provide the
Union with all information it requested in writing on November 6, 2017, and on subsequent dates.
Having found that Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain in
good faith with the Union, Respondent shall be ordered to meet at reasonable times and in good faith with 35
the Union as the exclusive bargaining representative of its employees in the above described bargaining
unit with respect to wages, hours, and other terms and conditions of employment and, if an understanding
is reached, to embody the understanding in a written agreement. Due to Respondent’s refusal to designate
an authorized negotiator with authority to enter into binding agreement, delay in scheduling or cancelling
bargaining sessions, failure to submit proposals and counterproposals, failure to provide explanations for 40
rejecting the Union’s proposals and counterproposals, and overall failure to meet and bargain in good faith
with the Union, a bargaining schedule requiring Respondent to meet and bargain with the Union on a regular
and timely basis is appropriate and would effectuate the purposes of the Act. See All Seasons Climate
Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (ordering employer to comply with a bargaining schedule
to remedy its unlawful conduct), enfd. 540 Fed. Appx. 484 (6th Cir. 2013). Upon the Union's request, 45
Respondent shall be required to bargain for a minimum of 24 hours per month, each session to last a
minimum of six hours, until an agreement or lawful impasse is reached or until the parties agree to a respite
in bargaining. Respondent shall also be required to submit written bargaining progress reports every 30
days to the compliance officer for Region 14, and to serve copies of those reports on the Union.
50
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49
Respondent shall post the attached Notice to Employees in English and Spanish in all places where
Respondent normally posts notices and keep all Notices posted for 60 consecutive days. In addition to
physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. Respondent also shall hold a meeting or meetings, scheduled to ensure 5
the widest possible attendance on each shift, at which a responsible management official of Respondent
will read the Notice in English and Spanish, in the presence of a Board agent. Alternatively, Respondent
also shall hold a meeting or meetings, scheduled to ensure the widest possible attendance on each shift, at
which a Board agent read the Notice in English and Spanish, in the presence of Respondents’ supervisors
and agents.10
In the event that during the pendency of these proceedings Respondent has gone out of business or
closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employees employed by Respondent at any time
since November 6, 2017. When the notice is issued to Respondent, it shall sign it or otherwise notify Region 15
14 of the Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended52
20
ORDER
Respondent, Noah’s Ark Processors, LLC d/b/a WR Reserve, at its Hastings, Nebraska facility,
its officers, agents, successors, and assigns, shall:
25
1. Cease and desist from:
a. Failing or refusing to bargain in good-faith with the Union as the designated collective-
bargaining representative of all Respondent’s production, maintenance, shag drivers and distribution
employees, excluding office clerical employees, professional employees, guards and supervisors, as defined 30
in the Act (hereinafter the “Unit”).
b. Threatening employees with termination for engaging in protected, concerted activities; telling
employees they were terminated for engaging in protected, concerted activities; and threatening to call the
police because the employees engaged in protected, concerted activities.35
c. Coercing employees into signing pre-printed forms prohibiting Respondent’s disclosure of
employees’ employment information without employees’ written consent.
d. Failing to deduct and remit employee dues to the Union pursuant to valid, unexpired, and 40
unrevoked employee dues checkoff authorizations.
e. Interrogating employees about their Union and/or Board activities.
f. Requiring employees to meet with and/or use attorneys retained and compensated by45
Respondent prior to and when meeting with Board agents.

52 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
JD-78-19
50
g. Telling employees that they were required to use Respondent’s paid attorneys when meeting
with the Board’s agents and stated they were required to use the Respondent’s paid attorneys to meet with
the Board’s agents because Respondent didn’t want employees getting confused or using a word they
didn’t know how to use properly when meeting with Board agents.
5
h. Discharging employees because they engaged in protected, concerted activities, including
collectively protesting wage discrepancies and demanding a wage increase.
i. Failing or refusing to provide the Union with all of the requested information related to Unit
employees’ wages, hours, and terms and conditions of employment, which is both relevant and necessary 10
to the Union’s role as collective-bargaining representative.
j. Bypassing the Union and directly dealing with Unit employees by soliciting their preferences
about moving the observance of the Independence Day holiday.
15
k. Unilaterally changing Unit employees’ wages, hours, and other terms and conditions of
employment without providing the Union with notice and bargaining to a good-faith impasse over those
changes and/or their effects.
l. Changing the Unit employees’ hourly wage rates and begin paying them wages and failing to20
deduct and remit to the Union dues pursuant to valid, unexpired, and unrevoked employee dues-checkoff
authorizations, contrary to the parties’ collective-bargaining agreement, without the Union’s consent.
m. Attempting to undermine the Union by failing to provide the Union with presumptively
relevant information related to Unit employees’ terms and conditions of employment; failing to cloak its 25
bargaining representatives with the authority to enter into binding agreements; canceling bargaining
sessions at the last moment without explanation; failing to make bargaining proposals; failing to provide
explanations for rejections of the Union’s bargaining proposals; denigrating the Union in the eyes of Unit
employees; coercing employees into signing non-disclosure of confidential employment information forms;
directly dealing with employees about mandatory terms and conditions of employment; unilaterally 30
changing employees’ terms and conditions of employment without notice and bargaining with the Union
and changing the terms of the parties’ collective-bargaining agreement without the Union’s consent,
including those prematurely implemented pursuant to Respondent’s last, best, and final offer.
n. Failing and refusing to bargain in good faith with the Union by failing to provide the Union35
with the presumptively relevant information related to bargaining unit employees’ terms and conditions of
employment; failing to cloak its bargaining representatives with the authority to enter into binding
agreements, cancelling bargaining sessions at the last moment without explanation; failing to make
bargaining proposals; failing to provide explanations for rejection of the Union’s bargaining proposals;
denigrating the Union in the eyes of Unit employees; coercing employees into signing pre-printed non-40
disclosure of confidential employment information forms; directly dealing with employees about
mandatory terms of conditions of employment; unilaterally changing employees’ terms and conditions of
employment without notice and bargaining with the Union and changing the terms of the parties’ collective-
bargaining agreement without the Union’s consent, including those prematurely implemented pursuant to
Respondent’s last, best, and final offer.45
o. Declaring impasse and implementing its last, best, and final collective-bargaining proposal
addressing mandatory subjects of bargaining, such as dues checkoff, grievance procedure, safety, holidays,
union access, and term of agreement, without first bargaining with the Union to an overall good-faith
impasse for a successor collective-bargaining agreement.50
JD-78-19
51
p. Insisting to impasse and implementing its last, best, and final collective-bargaining proposal
containing a permissive subject of bargaining.
q. In any like or related manner interfere with, restrain, or coerce employees in the exercise of
the rights listed above.5
2. Take the following affirmative action necessary to effectuate the policies of the Act:
a. Within 14 days from the date of this Order, offer full reinstatement to Guadalupe Ortiz, Viviana
Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, 10
Kyle Anzualdo, and Maya Keana Wright to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed, and take those additional as set forth in the remedy section of this decision.
b. On request, bargain in good faith with the Union as the exclusive collective-bargaining 15
representative of the Unit employees before implementing any changes to their wages, hours, or other terms
and conditions of employment.
c. On request, rescind the unilateral changes made to Unit employees’ terms and conditions of
employment, such as wage rates and dues-checkoff authorization, without the Union’s consent and without 20
bargaining with the Union to a good-faith impasse, retroactively restore those unilaterally modified terms
and conditions of employment, and take those additional steps as set forth in the remedy section of this
decision.
d. On request, rescind the changes in terms and conditions of employment for Unit employees 25
implemented on January 30, 2019, retroactively restore those unilaterally modified terms and conditions of
employment as they existed prior to the January 30, 2019 implementation of that offer, and take those
additional steps as set forth in the remedy section of this decision.
e. Honor dues-checkoff provisions in the parties’ collective-bargaining agreement and valid30
dues-checkoff authorizations filed with it and make the Union whole for any dues that it failed to deduct
and transmit pursuant to valid, unexpired, and unrevoked employee dues-checkoff authorizations, and take
those additional steps as set forth in the remedy section of this decision.
f. Provide the Union with presumptively relevant information related to Unit employees' terms 35
and conditions of employment that it requested in writing on November 6, 2017, and on subsequent dates.
g. Bargain for a minimum of 24 hours per month, each session to last a minimum of six hours,
until an agreement or lawful impasse is reached or until the parties agree to a respite in bargaining.
Respondent shall also be required to submit written bargaining progress reports every 30 days to the 40
compliance officer for Region 14, and to serve copies of those reports on the Union.
h. Within 14 days from the date of this Order, remove from its files any reference to the unlawful
termination of Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao,
Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana Wright, and within 3 days 45
thereafter, notify the employees in writing that this has been done and that the termination of assignment
will not be used against them in any way.
i. Preserve and, within 14 days of a request, or such additional time as the Regional Director for
Region 14 may allow for good cause shown, provide at a reasonable place designated by the Board or its 50
agents, all payroll records, social security payment records, timecards, personnel records and reports, and
JD-78-19
52
all other records, including an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
j. Within 14 days after service by the Region, post at its Hastings, Nebraska facility copies of the
attached notice marked “Appendix.”53 Copies of the notice, on forms provided by the Regional Director for 5
Region 14, after being signed by the Respondent’s authorized representative, shall be posted in English and
Spanish by the Respondent and maintained for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. In addition to physical posting of paper notices,
those notices shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees by such 10
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. Respondent also shall hold a meeting or meetings, scheduled to ensure
the widest possible attendance on each shift, at which a responsible management official of Respondent
will read the Notice in English and Spanish, in the presence of a Board agent. Alternatively, Respondent
also shall hold a meeting or meetings, scheduled to ensure the widest possible attendance on each shift, at 15
which a Board agent read the Notice in English and Spanish, in the presence of Respondents’ supervisors
and agents.
k. Within 21 days after service by the Region, file with the Regional Director for Region 14 a
sworn certification of a responsible official on a form provided by the Region attesting to the steps that the 20
Respondent has taken to comply.
Dated, Washington, D.C., October 11, 2019.
25
_____________________________________
Andrew S. Gollin
Administrative Law Judge30

53 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.”
0/m4akVo-L—
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative 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 do anything to prevent you from exercising the above rights.
WE WILL NOT fail or refuse to bargain in good faith with the United Food and Commercial Workers
Union Local 293 (the Union), as the exclusive collective-bargaining representative of all production,
maintenance, shag drivers and distribution employees, excluding office clerical employees, professional
employees, guards and supervisors, as defined in the Act, working at the Hastings, Nebraska facility.
WE WILL NOT coerce you into signing non-disclosure of employment information forms.
WE WILL NOT threaten you with termination or threaten to call the police on you if you engage in
protected concerted activities such as raising concerns about wage disparity.
WE WILL NOT tell you we are terminating you for engaging in protected concerted activities such as
raising concerns about wage disparity.
WE WILL NOT ask you about whether you received subpoenas from the National Labor Relations Board
(Board).
WE WILL NOT require that you meet with attorneys paid for by us related to Board investigations.
WE WILL NOT tell you that you are required to use the attorneys we paid for when you meet with Board
agents.
WE WILL NOT make coercive statements to you about your potential testimony to Board agents.
WE WILL NOT discharge or otherwise discriminate against you because you engage in protected
concerted activities such as raising concerns about wage disparity.
WE WILL NOT bypass the Union and deal directly with you over mandatory terms and conditions of
employment, including the observance of a holiday.
WE WILL NOT refuse to provide the Union with presumptively relevant information
WE WILL NOT fail to deduct and remit Union dues pursuant to valid dues deduction authorizations.
WE WILL NOT unilaterally change your wage rates and/or pay you wage rates contrary to the collective-
bargaining agreement.
WE WILL NOT make statements or engage in conduct that undermines the Union’s role as your
bargaining representative.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
WE WILL, upon request, bargain in good faith with the Union as the exclusive collective bargaining
representative of our unit employees.
WE WILL offer Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao,
Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana Wright reinstatement to their
former positions or, if those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any rights or privileges previously enjoyed.
WE WILL make Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao,
Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana Wright whole for any loss of
earnings and other benefits suffered as a result of their unlawful discharges, less any net interim earnings,
plus interest, plus reasonable search-for-work and interim employment expenses.
WE WILL compensate Guadalupe Ortiz, Viviana Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant
Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz, Kyle Anzualdo, and Maya Keana Wright for the adverse
tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the
Social Security Administration allocating the backpay award to the appropriate calendar quarters.
WE WILL remove from our files any reference to the unlawful discharges of Guadalupe Ortiz, Viviana
Hernandez, Brittney Spratt, Jimmy Deleon, Luz Maurant Lao, Jacinto Gomez, Maria Diaz, Sandra Diaz,
Kyle Anzualdo, and Maya Keana Wright, and within 3 days thereafter notify those individuals in writing
that this has been completed and their discharges will not be used against them in any way.
WE WILL, upon request by the Union, rescind unilateral changes made to employees’ wage rates and the
deduction and remittance of dues to the Union
WE WILL notify the Union in writing that this has been done.
WE WILL, upon request of the Union, rescind all changes in terms and conditions of employment
implemented on January 30, 2019 and restore all terms and conditions of employment as they existed prior
to the January 30, 2019 implementation, and WE WILL make whole employees adversely affected by the
January 30, 2019 implementation, with interest.
WE WILL beginning with the next scheduled bargaining session for the purpose of negotiating a successor
collective-bargaining agreement with the Union, utilize a negotiator at the table with authority to bind the
Respondent.
WE WILL bargain with the Union in sessions to be held for a minimum of 24 hours per month, each
session to last a minimum of six hours, until an agreement or lawful impasse is reached or until the parties
agree to a respite in bargaining.
WE WILL reimburse the Union for the losses resulting from our failure to deduct and remit dues since
January 23, 2018.
WE WILL resume deducting and remitting dues to the Union unless and until such time as employees
revoke their authorization for automatic dues deduction pursuant to the terms set forth in the employees’
dues checkoff authorizations.
Noah’s Ark Processors, LLC d/b/a WR Reserve
(Employer)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-217400
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (314) 449-7493.