B&C Cartage Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 14, 2008

07-CA-050606 (N.L.R.B. Nov. 14, 2008)

JD(ATL)–39–08
Freeland, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
B & C CARTAGE, INC.
and CASE 7–CA–50606
DANNY LANGFORD, JR., an Individual
Sarah Pring Karpinen, Esq.
for the General Counsel
Ken Karasick, Esq.
for the Respondent.
DECISION
Statement of the Case
LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before
me in Flushing, Michigan, on August 23, 2008. The complaint is based on a charge filed by
Danny Langford, Jr. (Langford), an Individual. The Complaint alleges violations of Section
8(a)(1) and (3) of the National Labor Relations Act (“the Act”). The complaint is joined by the
answer filed by B & C Cartage, Inc. (“the Respondent”) wherein it denies the commission of any
violations of the Act.
After due consideration of the testimony and exhibits received at the hearing and the
briefs filed by the parties, I make the following:1
Findings of Fact and Conclusions of Law
The Business of Respondent
The complaint alleges, Respondent admits and I find that at all times material herein, the
Respondent has been a corporation with an office and facility in Freeland, Michigan, where it
has been engaged as a contractor of DHL, Inc. (DHL) in the intrastate package pick–up and
delivery business, that during the calendar year 2007, a representative period, Respondent in

1 All dates are in 2007 unless otherwise stated.
JD(ATL)–39–08
2
conducting its operations, derived gross revenues in excess of $50,000 for the transportation of
freight in interstate commerce under arrangements with, and as an agent for common carrier
DHL, Inc. which operates between various states of the United States, and which is itself directly
engaged in interstate commerce and functions as an essential link in the transportation of freight
in interstate commerce and that at all material times, Respondent has been an employer engaged 5
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges that at all material times, Respondent has maintained an employee
policies and procedures manual containing the following overly broad rule:
10
Information about rates of pay and merit increases in pay, if any, are
deemed to be confidential matters between the company and each employee and
are not to be discussed among employees.
The complaint also alleges that Respondent, violated Section 8(a)(1) of the Act by its 15
agent Bruce Marenkewicz at its Freeland facility as follows:
(a) About March or April 2007, coercively interrogated employees about their
union activities and sympathies.
(b) About May 2007, admonished employees that they could not discuss a 20
union during working time.
The complaint also alleges that about May 2007, Respondent, by its agent Matthew McMullen
violated Section 8(a)(1) of the Act at its Freeland facility as follows:
25
(a) Admonished employees that they could not discuss a union during
working time.
(b) Coercively interrogated employees about their union activities and
sympathies.
(c) Impliedly threatened employees by telling them that Respondent had 30
previously fired an employee for talking about a union.
The complaint further alleges that on or about August 7, 2007, Respondent discharged its
employee Danny Langford, Jr. in violation of Section 8(a)(1) and (3) of the Act because he
expressed support for a labor organization and to discourage employees from engaging in these 35
and other concerted protected activities.
Respondent is a contract package delivery company that delivers and picks up packages
pursuant to a contract between it and DHL, an interstate delivery company. The Respondent’s
offices and operations are on DHL property which is allotted to the Respondent by DHL. In its40
operations Respondent shares a conveyer belt line with L & B, another contractor of DHL, which
is used to route the packages to the drivers of Respondent who put them on the vehicles assigned
to them by Respondent for delivery and pickup of packages. The typical day, Monday through
Friday starts at 7:00 a.m. when the drivers receive packages from the belt line for loading into
their vans for delivery to customers of DHL. The loading of the packages into the trucks lasts 45
about an hour to an hour and a half. After their trucks are loaded the drivers leave the facility
and commence to deliver the packages. The drivers also have pickup routes where they pick up
JD(ATL)–39–08
3
packages to be taken back to the premises for processing and delivery. About 6:00 p.m. to 7:00
p.m. the drivers return at the completion of their routes and turn in any packages not delivered or
that were picked up. They also turn their paperwork in and discuss any problems with the night
supervisor.
5
Bruce Marenkewicz is a co–owner of Respondent with Charles Helmes. The day shift
supervisor is Kristi Jeske who is in charge of the employee drivers. Matt McMullen was the
night supervisor at the time of the incidents in this case. Former package drivers Langford,
Theresa Peavey, Stephanie Huckins and Heather Linseman testified that in the spring and
summer of 2007 at the time of the incidents in this case, there was a jovial atmosphere among the 10
drivers of Respondent and that good natured bantering and the use of profanity and crude off–
color comments and gestures were the norm and that the use of this language and gestures was
tolerated by management. The drivers also testified that the language and gestures were not
directed toward individuals. DHL International Package Handler, Carmen Stricker, testified that
the use of this language and gestures occurred but not to the extent testified to by the other 15
drivers. On July 23, 2007, Stricker complained to supervisor Kristi Jeske that Langford had been
harassing her by crude remarks to her and making crude gestures directed to her. She testified
that this had gone on for some time and that she had initially walked away and attempted to
avoid Langford but that this was unsuccessful as he continued this unwelcome conduct.
20
Danny Langford was employed as a courier delivering and picking up packages for
delivery for customers. He had been employed for about a year at the time of his termination by
the Respondent. Langford testified that there was a lot of shop talk such as inappropriate
swearing, use of profanity and inappropriate gestures such as “flipping the bird” or popping up
his middle finger and saying, “F…You” among the employees who worked on the B & C 25
Cartage portion of the belt line they shared with employees of L & B, another contractor carrier
which also had a contract to pick up and deliver packages for DHL. Langford testified there
was a jovial atmosphere among Respondent’s employees on the belt line including the
aforedescribed shop talk. His testimony of the employees’ use of this language on the belt line
was corroborated by his fellow couriers Theresa Peavey, Stephanie Huckins and Heather 30
Linseman, all of whom no longer work for Respondent. They testified in support of the
testimony of Langford that there was a lot of good natured use of profanity and the like.
Supervisor Jeske initially denied that this atmosphere included profanity and the like as a regular
occurrence, until she was confronted with her affidavit, when she subsequently acknowledged
that this conduct occurred but contended it was not directed to anyone in particular. She 35
acknowledged that when she heard such language she would say “Please, no swearing on the belt
line.” I credit the testimony of Langford as supported by the testimony of Peavey, Huckins and
Linseman and as acknowledged by Jeske that the use of such profanity and crude gestures
regularly occurred.
40
Theresa Peavey, a former driver, testified that the L & B employees who used another
area of the belt line were in a union and that Langford joked with supervisor Kristi Jeske when
she tried to get him to deliver a package, and said, “Oh maybe I should check with my union rep
first” and then he laughed and Jeske walked away. Peavey testified that Langford made these
statements every week beginning in the spring of 2007. Peavey further testified that in the 45
beginning of May 2007, she was approached by night supervisor, Matt McMullen, who told her
the employees were not allowed to talk about a union while on work time and that employees
JD(ATL)–39–08
4
had been fired for discussing a union. There were two conversations and in one of them,
McMullen asked her if Langford “was the one starting the union”. She told him that she, herself,
was not the one starting the union and that she did not want to get in trouble for this. McMullen
told her that if she brought up the union, she could be fired. On a subsequent occasion
McMullen told her he was not supposed to talk to her about the Union and that he was only 5
doing it as a friendly gesture. He also told her that management was not supposed to talk about a
union but should use the “U–word” instead. Prior to these conversations, she had kept her
support of a union “secret”. She had not received any other restrictions as to what she could talk
about. She also testified that Huckins and Langford had joked about the union but that they did
not bring the union in. The first notice she had of the union’s campaign was when union 10
literature was placed in the employees’ vans. The election was held the end of January. She was
discharged and believed it was because of her support of the union. She was told she was
discharged because of her driving record.
Stephanie Huckins worked as a driver for Respondent about a year. She ended her 15
employment in August 2007. She testified that the atmosphere on the belt line was laid back and
happy with a lot of joking, swear words and profanity. There was a lot of talk about a union and
about the L & B contractor employees who used another area of the belt line and who had a
union. In the spring or summer of 2007 she had a conversation with Marenkewicz who said that
unions were not as good as they seem to be and do more damage than good. There was some 20
talk about a union but with her it was mostly joking.
Heather Linseman was employed by the Respondent as a driver from January 23, 2006 to
February 5, 2008. She worked with Langford and testified there was a friendly atmosphere in
the loading area with a lot of joking and the daily use of foul language and that the supervisors25
were aware of this talk and sometimes joined in. She discussed the union with Langford and the
other employees engaged in conversations about a union and complaints about their rate of pay,
lack of raises and health insurance. These conversations occurred two or three times a week.
They never used the word “union” for fear of the consequences if management became aware of
these discussions. After July 25, 2007, when Langford was separated from the Respondent she 30
asked Jeske if Langford would be coming back and Jeske told her, it would be up to co–owner
Charlie Helmes. A few weeks later Linseman asked Marenkewicz if Langford would be coming
back and he said it would be up to Jeske and McMullen. No one ever told Linseman that
Langford had quit. Within a few weeks or so, another individual was hired and she was told that
Langford would not be coming back.35
Langford testified that in the beginning of April, Marenkewicz came up to him behind his
truck and asked him if he had been discussing the union and he said, “Yes”. Marenkewicz then
told him that Respondent had the option to become union or not and the employees voted not to
become union and that Langford should not be talking about a union on the belt anymore. Prior 40
to this Langford had not made it known to Marenkewicz that he was a union supporter.
Generally the employees were permitted to talk about whatever they wanted.
It was not until July 23rd, that an issue arose concerning Langford’s conduct. Carmen
Stricker, who was a DHL employee, complained to Langford’s supervisor Jeske that on July 23rd45
Langford had called her a bitch and “flipped her the bird”. Stricker testified at the hearing that
Langford’s conduct was directed to her and had been occurring for some time. She testified that
JD(ATL)–39–08
5
she tried to avoid contact with Langford but that he persisted in this conduct. On July 25th,
Langford was called into Marenkewicz’s office and met with Marenkewicz and Jeske.
According to Marenkewicz, in the office Langford readily admitted that he had engaged in this
conduct and said that he meant no disrespect. He was told he would need to write a letter of
apology and refused. Marenkewicz testified that as he was discussing the need to address this 5
problem, Langford stood up and said before you get a chance to fire me, I quit and then left.
Marenkewicz telephoned Langford and attempted to get Langford to give him a letter spelling
out his version of what had occurred and after two unsuccessful attempts by Langford to e–mail
a letter, commencing on Saturday, July 28th, he hand delivered the letter to one of two female
personnel in the office. 10
Langford knew Carmen Stricker who was the DHL international package handler. He
worked with her on a daily basis. He testified that he thought he had a good relationship with her
as they would joke and say sarcastic things to each other and on several occasions he shared his
lunch with her when he returned from his route. She participated in the jokes he made and she 15
made comments back to him. Some of those comments were off–color. She never complained
to him about those conversations on the line. With respect to the incident in this case, on the
morning of July 23rd she came to the end of the conveyer belt and she was talking to a group of
four or five of the employees and she made a jokingly sarcastic comment to Langford and he
said, “Oh yeah! I got one for you” and “popped up my middle finger for her”. There were 20
several other employees present when this occurred. He testified that this exchange was not
unusual for the workplace. Two days later he returned from his route and he was called into the
office with Marenkewicz and Jeske. He thought it was because he had requested a day off. He
was told that it was brought to their attention that he “Flicked somebody off and they took
offense to it and it wasn’t to be tolerated.” He said, “Well it had to be either Jason or Carmen,”25
because he had flicked them both off that morning, jokingly. Marenkewicz told him it was
Carmen. They told him this was not to be tolerated and that he was going to be suspended and
they needed a letter of apology from him and they went on with their comments and he then said,
“Well, I’m suspended. I’m going home.” He then stood up and Marenskewicz told him to sit
down, that they were going to talk about this some more. He then said, “Well, I’m suspended. 30
I’m going home.” He then left and walked out the door. He then went through two sets of
doors, one open door and two closed doors and handed his keys to the company van to Bobby
Venable, the mechanic, and said that he guessed he would not need them tomorrow. He then left
quietly. At the time he left, his understanding was that he was suspended for five days and could
not return until he turned in the letter. Marenkewicz called him the next day and told him that 35
he should just write the letter and he could return to work. He then said okay and told
Marenkewicz he would have the letter by Saturday. He e–mailed the letter on Saturday. On the
26th of July, the day after the meeting in the office, he had a conversation with Marenkewicz and
Marenkewicz told him just give him the letter and he could come back to work as he needed the
letter to clear it with Randy, the DHL manager in charge of this branch, to get him back in the 40
building as it was DHL’s building. He wrote the letter and tried e–mailing it twice but
Marenkewicz told him he could not open it. Marenkewicz subsequently told him to hand deliver
it and he did so a day or two after this by giving it to one of the ladies in the office. The letter
reads as follows:
45
I acknowledge DHL has had a complaint regarding my conduct at work
that offended a fellow employee. Although I had no intentions to make this
JD(ATL)–39–08
6
employee feel uncomfortable, I know now that my behavior may have been taken
to be insubordinate, offensive, or even obscene. My behavior was in humor
although it may not have been interpreted as such. I did not wish to create an
uncomfortable environment for this employee. I hold no animosity towards her
and do not blame her for this situation. I also know now this conduct is 5
inappropriate for the work place. I will use better judgment and refrain from this
type of behavior in the future.
Sincerely,
D. Langford Jr.
10
Subsequently Marenkewicz told him he had read the letter and said he would have to run
it by Randy and that he also had to run it by Stricker. He had another conversation with
Marenkewicz who told him he would have to run it by supervisors Jeske and McMullen.
Marenkewicz kept postponing calling him back to work for over a week. Ultimately,
Marenkewicz said, “We no longer need your services. We’re able to get by without you”. 15
Langford testified that Marenkewicz had never either on July 25th or any other time said he quit
his job or that he had planned to quit his job. When he came in to obtain his paycheck on July
26th, he was told by Jeske that he must sign a form saying that he had quit or that he would not
receive his paycheck. He did not sign the form and did not receive his check. Prior to July 25th
he had never been disciplined. He also was never told that his work was not up to standard or 20
was not good.
The letter apparently did not satisfy Marenkewicz who testified that he had to consult
with his partner Charlie Helmes and to clear it with the Manager of DHL who has authority for
determining whether Respondent’s employees can be on the DHL property. Marenkewicz 25
testified that he did not want Langford fired as he was short of employees and he, in fact, had to
personally drive Langford’s route as a result of Langford’s absence. He testified further that
while driving Langford’s route he encountered customers who expressed dissatisfaction with
Langford’s attitude. While he was still pondering what to do with Langford, he hired another
driver with experience. Ultimately, Langford was told that there was no longer a need for his 30
services.
Carmen Stricker testified that she worked for DHL until three days prior to the hearing in
this case. As of the date of the hearing, she had been employed by B & C for a total of three
days. While working for DHL she came into contact with Langford as they both worked at the 35
belt line to receive and load packages for their respective employers. Stricker testified that for
some time she endured harassment from Langford who would direct vulgarity toward her by
calling her a bitch and he also gave her the finger or flipped her the bird saying “F…. you bitch”.
She testified she tried to avoid contact with Langford and would walk away when this would
occur but Langford persisted in this conduct. On July 23rd, Langford said, “F… you bitch” and 40
gave her the finger and on that day she complained to Jeske who was Langford’s supervisor. She
was subsequently asked by Respondent to provide a written statement of these incidents which
she did in August 2007. She was asked by Jeske and Marenkewicz if she wanted Langford fired
and she told them no. However, Langford was not permitted to work by Respondent any more
and would sit in his automobile on the DHL premises and was talking with supervisor 45
McMullen. This caused her concern and she asked if Langford could be banned from the
premises. She acknowledged that on occasion Langford had offered her part of his lunch that he
JD(ATL)–39–08
7
had not eaten at the end of the day and she had accepted the offer.
Peavey testified that up front toward the beginning of the belt the drivers were not
allowed to use foul language because the DHL employees were there and “you can’t swear
around them”. Randy (the head of DHL) told them not to use this kind of language around the 5
DHL employees. There were no employees other than Langford who were disciplined or told to
apologize for using off–color language or making gestures on the line. Peavey worked with
Carmen Stricker and the drivers joked with Stricker “all the time”. She observed interactions
between Stricker and Langford. They all joked around and ate Langford’s lunch. Stricker never
complained to her about Langford until after Langford left. Langford joked with supervisor 10
Kristi Jeske when she tried to get him to take a package by saying, “Oh maybe I should check
with my union rep first” and then he would laugh and Jeske walked away. He made these kinds
of comments every week. These conversations began in the spring of 2007 and “continued all
the time after that”. In the beginning of May 2007, she was approached by her manager Matt
McMullen who told her the employees were not allowed to talk about the union while on work 15
time and told her that employees had been fired for discussing the union. There were two
conversations and in one of them McMullen asked her if Langford “was the one starting the
union”. She told him she was not the one starting the union and did not want to get in trouble for
this. McMullen also told her that if she brought up the union again she could be fired. He then
talked to her another time and said he was not supposed to talk to her about the union and that he 20
was doing it as a friendly gesture to let her know this. He also told her that management was not
to talk about the “union” but should use the “U–word” instead. Prior to these conversations she
had kept her support of the union “secret”. She did not receive any other restrictions as to what
she could talk about, and she had not been told not to talk about personal matters. She and
Stephanie Huckins and Langford had joked about the union but did not have the union brought 25
in. The first notice she had of union activity was when the union’s letters started appearing in
their vans. The election was held the end of January. She was discharged and believed it was
because of her support of the union. She had never observed Langford calling Stricker the “B–
word”. She had seen Langford flipping off Stricker and others when joking in the morning. She
had not observed him in the evening because she came back at a different time than Langford. 30
She had never heard anyone complain about words or gestures made to them. She was told she
was discharged because of her driving record.
Former driver Heather Linseman was employed by Respondent from January 23, 2006 to
February 5, 2008. She testified that the drivers loaded their own packages, waited on the belt to 35
load packages on their truck and drove a company vehicle to deliver and pick up packages. She
worked with Langford and testified there was a friendly atmosphere in the loading area with a lot
of joking and use of foul language to one another and directed to the packages. The managers
and supervisors were aware of this shop talk and were sometimes involved in it. On one
occasion she called supervisor Jeske a “bitch” and there was no repercussion as a result. She 40
talked about a union with Langford and the employees engaged in conversations about a union
and complaints about their rate of pay, lack of raises and health insurance. These conversations
occurred two or three times a week. They never used the word “union” for fear of the
consequences if management became aware of these discussions. After July 25th, when
Langford no longer worked there she asked Jeske if Langford would be coming back and Jeske45
told her it would be up to Charlie, one of the two co–owners of the company. A few weeks later,
Linseman talked to Marenkewicz to see if Langford would be coming back and he told her it
JD(ATL)–39–08
8
would be up to Jeske and McMullen. No one ever told Linseman that Langford had quit. Within
a few weeks or so, another individual was hired and Linseman was told that Langford would not
be coming back. She never saw Langford direct any derogatory or inflammatory comments to
Stricker or “flip her off”. She never heard anyone say that Langford had quit his job or been
fired. However, Jeske told her that Langford had been “suspended”5
Kristi Jeske is the day supervisor for Respondent. She received a complaint from
Carmen Stricker that Langford was verbally abusive to her by “swearing and flipping her off
hand gestures.” Stricker had not complained about this before. Jeske denied that there was a lot
of profanity and crude language and inappropriate actions and hand gestures among the 10
employees in the area of the conveyer belt. She reported Stricker’s complaint to Marenkewicz.
She was present in Marenkewicz’s office when Langford was called in. Marenkewicz told
Langford that there was a complaint that Langford had been using improper language against
Stricker. Langford said he did not mean it disrespectfully but that he was only joking with
Stricker. He was asked to write a letter of apology and said no and walked out. Marenkewicz 15
did not tell Langford that he was discharged or suspended. Langford came back on Friday and
asked for his paycheck. She then asked him to sign a form verifying that he had voluntarily quit.
This is standard procedure when someone quits. Langford did not sign it. Langford did not tell
her that he had a letter of apology that he wanted to submit. Marenkewicz was not there at the
time. She did not give Marenkewicz Langford’s e–mail. Langford did not turn anything over to 20
her at this meeting such as his badge or the document she wanted him to sign. This was her last
contact with Langford. On cross–examination, Jeske testified that the word “suspension” was
not brought up during the meeting with Marenkewicz, Langford and herself. However, in her
affidavit she stated that either Marenkewicz or Langford mentioned suspension but that she did
not remember who did. When Langford refused to sign the statement that he had quit, she told 25
him he could not get his check until he signed the statement. She denied that she had heard
Langford swearing at other employees in the warehouse but she acknowledged that she had
heard Langford swear on the belt but not directed at other employees. She has on occasion heard
swearing by other drivers and has said “Please, no swearing on the belt”. However, this
swearing was not directed at anyone. She had not disciplined or suspended Langford or other 30
employees for swearing prior to the incident of July 23rd. Marenkewicz never told Langford that
he was suspended or fired.
Bobby Venable, a mechanic employed by Respondent, testified that on July 25, 2007, he
was asked by Marenkewicz to sit outside his office while Marenkewicz talked to Langford for 35
“moral support”. He was not aware of what took place inside Marenkewicz’s office as the door
was shut. When the door was opened Langford walked out, Langford was five to six feet away
from him. When Langford walked out the door, he heard him say, “Before you can fire me, I
quit”. Langford then walked out of the office area to the garage area. He followed Langford and
when they reached the garage area, he (Langford) “pitched the keys” to Venable and said, “Here40
Bob” and Venable caught the keys. There were no further comments. On cross–examination
Venable acknowledged that in his affidavit he stated that he heard Marenkewicz say he was
going to have to let Langford go and that Langford said, “What if I wrote a letter of apology and
apologized in person?” Venable testified also that in his affidavit he said that Marenkewicz was
planning on firing Langford for several months prior to the hearing from conversations he heard 45
three months before. Venable testified that Marenkewicz did not talk of firing Langford but that
he was going to have to do something because Langford was bringing down the morale of some
JD(ATL)–39–08
9
of the drivers and that there was talk on a daily basis about their vehicles. Venable placed this
talk as occurring in May 2007.
Matt McMullen was called as a witness on behalf of the Respondent. He was the night
time manager in 2007 when the events in this case took place. In his position he would meet with 5
the employees to check on how things had gone and whether there had been any problems during
the course of the day. He then went to help the employees on the loading dock. Langford had
some issues regarding his pay and felt that his job warranted an increase in pay. However, he
had no problems with Langford. McMullen testified that he never had any discussions with any
employees concerning the Union. He did not become aware of the union campaign until fall or 10
Christmas of 2007 when the employees signed union cards. He was not involved with the
incident leading up to Langford’s termination and was on vacation when these events occurred.
He did however, receive telephone calls from Langford after the incident on two occasions when
Langford called and threatened to sue.
15
Bruce Marenkewicz was called as a witness by both the General Counsel and the
Respondent. He is the co–owner of B & C Cartage along with Charles Helmes. B & C Cartage
is a contractor for DHL Worldwide Express and has responsibility for a contracted number of zip
codes for the delivery and pickup of packages for DHL and the return to the DHL facility.
Respondent’s trucks and base of operations are on the DHL facility premises. The Respondent 20
distributes an employee handbook to its employees. This handbook was in existence at the time
involved in this case from 2006 to 2007. The handbook contains a rule against the employees
discussing their pay or compensation.
Marenkewicz contended at the hearing that he did not discharge Langford but rather that 25
Langford quit on July 25th when he was called into the office and met with Marenkewicz and
Jeske. Marenkewicz had mechanic Bobby Venable sit outside the office when Langford was
called into the office because Langford had a history of a temper and he was concerned that
Langford might get physical as Langford’s demeanor was quite defensive. Marenkewicz
informed Langford of the complaint and asked him to tell him his side of the incident. Langford 30
said he was only joking with Stricker and admitted that his conduct was inappropriate. He asked
Langford to give him a letter of apology. Marenkewicz testified that he wanted the letter of
apology in order to demonstrate to the DHL manager that the matter had been addressed by
Respondent and to prevent Langford’s being banned from the building by DHL. Langford said
he would not write the letter of apology because it would be an admission of quilt. He told 35
Langford to write down his side of the incident so that he could have something in writing and
“we can be done with this”. Marenkewicz further testified that at that point Langford stood up
and said, “It doesn’t work that way”. Langford then opened up the door and Marenkewicz said,
“What are you talking about, Dan? Where are you going”, and Langford said, “I quit” and
walked out the door. Marenkewicz testified further that he did not tell Langford that he was 40
suspended and did not use the word “suspension”. Normally if an employee were suspended, an
incident report would be made and the employee would get a copy which would be signed by the
managers and witnesses. In this case there was nothing in his file because Langford was not
discharged. Marenkewicz was short–staffed and he did not want to fire Langford. He also did
not suspend Langford. He had several telephone conversations with Langford in which he told 45
Langford, he wanted a letter of apology. He was unable to open two e–mails that Langford
mailed to him. He did later receive the letter and he told Langford he would have to check with
JD(ATL)–39–08
10
Charlie Helmes the co–owner. He ultimately decided not to bring Langford back for several
reasons. He ran Langford’s route and several of his customers asked where the driver was and
he told them that Langford had quit and they then said, “Good” and stated that he was a
miserable guy with a bad demeanor and was negative. He then concluded that they did not want
him representing the company. He told Langford this.5
Marenkewicz testified that he never had any conversations with Langford about a union
or union activities. The first time he learned of anything involving the union was December
when Respondent received a notice in the mail that the employees had signed union cards. He
also never talked to Theresa Peavey, Stephanie Huckins or anyone else that worked for him 10
about a union. The subject of a union never came up.
On cross–examination Marenkewicz stated that he had been trying to decide whether to
bring Langford back or not. He did hire another driver who took Langford’s route the next
week. He did not receive the letter of apology from Langford until the following week. 15
Although Langford had quit on Wednesday, July 25th, and had refused to write him a letter of
apology, Langford did not make an attempt to e–mail him until the following Saturday.
Although he talked to Langford on the telephone on the Thursday and Friday following the
Wednesday when Langford had refused to write a letter of apology, Langford did not tell him
that he would write the letter. Nor did he say he wanted to come back to work or ask to return to 20
work.
Analysis and Conclusions of Law
The Confidentiality Rule25
Respondent’s co–owner Bruce Marenkewicz admitted at the hearing that the rule had
been in Respondent’s employee handbook from January 2006 until December, 2007. The rule
prohibits employees from discussing rates of pay or merit increases with each other. The
placement of restrictions on the rights of employees to discuss unions and their wages is 30
violative of the Act unless the restriction is found necessary to maintain production or discipline.
The discussion of wages is central to the employee’s rights to engage in self–organization.
NLRB v. Babock and Wilcox Co. 351 U.S. 105, 113 (1956); Koronus Parts, 324 NLRB 675, 694
(1977); Lafayette Park Hotel, 326 NLRB 824, 825 (1998). There was no evidence that
Respondent told employees that the rule would not be enforced or that no discipline would be 35
imposed for its violation. The non–enforcement of an invalid rule as is involved in this case does
not obviate the need for the imposition of a remedy. SMI of Worcester, Inc, 271 NLRB 1508,
1509 (1984). The mere maintenance of the rule has a chilling effect on the exercise of
employees’ rights under Section 7 of the Act. Lafayette Park Hotel, supra at 825; Amtech Inc.,
342 NLRB 1131, 1142 (2004). I find that Respondent violated Section 8(a)(1) of the Act by the 40
maintenance of this rule.
The Interrogation of Danny Langford
I credit the testimony of Langford that in the beginning of April 2007, Marenkewicz 45
came up to him behind his truck and asked him if he had been discussing the union and that he
said yes. I credit Langford’s statement that Marenkewicz then told him that the employees had
JD(ATL)–39–08
11
voted not to become union and that Langford should not be talking about the union on the belt
line anymore. I observed Langford’s testimony to be straight forward and credible. I find that
the questioning of Langford by the co–owner of Respondent would reasonably tend to interfere
with, restrain or coerce Langford in the exercise of his Section 7 rights. Air Management
Services, Inc., 352 NLRB No. 145 slip op. at 7 (2008); Rossmore House, 269 NLRB 1176, 1177 5
(1984). The interrogation of Langford was unlawful as the employees were not openly
organizing and Langford was asked directly by Respondent’s co–owner if he had been
discussing a union. Langford had only occasional contact with Marenkewicz who did not inform
Langford why he sought the information and offered no assurances that no reprisals would be
taken if Langford admitted that he was discussing the union. The questioning of Langford was 10
coercive under the totality of the circumstances. T–West Sales and Service, Inc., 346 NLRB 118,
127 (2005); Performance Friction Corp., 335 NLRB 1117, 1126 (2001). I find that Respondent
violated Section 8(a)(1) of the Act by the interrogation of Langford concerning his union
activities and sympathies.
15
The Interrogation of Theresa Peavey
I credit the testimony of Theresa Peavey that in May 2007, supervisor McMullen told her
he needed to talk to her and then proceeded to tell her that the employees were not permitted to
discuss the union while they were working and also told her that an employee had been fired in 20
the past for discussing a union, and that McMullen also asked her if Langford was the one who
was calling the union and that McMullen also told her that if she brought up the union again, she
could be fired. I also credit Peavey’s testimony that about a week later McMullen spoke to her
again and apologized for bringing up the subject of the union and told her that he was unaware of
the rule regarding talking about a union and that he was not supposed to say “union” but was 25
only supposed to say the “U–word”. I also credit her testimony that McMullen told her he had
brought the union up as a “friendly gesture” to let her know that “she shouldn’t joke abound
about stuff like that.” McMullen initially testified at the hearing that he had no knowledge of
union activities of the employees prior to December 2007. However after being shown his
affidavit, he acknowledged that in early 2007 he and Langford discussed L & B employees and30
the fact that they were unionized and were paid more than Respondent’s employees. L & B was
another delivery contractor that worked on the belt line at the DHL facility. I found Peavey’s
testimony to be direct and detailed and credible. I note that Peavey is no longer employed by
Respondent and does not appear to have a stake in the outcome of this case although Peavey
testified that she was terminated by the Respondent and believes that this termination by 35
Respondent may have been in retaliation for her support of a union. However, I find that the
direct and detailed testimony of Peavey is truthful and I credit it over the generalized denial of
McMullen that he had any discussion with Peavey and I note that McMullen’s initial denial of
any conversation with the employees concerning unions was shown to be incorrect when he
acknowledged on cross–examination after being shown his affidavit, that he had in fact discussed 40
the union with Langford.
I find that McMullen’s interrogation of Peavey concerning the union activities of
Langford was inherently coercive and was violative of Section 8(a)(1) as was the implied threat
of the loss of her job for engaging in union activities and the admonishment to her against talking 45
about a union on working time as was McMullen’s statement that another employee had been
fired for discussing a union. McMullen offered no assurance to Peavey that no reprisals would
JD(ATL)–39–08
12
be taken against her. See Hoffman Fuel Co., 309 NLRB 327 (1992); Rossmore House, supra.
Under the totality of the circumstances the statement by McMullen that another employee had
been fired for union activity was inherently coercive. Jerry Ryce Builders, Inc., 352 NLRB No.
143. The admonishment against talking a bout a union on working time was also inherently
coercive, as the record disclosed that there was no such prohibition or restraint on discussions 5
about non–work related matters while working. Thus this prohibition against discussing union
matters was violative of Section 8(a)(1) of the Act. In re Jensen Enterprises, Inc., 339 NLRB
877, 878 (2003); Orval Kent Food Corp., 278 NLRB 402, 407 (1986).
The Discharge of Danny Langford10
The evidence establishes that the use of profanity, crude language and improper and lewd
gestures were openly tolerated by Respondent whose employee drivers working on the conveyer
belt line regularly engaged in this conduct. The evidence also establishes that in the spring of
2007, the employee drivers assigned to the belt line became interested in union activities and in 15
improvements in wages and benefits. This led to discussions among the employees concerning
the perceived advantages of becoming represented by a union. Although the employees were
only in a relatively early stage of organizational union activities, their activities in discussing
working conditions and wages and benefits did not go unnoticed by Respondent’s management.
This focused Respondent’s attention on Langford who was suspected of being the leading union 20
supporter and of calling the union. The questioning of Peavey by McMullen centered on the
union activities of the employees and the admonishment against union activity and the threat of
discharge for engaging in union activity. McMullen’s questioning of Peavey as to whether
Langford had contacted the union was in addition to Marenkewicz’s inquiring of Langford as to
whether he had been discussing the union. Langford’s admission that he had been discussing a 25
union triggered a warning by Marenkewicz that Langford should not discuss the union any
further. Bobby Venable’s unrebutted testimony that Marenkewicz had been concerned about
Langford’s hurting the morale of other employees and that Marenkewicz said he had to do
something to alleviate the situation demonstrates that the Respondent was motivated to get rid of
Langford. However, the Respondent did not take any action against Langford until a situation30
presented itself by Stricker’s complaint against Langford for his conduct toward Stricker. In
considering the versions of Langford, Marenkewicz, Jeske and Venable I find that the evidence
supports a finding that Langford left that meeting with the understanding that he was suspended
for five days as he testified. Although Marenkewicz, Jeske and Venable all testified that
Langford had quit it is notable that Jeske admitted that the word “suspended” came up during 35
this conversation after being confronted with her affidavit. Venable testified that although he
could only hear part of the conversation while he was outside the office of Marenkewicz, he also
heard Marenkewicz tell Langford that he would have to let him go and that Langford asked what
if he wrote a letter of apology and that Langford also said before you can fire me, I quit. I also
note that there were several telephone calls made during the next day to Langford from 40
Marenkewicz admittedly urging Langford to give him a letter of apology. This thus supports
Langford’s testimony that he was suspended by Respondent. It is also undisputed that Jeske
would not give Langford his paycheck until he signed a form stating that he had quit. Langford
refused to sign the form and his paycheck was withheld by Respondent. I do not credit
Marenkewicz’s testimony that he did not take Langford back after his alleged quit because of 45
criticism of Langford by Respondent’s customers that he heard when he ran Langford’s route in
Langford’s absence. I note that Marenkewicz admitted at the hearing that one of the reasons he
JD(ATL)–39–08
13
wanted the letter of apology was to protect the Respondent from adverse legal actions such as in
the instant case.
The General Counsel contends that Langford was suspended and discharged by the
Respondent. The Respondent contends that Langford quit rather than write a letter of apology to 5
Stricker on July 25th. General Counsel contends that the events that occurred after July 25 show
that Respondent’s contention is not supported by the evidence. Respondent’s supervisor, Kristi
Jeske testified that Langford quit. She also testified that the word “suspension” was not used at
the July 25th meeting. However, upon being confronted with her affidavit she admitted that the
word “suspension” was used but testified that she did not know whether Langford or 10
Marenkewicz had used this word. Mechanic Bobby Venable initially testified that he was
outside Marenkewicz’s office door and that Langford walked out and said that he quit.
However, upon being confronted with his affidavit, Venable admitted that he had stated in his
affidavit that he heard Marenkewicz tell Langford he had to let him go. This is inconsistent with
Marenkewicz’s contention that he did not intend to fire Langford. Moreover, this is particularly 15
significant in view of Venable’s other testimony that on a prior occasion Marenkewicz said he
had to do something with Langford because he was hurting the morale of the other drivers. With
respect to the testimony of both Marenkewicz and Venable that Venable was outside the door of
the office, I credit it and find that Langford is incorrect in this regard. However, I do not find it
to be determinative of the issues in this case. In either case, the testimony of Venable is 20
supportive of the fact that Marenkewicz told Langford he had to let him go. Additionally, the
events following this meeting support Langford’s contentions in this regard. It is clear that
Langford believed he had been suspended for five days and could return to work after he wrote a
letter of apology. However if he had quit, Langford would not have made three attempts to
deliver the apology to Marenkewicz. It is undisputed that Marenkewicz continued to request the 25
letter of apology. The evidence supports a finding that Respondent was continuing to press
Langford for the apology with the assurance that Langford could return to work once
Marenkewicz received the letter from Langford. However after receiving the letter, Respondent
continued to put Langford off by naming different individuals whose permission was necessary
to reinstate Langford. Marenkewicz admitted at the hearing that he wanted the apology to 30
uphold the Respondent’s position if a legal challenge concerning Langford’s discharge occurred.
I find that the Respondent’s solicitation of the apology was a sham to permit the Respondent to
assert the apology as a defense to Langford’s discharge. It should be noted that Respondent did
not raise as a defense in this case that Langford had been discharged for his conduct. Rather
Respondent contended that Langford had quit.35
After a review of the testimony of Langford, Marenkewicz, Jeske and Venable, I am
convinced that Marenkewicz told Langford that he had to let him go as testified to by Venable
and that Langford spontaneously responded to this imminent discharge by saying before you can
fire me, “I quit” as testified to by Jeske and Venable. This statement by Langford was his 40
attempt to mitigate the adverse impact of the announced discharge. However, this statement by
Langford does not change my conclusion that Langford was wrongfully discharged as
established by the General Counsel.
I find that the reasons given for the discharge of Langford were pretextual and support an 45
inference that the discharge was in retaliation for Langford’s union activity. See Hialeah
Hospital, 343 NLRB 391, 394 (1994) regarding retaliatory discharge. See Cox Communications
JD(ATL)–39–08
14
Gulf Coast, LLC, 343 NLRB 164 at 164 (2004) finding that the reason for a discharge was
pretextual and supported an inference that the discharge was in retaliation for the employee’s
union activity, citing Shattuch Denn Mining Corp., v NLRB, 62 LRRM 2401, 2404 (9th Cir.
1966) and Limestone Apparel Corp., 255 NLRB 722 (1981).
5
In the event a Wright Line analysis is necessary, I find that under Wright Line, 251 NLRB
1083 (1980), the General Counsel has established that Langford was engaged in protected
concerted activities, that the employer had knowledge of Langford’s protected concerted
activities, that the Respondent had animus against the union as established by the Section 8(a)(1)
violations committed by Marenkewicz and McMullen and by the animus demonstrated by the 10
testimony of Langford, Peavey, Huckins, and Linseman. I find that the Respondent took adverse
action against Langford by its discharge of Langford and that a nexus or link between the
protected activities and the adverse action underlying motive has been established. I find that the
burden has shifted to the Respondent to prove, by a preponderance of the evidence that it took
the action for a legitimate non–discriminatory business reason. In Fluor Daniel, Inc., 304 NLRB 15
970 (1991) the Board held that once a prima facie case has been established that the protected
conduct was a motivating factor in the employer’s decision, the burden shifts to the employer to
demonstrate that the same action would have taken place even in the absence of the protected
conduct. I find that the Respondent has failed to rebut the prima facie case by the preponderance
of the evidence. I find that Respondent violated Section 8(a)(1) and 3 of the Act thereby.20
Conclusions of Law
1. Respondent is an employer within the meaning of Sections 2(2), (6) and (7) of the
Act.25
2. Respondent violated Section 8(a) (1) of the Act by maintaining an overly broad
rule in its policies and procedures manual prohibiting employees from discussing their wages
and merit increases in pay with each other.
30
3. Respondent violated Section 8(a) (1) of the Act by the coercive interrogation of
Danny Langford about his union activities.
4. Respondent violated Section 8(a) (1) of the Act by its interrogation of Theresa
Peavey by its supervisor Matt McMullen about the union activities of Langford, and by 35
McMullen’s impliedly threatening Peavey with the loss of her job for engaging in union activity
and by admonishing her about talking about a union on working time.
5. Respondent violated Section 8(a) (1) and (3) of the Act by terminating Langford
in retaliation for his union activity.40
6. The aforesaid actions in conjunction with Respondent’s status as an employer
affect commerce within the meaning of Sections 2(2), (6) and (7) of the Act.
JD(ATL)–39–08
15
The Remedy
Having found that the Respondent has engaged in the above violations of the Act, it shall
be recommended that Respondent cease and desist therefrom and take certain affirmative actions
designed to effectuate the policies and purposes of the Act and post the appropriate notice. It is 5
recommended that Respondent cease the unlawful interrogations of its employees and the
issuance of the unlawful warnings and discharge and rescind the discharge of Danny Langford
and offer immediate reinstatement to Danny Langford. He shall be reinstated to his prior
position or to a substantially equivalent one, if his prior position no longer exists. He shall be
made whole for all loss of backpay and benefits sustained by him as a result of the Respondent’s 10
unfair labor practices. The backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987) at the “short term federal rate” for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. Section 6621.
15
On the findings of fact and conclusions of law herein, and on the entire record, I issue the
following recommended2
ORDER
20
The Respondent B & C Cartage, Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Maintaining an overly broad rule in its policies and procedures manual 25
prohibiting employees from discussing their wages and merit increases in pay with each other.
(b) Interrogating its employees abut their union activities and those of their
fellow employees concerning their engagement in union activities and impliedly threatening
employees for engaging in union activities and admonishing employees against talking about a 30
union on working time.
(c) Discharging its employees in retaliation for their engagement in union
activity.
35
(d) In any like or related manner interfering with restraining or coercing its
employees in the exercise of their rights under Section 7 of the National Labor Relations Act.
2. Take the following affirmative actions to effectuate the policies of the Act:
40
(a) Within 14 days from the date of this Order rescind the discharge of Danny
Langford and offer him full reinstatement to his former job or if the job no longer exists, to a

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
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(ATL)–39–08
16
substantially equivalent job without prejudice to his seniority or any other rights or privileges
previously enjoyed, and expunge the unlawful discharge from its files.
(b) Make whole Danny Langford for any loss of earnings and other benefits
suffered as a result of the discrimination against him, with interest.5
(c) Preserve and within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of the records if stored in 10
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post copies of the attached
notice marked “Appendix”3 at its facility in Flushing, Michigan. Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent’s 15
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 days in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility 20
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since April 2006.
(e) Within 21 days after service by the Region, file with the Regional Director 25
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated at Washington, D.C., November 14, 2008.
30
__________________________________
Lawrence W. Cullen35
Administrative Law Judge

3 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–39–08
17
APPENDIX
NOTICE TO EMPLOYEES
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain an overly broad rule prohibiting our employees from discussing their
wages and merit increases in pay with others.
WE WILL NOT interrogate our employees concerning their engagement in union activities and
sympathies in support of unions.
WE WILL NOT impliedly threaten our employees with the loss of their jobs for engaging in
union activities and will not admonish them about talking about a union on working time.
WE WILL NOT discharge or discipline our employees because of their engagement in union
and other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees
in the exercise of their rights under Section 7 of the National Labor Relations Act.
WE WILL within 14 days from the date of the Board’s Order rescind the unlawful discharge of
Danny Langford and offer him reinstatement to his former job or if that job no longer exists, a
substantially equivalent job, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make him whole for any loss of earnings and other benefits as a result of the
discrimination against him, with interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Danny Langford and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the unlawful actions will not be used
against him in any way.
JD(ATL)–39–08
18
B & C CARTAGE, INC.
(Employer)
Dated:_______________ By:_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret–ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue – Room 300 – Detroit, MI 48226–2569
(313) 226–3200, Hours: 8:15 a.m. to 4:45 p.m.
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, (313) 226–3244