DHL Express, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 21, 2007

09-CA-043277 (N.L.R.B. Jun. 21, 2007)

JD–42–07
Wilimington, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DHL EXPRESS, INC.
and Case No. 9–CA–43277
AMERICAN POSTAL WORKERS UNION
AFL-CIO
Jonathan D. Duffy, Esq., for the General Counsel.
David A. Kadela and Jenna S. Barresi, Esqs.
(Littler Mendelson, P.C.), Columbus, Ohio
for the Respondent.
Anton G. Hajjar and Jennifer E. Ku, Esqs.
(O’Donnell, Schwartz & Anderson, P.C.),
Washington, D.C. for the Charging Party.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Cincinnati,
Ohio, on May 2 and 3, 2007. The charge was filed on November 24, 2006 and the General
Counsel filed a Complaint on April 6, 2007.
The case arises out of an organizing campaign by the American Postal Workers Union
(APWU; “the Union”) at a very large private airport owned and operated by Respondent, DHL
Express, in Wilmington, Ohio, which is located between Cincinnati and Columbus.
Respondent’s business is the shipping of mail and freight both domestically and internationally.
In September 2006, the Union filed a petition to represent approximately 377 of
Respondent’s employees working in Building F at the Wilmington airport, which Respondent
designates as its “Gateway” operation. In response to the Union’s petition, Respondent
contended that the only appropriate bargaining unit is a wall-to-wall unit including 91 employees
in Building 11 of the airport, who work in its Shipment Recovery Center and International
Services departments. The Regional Director of Region 9 agreed with the Respondent in his
Decision and Direction of Election issued on November 3, 2007, Case 9–RC–18108. 1
A representation election was scheduled for November 30, 2006. The election ballots
would have given employees a choice of representation by the Union, representation by the
International Brotherhood of Teamsters, which was also trying to organize the bargaining unit,
and no collective bargaining representative. The election was cancelled due to the filing of the
instant charges, which allege a number of violations by Respondent of Section 8(a)(1) between
September and November 16, 2006.

1 As requested by the Respondent, I take administrative notice that the Board denied the
Union’s request for review of the Regional Director’s decision on November 29, 2006.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, a corporation, receives and distributes mail and freight at its airport facility
in Wilmington, Ohio. It annually performs services valued in excess of $50,000 in States other
than Ohio. Respondent admits and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Union, the American Postal Workers
Union, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Complaint Paragraph 5(a): Respondent distributes a memo to employees in September 2006
informing employees that if they select the Union as their collective bargaining representative,
their wages, benefits, and working conditions will be frozen pending the outcome of negotiations
for a collective bargaining agreement.
In September 2006, Respondent distributed to its employees a memorandum, GC
Exhibit 2, entitled, “THE APWU: What you should know about this union.” The second page of
the memo contained the following two paragraphs:
What is Collective Bargaining?
You should understand that even if you were to sign an authorization card, and
ultimately vote for a union under the National Labor Relations Board’s election
procedures, you would not be voting for a wage increase or any other thing that
the union may have promised. The only thing decided by the employees through
a NLRB vote is whether they want the union to speak for them in collective
bargaining. There is often a misconception that there will automatically be a
contract between an employer and the union, but the fact is that the day after the
union is voted in, nothing changes. Actually, all of your wages, benefits, and
working conditions would be frozen pending the outcome of negotiations.
This would only be the beginning of contract negotiations—a process that can
take a very long time. Also, keep in mind that if the APWU were voted in, DHL
would only be obligated to sit down and bargain with the union in good faith. The
Company would not, however, be under any legal obligation to agree to any
specific union proposal that it did not think would be in its own best business
interest.
The next section was entitled “Will a Collective Bargaining Agreement be better than
what I have today?” It informed employees that they can lose benefits through collective
bargaining.
During bargaining, wages and benefits can go up, but they can also stay the
same, or even go down. One reason employees can lose in collective bargaining
is that unions often trade employee benefits to get an employer to agree to
something important for the union.
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Unions often try to negotiate:
Automatic dues deduction from employee paychecks
An agreement that the employer will send the dues deducted directly to the
union.
Required union membership or payment of a monthly dues equivalent as a
condition of continued employment.
Allow special privileges for union stewards.
Complaint paragraph 5(c)
Complaint paragraph 5(c) alleges that Carla Ford, one of Respondent’s supervisors,
violated Section 8(a)(1) during a meeting in September 2006, in which the aforesaid memo was
distributed to 15-20 employees who reported to her. This allegation rests on the testimony of
Jennifer Morris, a pro-union employee who worked under Ford until April 2007.2
Morris testified that when distributing the memo, Ford spoke to employees about its
contents. According to Morris, Ford said that if employees selected the Union that during
collective bargaining there would be no step increases, that wage increases would be frozen.
Morris also testified that Ford said that employees would not be able to change their health
insurance, even during the open enrollment season, and that vacation benefits would not
accrue.
Respondent has a step increase schedule for Wilmington employees. Essentially, if
employees are performing satisfactorily, they receive a 50 cent per hour increase after 6 months
of employment and periodic increases thereafter until they reach a maximum hourly wage, GC
Exh. 3.
Ford testified that in response to an employee’s question about what would happen to
wages during contract negotiations, she replied that everything would stay as it is. She testified
that she did not recall using the word “frozen.” Ford then testified that Jennifer Morris
challenged her on the issue of whether wages would be “frozen” and she replied that, “I didn’t
say it was frozen. Everything’s just staying as it is (Tr. 370).” Ford denied saying anything
regarding the effect of unionization on vacation accrual or employees’ opportunities to change
their health insurance coverage during open enrollment. On cross-examination, she conceded
she did not have complete recall as to what was said at the meeting.
Morris gave an affidavit to a Board agent on November 8, 2006, R. Exh. 1.3 This
affidavit is consistent with her testimony as to what Ford said with regard to step increases but
includes nothing about vacations accruals or health insurance.4 I credit Morris’ testimony that
Ford told employees that there would be no step increases during contract negotiations and
discredit it with regard to the other benefits.

2 Respondent terminated Morris for absenteeism in April 2007.
3 Thus, Morris gave the affidavit 5 months before she was discharged. She also gave a
second affidavit in December 2006, which was not entered into this record.
4 Respondent at page 20 argues that Morris should not be credited because her affidavit
does not state that Ford used the word “frozen.” It does, however, relate that Ford told
employees that they would not get step increases until a contract was negotiated and ratified.
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Ford was working from Respondent’s memo, GC Exh. 2, when she was talking to
employees. Morris’ account of what Ford stated is consistent with the memo. The memo does
not mention the nuance regarding regularly scheduled evaluations and raises. There is no
evidence that Ford knew on September 15, that maintenance of the status quo required
Respondent to continue its practice of granting wage increases according to fixed criteria at
predictable intervals.5 I therefore find that Ford followed the memo and told employees what
Morris testified she said.
On the other hand, if Ford had mentioned a freeze regarding vacation accruals and
health benefits, I believed Morris would have mentioned it in her affidavit. Thus, I credit Ford’s
testimony that she did not address these issues.
Complaint paragraph 5(d): Respondent, by supervisor Rob Darner, threatened that it would no
longer have flexibility in enforcing work rules if the Union was voted in.
The vast majority of bargaining unit employees work nights, starting work anywhere from
10:00 p.m. to midnight and working until 4:00 or 4:30 a.m. One evening in October 2006,
James Hamilton, a unit employee and open union supporter, was five minutes late getting to his
work station due to a delay in getting from the facility’s main gate on a company bus. Hamilton
testified that during the evening, he was talking about the Union with his supervisor, Rob
Darner. At some point, Darner told Hamilton that he did not mark him down as tardy, but that if
the Union wins, he would not be able to be as flexible.
Darner did not testify and I conclude that Hamilton’s testimony is completely credible.
The only hole in his testimony occurred during this exchange on cross-examination:
Q. Is it just as likely that Mr. Darner said that if a union [comes in] here I might
not be able to do—I might not have the flexibility?
R. I don’t remember the exact wording?
I find that there is no significant difference between “would not have the flexibility” and
“might not have the flexibility.” Respondent relies on CPP Pinkerton, 309 NLRB 723 (1992) in
arguing that since Darner may have phrased his statement as only a possibility, it did not violate
Section 8(a)(1). CPP Pinkerton is easily distinguishable in that the employer’s agent in that
case was making a prediction about what a third party might do if employees organized. This
prediction was based on what the Board deemed to be an objective basis, not what the
Respondent might do. Darner was simply threatening Hamilton with action this Respondent
might take in the event of unionization—without any objective basis for the statement.
I credit Hamilton’s testimony without regard to the fact that Darner did not testify.
However, I also draw an adverse inference from Respondent’s failure to call Darner, who is still
its employee, that he intended, and in fact clearly conveyed to Hamilton that if employees

5 When an employer has an established practice of granting wage increases to fixed criteria
at predictable intervals, a discontinuance of that practice during collective bargaining
negotiations, constitutes a change in the terms and conditions of employment. Such a change,
absent overall impasse on bargaining for an agreement as a whole, violates Section 8(a)(5) and
(1) of the Act, Daily News of Los Angeles, 315 NLRB 1236, 1237-41 (1994) enfd. 73 F. 2d 406
(DC. Cir. 1996); Rural/Metro Medical Services, 327 NLRB 49 (1998).
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selected the Union as their collective bargaining representative, Respondent’s work rules would
be more strictly enforced.6
Complaint Paragraph 5(e): alleged violations by Steve Crowthers.
Complaint paragraph 5(e) is supported solely by the testimony of former employee
Heath Martin, who was terminated for absenteeism in November 2006. Martin testified that
Steve Crowthers, Respondent’s Senior Operations Manager in the Imports Division, saw him
one night in October 2006 wearing union paraphernalia and asked him if he was supporting the
Union. Then Martin testified that Crowthers engaged him in conversation and told him that if the
Union prevailed that wages would be frozen. Crowthers testified that he never had any
discussion with Martin about the Union or wages being frozen. I find Crowthers’ testimony to be
at least as credible as Martin’s and thus dismiss these allegations of the Complaint.
The allegation in paragraph 5(e)(iii) concerns what transpired at a company meeting on
November 8, 2006. Respondent conducted four series of meetings for its employees regarding
the Union campaign. These series were held on October 25, November 8, November 15 and
November 28. On each of these dates individual meetings for different groups of employees
were conducted in several sessions prior to the start of night operations and several sessions in
the early morning of the next day, after the business operation had ended.
At all the sessions on October 25 and November 8, the only speaker was the Director of
Respondent’s Gateway operation at Wilmington, Tom Roksvag. Each meeting session on
these dates was limited to about 20 minutes each, followed by a five minute break. At the
beginning of each session Roksvag announced there was insufficient time for him to entertain
questions but that there were question and answer sheets at each seat for employees to write
down any questions or concerns they might have.
At the November 8 sessions, Roksvag used a power point presentation while speaking
to address the Regional Director’s Decision and Direction of Election and an AWPU flyer. This
union flyer was critical of the Region’s decision and the positions taken by Respondent
regarding the scope of the bargaining unit. Heath Martin testified that he did not hear Roksvag
say that there would be no questions and that therefore he made comments and asked
questions during Roksvag’s presentation. He did not testify that he raised his hand and/or was
recognized by Roksvag.
These comments apparently concerned testimony Roksvag had given at the
representation hearing bearing on the interaction between Gateway employees and employees
from Building F, who the Regional Director found to be part of an appropriate bargaining unit.
After a while, Steve Crowthers came over to Martin and told him to be quiet and to write down
any question he had and that they would be answered later.
Crowthers testified that he was standing in the back of the room while Roksvag spoke
and heard someone in the front row heckling Roksvag. He walked over to the person, who he

6 Respondent argues at page 20 of its brief, at note 16, that an adverse inference cannot be
drawn because the record does not establish that Robert Darner is still a supervisor. At Tr. 204,
James Hamilton testified that in the fall of 2006 Darner and his current supervisor, Bruce Morris,
simply traded places. From this testimony, I infer that Mr. Darner is still a supervisor. I would
also note that in the cases cited by Respondent in note 20, the former supervisor was no longer
an employee of the respondent employer, a situation distinguishable from the instant case.
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recognized as Heath Martin, and told him that if he had a question, to write it down, but that if he
continued his heckling Roksvag, he’d remove Martin from the room. Crowthers testified that
immediately after the meeting, he had a brief discussion with Martin in which he verbally
reprimanded him for interrupting Roksvag, but had no other conversations with Martin.
Martin testified that later in the evening, Crowthers confronted him and told him that if he
ever showed disrespect to Roksvag again, he would lose his job. Crowthers testified that he
had no contact with Martin other than at the meeting and immediately afterwards.
If I were to credit Martin’s testimony, Crowther’s threat would violate Section 8(a)(1). An
employee’s unsolicited and even disruptive comments at a company meeting regarding
unionization do not lose the protection of Section 7 unless they are far more egregious than
those made by Martin, Anheuser-Busch, Inc., 337 NLRB 3, 10-11 ((2001); F.W. Woolworth Co.,
251 NLRB 1111, 1111-1115 (1980). For example, had Martin persisted to the point that
Roksvag could not continue with his presentation, such conduct might lose the protection of
Section 7. Here there is no such evidence and Martin stopped making comments after
Crowthers spoke to him. However, I find that Martin’s testimony about his conversations with
Crowthers, except where corroborated by Crowthers, is insufficiently reliable to be credited.
Martin also testified that sometime between November 8 and November 14, when he
was terminated, Crowthers overheard Martin telling his immediate supervisor that he was
running late. According to Martin, Crowthers told him that Respondent was able to work with
him on his attendance, but would not be able to do so if employees selected the Union. 7
Crowthers denies that this conversation ever took place. I credit Crowthers’ testimony as I find
Martin’s account to be very contrived. Therefore, I dismiss this allegation.
Statements by Thomas Roksvag at the November 8 meeting sessions:
Complaint paragraph 5(b).
The General Counsel alleges that at the November 8 meeting sessions, Thomas
Roksvag, the Director of Respondent’s Wilmington Gateway, violated Section 8(a)(1) by telling
employees that everything would be frozen until a contract was negotiated. This allegation is
supported solely by the testimony of Robert Storer, a current DHL employee.
Storer testified that he attended three meetings conducted by Roksvag regarding the
Union. According to Storer, at the end of the second meeting, an unidentified employee raised
his hand and asked if it was true that benefits and wages would be frozen during “this time
period of deciding whether you wanted to bring a union in or not.”8 Storer recalled Roksvag
answering:
He said [they] would be frozen at that period up till the decision was made and if the
decision was made of no union then everything would go back to the way it was and the
increase would continue to come and so on…

7 Martin was present in the hearing room throughout the trial as the General Counsel’s
representative. He testified that his recollection of this incident was refreshed by hearing the
testimony of a witness on the first day of the hearing (James Hamilton). The General Counsel
moved to amend the Complaint and I granted this motion over Respondent’s objection.
8 Storer testified that the questioner was not Heath Martin (see discussion of Complaint
paragraph 5(e)) and that Martin did not attend the same November 8, meeting that he did.
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Q. Did he say what would happen if the decision [was] that there would be a union?
A. Then it would still be continued frozen throughout negotiations.
Tr. 287 - 288.
Respondent proffered two witnesses who discussed what transpired at the November 8
meeting sessions. Thomas Roksvag testified that he told employees that due to the tight time
schedule no questions would be entertained and that employees who had questions should
write them down on a sheet of paper at their desks. He also testified that he did not discuss the
collective bargaining process or the affect on wages, benefits and working conditions of the
employees voting in a union. Further Roksvag testified that no employee asked a question at
the November 8 meetings, although he testified that at one session, he was interrupted by the
heckling of an employee (Heath Martin). Roksvag testified that he conducted the November 8
meeting sessions with the aid of a power point presentation, R. Exh. 2, and the Union’s “News
Flash”, R. Exh. 3.
Steve Crowthers, Respondent’s Senior Operations Manager for Imports, also testified
about the November 8 meetings. Crowthers testified that the November 8 meetings were all
conducted in the same fashion and on a strict time schedule which lasted 20-25 minutes. He
also recalled that employees were told at the outset that the meeting was not a question and
answer session and that they should write any questions on a piece of paper at their desks.
Respondent contends that I should not credit Storer’s testimony for a number of
reasons. First, it notes that other General Counsel witnesses, namely, Jennifer Morris and
James Vandiver testified that collective bargaining was not discussed by the Respondent until
the November 15 meeting. However, there is no evidence indicating that Storer attended the
same session on November 8, as Morris and Vandiver. On November 15, Storer attended an
evening session, while Morris and Vandiver attended an early morning session, making it quite
likely that he did not attend the same session on November 8. However, I am troubled by the
fact that the General Counsel did not produce any other witnesses to corroborate Storer’s
testimony, because a number of other employees should have been able to do so, if Storer’s
testimony was accurate.9
Secondly, Respondent points out that Storer’s testimony, that there were no employee
questions asked of Carolyn Fisher at the meeting he attended on November 15, is clearly
incorrect. Three other General Counsel witnesses, who appear to have attended the same
November 15 meeting, recalled Fisher fielding employee questions. While this establishes that
Storer’s memory is inaccurate in some respects, it is not conclusive, as he did accurately recall
other aspects of the November 15 meeting.10
Thirdly and most importantly, Storer testified that Roksvag did not use any props or
PowerPoint slides during his presentation on November 8. There is no reason for me not to

9 Storer testified that there were 50-100 people at this meeting. 50-60 would be consistent
with the size of the unit and the number of meetings.
10 Storer was also probably incorrect in testifying that the number of attendees at the Fisher
meeting was approximately the same as at prior meetings. Since Respondent had reduced the
number of meetings, the number of employees in attendance on November 15 would most likely
have been substantially greater than on November 8.
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credit Roksvag’s testimony to the contrary and I would think Storer would remember this if he
recalled anything about the November 8 meeting.
On the other hand, Storer’s testimony regarding the question to Roksvag is very specific
and is corroborated to some extent by James Vandiver’s testimony11 that at meetings Vandiver
attended, employees asked Roksvag questions even though they were initially told not to do
so.12
In addition to testifying about an employee’s question and Roksvag’s response, Storer’s
testimony differs from Respondent’s evidence in a number of other respects. He remembered
this meeting lasting about 45 minutes, longer than Respondent’s evidence indicates it lasted.
He also testified that there was not a piece of paper in front of him to write down any questions
he might have.
A factor in favor of crediting Storer is that Respondent had already told employees in
writing that wages and benefits would be frozen during contract negotiations. Moreover, it is not
clear when management learned that it would be best not to use this terminology. There is a
suggestion that they might have become of aware of the problem with the term “frozen” when
Carolyn Fisher arrived at Wilmington on November 14.
Storer appears to have been far less active in support of the Union than most of the
General Counsel’s witnesses and as a current employee would have a substantial motivation to
testify truthfully to avoid retaliation in the future.13 Finally, Roksvag and Crowther are even
more interested parties in the outcome of this case than is Storer.
Nevertheless, in the final analysis, Storer’s failure to recall the power point
demonstration, leaves me with enough doubt as to the reliability of his recollection of what
occurred, that I am unable to credit his testimony, Thus, I dismiss Complaint paragraph 5(b).
Carolyn Fisher’s talk at the November 15-16 employee meetings, Complaint paragraph 5(f).
Respondent conducted five meeting sessions for employees on November 15-16, 2006.
the first session started at about 10:00 p.m., a second session at 11:15 p.m.; a third at about
4:00 a.m. and a fourth at about 5:15 a.m. A fifth session was conducted at about 11:00 a.m. for
Respondent’s day shift employees.

11 However, Vandiver’s recollection of the events in November 2006 wasn’t very good either.
12 It is not absolutely clear whether Storer attended the same meeting session on November
8, as any of the other General Counsel witnesses. The only evidence that all the meetings on
November 8, were conducted in a virtually identical manner, with the exception of the Heath
Martin outbursts, is the testimony of management witnesses Roksvag and Crowther.
13 The testimony of current employees which contradicts statements of their supervisors is
likely to be particularly reliable because these witnesses are testifying adversely to their
pecuniary interests. Flexsteel Industries, 316 NLRB 745 (1995); Gold Standard Enterprises, 234
NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961). Thus, a witness’ status
as a current employee may be a significant factor, but it is one among many which a judge
utilizes in resolving credibility issues. See, e.g., Farris Fashions, 312 NLRB 547, 554 fn. 3
(1993), enfd. 32 F.3d 373 (8th Cir. 1994); Circuit-Wise, Inc., 309 NLRB 905, 909 (1992).
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Thomas Roksvag started each meeting by introducing Carolyn Fisher, who had been
hired by DHL as its Director of Labor Relations only a few weeks previously. Fisher, who then
conducted the meetings, had held a similar position with Coca-Cola Enterprises after spending
several years a management attorney practicing labor law. Each meeting was conducted in a
similar, but not identical fashion. Fisher did not read from a script. The General Counsel’s
evidence concerns only two of the sessions, 10:00 p.m. (witnesses Grant, Hyden, Hamilton and
Storer) and the 5:15 a.m. meeting (witnesses Jennifer Morris, Rebecca Vandiver and James
Vandiver).
Fisher discussed similarities between Coca-Cola’s bottling and distribution operations
and DHL’s operations. Then she told the employees about a Public Broadcasting program
about “noodling,” a way in which some people catch catfish by letting the fish bite their bare
hands. She used this story to communicate to employees that they may not know what they are
getting into if they choose to be represented by the Union.
Fisher went on to discuss the election process, telling the employees that there would be
three choices on their ballots; the Union, No Union and the International Brotherhood of
Teamsters. She described how to mark ballots and encouraged employees to vote by informing
them that if they did not want the Union and did not vote, the Union would represent them if it
received the majority of the votes cast.
Then Fisher told the employees that if the Union prevailed, all it won was the right to call
DHL and request bargaining. She emphasized that employees were not voting for any
particular collective bargaining agreement.14 Additionally, she said, Respondent was only
required to listen to and consider the Union’s proposals and was not required to agree to any of
them.
During each session, Fisher drew a pie chart, either on a white board or a flip chart.15 At
one or more of the sessions, one of the slices had a $ sign to represent wages; other slices
were labeled vacation, sick time, retirement and possibly “all other.” At none of the meetings
were any of the slices labeled corporate profits, executive salaries or “anything like that.” (Tr.
437-38). I credit the following testimony by Fisher with regard to what she told employees at
one or more of the meetings in connection with the pie chart:
…I said companies also prepare for negotiations and when companies prepare for
negotiations they create a negotiations budget.
And you know, I said every company has a budget and that budget isn’t, doesn’t
necessarily change from before negotiations to after simply because a union is on the
scene but the companies come into negotiations with a budget.
That’s when I drew the pie chart that’s been referenced on numerous occasions. And I
did just hand draw the pie chart on a white board.
There may have been, there may have been a couple of occasions when it was on a flip
chart but it, each time it was just a hand drawn circle and just real rudimentary making
pie pieces on the chart.

14 The Teamsters had been distributing one of its collective bargaining agreements amongst
unit employees.
15 Fisher testified that the flip charts were discarded after each session, Tr. 425.
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And I said let’s say, you know, the employer comes into negotiations and they have their
budget looking like this. And so there was a dollar sign for wages and you’ve got health
insurance and you’ve got vacation and sick time.
You’ve got retirement. And then I think I did one that was just all other.
And I said from the employer’s perspective, you know, if a union’s saying, hey we want
more in this area and you’re an employer with a budget, you’ve got to figure out where
that money is going to come from.
And so as the employer you might say okay they want more in this area, let’s see if we
can find that money in this area.
I then wrapped up that part of the presentation by saying I’m not, I can’t predict how
negotiations will turn out because no company can.
I also said the union can’t predict how negotiations will turn out because I said at the end
of the day you could end up with more, you could end up the same or you could end up
with less but nobody knows.
Tr. 413-14.
Fisher also told employees that negotiations could last a long time. Then she told the
employees that it would be very difficult for them to get rid of the Union once it had been
selected as their collective bargaining representative. She discussed the one-year prohibition
against decertification and the three year contract bar rule, thus informing employees that they
could be stuck with the Union for four years even if they were dissatisfied with it. She concluded
this part of her talk by opining that it was easier to get a divorce than get rid of a union.
Fisher testified that she never used the word “frozen,” and never told employees that
they would lose benefits in collective bargaining. She testified that she told employees that they
could gain, lose or stay the same as the result of the negotiations.
I credit Fisher’s testimony that she did not say wages would be frozen and that she told
employees that they could gain, lose or stay the same in collective bargaining. Her testimony in
this regard is corroborated by some of the General Counsel’s evidence, which is discussed
below.
Fisher spoke for approximately 30-40 minutes and then entertained questions. An
employee at one meeting asked Fisher about the effect of “Right to Work” laws. Fisher
responded by saying that Ohio was not a “Right to Work” state and therefore if employees
selected the Union, all unit members would either have to join or pay to the Union an amount
equivalent to that portion of the union dues attributable to the Union’s representational activities.
Another employee asked if wages would be “frozen” during collective bargaining
negotiations. Fisher testified that her response was that this was not the correct terminology;
that the correct term was “status quo,” that whatever employees had presently would continue
through contract negotiations, including step increases and vacation accrual. She also testified
that she discussed step increases at each meeting even though she did not know whether or
not DHL had an established practice of granting step increases. Despite this, she discussed
step increases because she felt it was the easiest way to explain to employees the meaning of
maintaining the “status quo.”
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I credit Fisher’s testimony regarding her discussion of step increases and the “status
quo.” I find that it is essentially corroborated by employee Jerry Hyden’s affidavit and Jennifer
Morris’ testimony on this subject.
General Counsel Testimony regarding the meetings conducted by Carolyn Fisher
on November 15-16.16
10:15 meeting
Robert Storer, who attended the 10:15 meeting on November 15, testified there were no
questions asked of Fisher at the meeting he attended. He also testified that on the pie chart
drawn by Fisher at the meeting he attended, she left some of pie slices blank. Other than that,
Storer’s testimony is consistent with Fisher’s.
Jerry Hyden testified that all the pie slices pertained to employee benefits. Hyden also
testified that there was a question and answer session in which Fisher told employees that
“wages and things’ would be frozen during negotiations. He specifically stated that Fisher did
not say that step increases would continue during bargaining. However, in an affidavit given to
a Board agent on December 5, 2006, Hyden wrote:
Ms. Fisher explained that but if it was status quo, then that meant if you were already
promised wage increases, then things would stay the same.
On the basis of this statement in Hyden’s affidavit, I credit Fisher’s testimony that she
explained to employees what status quo meant—using the example of step increases that were
a company’s established practice.
Donald Grant testified that in response to a question, Fisher stated the wages would be
frozen during contract negotiations. However, in an affidavit given a Board agent he said Fisher
did not use the word frozen, but that she did say wages would not increase during contract
negotiations. I therefore do not credit his testimony that Fisher told employees that wages would
be frozen.
Grant also testified about Respondent’s pay increases. Then he responded to the
following question:
Q. Okay, Did Ms. Fisher state whether those pay increases would continue during
negotiations with the Union?
A. She kind of left it open, but she –she didn’t—she did not say anything about
anything—any of the status quo. She—basically said that the wages would be frozen
when there was negotiations, and that—you know, people would be unhappy.
Tr. 98-99.
I view Grant’s testimony as corroborating Fisher’s testimony that she discussed step
increases as an example as what was meant by maintaining the status quo. Not only does his
testimony indicate that Fisher discussed step increases, his use of the term “status quo” when
he had not been asked about “status quo” strikes me as calculated. I infer Grant knew that

16 Fisher also spoke to employees on November 28. There is virtually no evidence in this
record about the November 28 meeting sessions.
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whether “status quo” was discussed was an issue in this case and that he knew it was important
to the Union’s case to establish that Fisher did not tell employees that Respondent would
maintain the “status quo” during negotiations or explain what the term meant. On cross-
examination, Grant conceded that he could not recall whether or not Fisher used the term
“status quo.” He also recalled that Fisher did say that in negotiations employees could end up
with more, less or the same.
5:15 a.m. meeting session, November 16, 2006
Jennifer Morris testified that she attended the 5:15 a.m. meeting. Her testimony is
largely consistent with Fisher’s. Morris testified that when Fisher drew the pie chart she told
employees that the pie can’t get bigger and that if one slice of the pie gets bigger, another must
get smaller. According to Morris all of the slices pertained to employee benefits; none were
labeled management salaries, advertising or capital improvements. I credit Morris’ testimony.
Fisher, who testified after Morris and who was in the courtroom when Morris testified,17 did not
specifically refute Morris’ testimony that Fisher told employees that the pie could not get bigger
and that gains from one piece of the pie must come from another slice. Additionally, Fisher was
unsure as to whether a slice was labeled “all other” at any of the meetings and did not testify
that a slice was so labeled at all the meetings.
Morris asked Fisher if employees would continue to get step increases at the time they
received their performance evaluations. Fisher responded by saying that employees would
continue to get such increases if they were not merit based, but not if they were merit based, Tr.
45-46.
I credit Morris’ testimony in this regard. Fisher denied using the term “frozen,” but her
testimony not only doesn’t refute Morris’ testimony regarding merit-based step increases; it
tends to corroborate it. Fisher testified:
I didn’t know at the time that DHL had a step increase program but I actually said, so for
instance if you have step increases that are already, that are automatic at a certain time
or if you have increases that where at certain time periods you’re scheduled to get an
increase, that continues.
Tr. 419.
Morris corroborated Fisher’s testimony that she told employees that as a result of
collective bargaining negotiations, employees could end up with more, less or the same
benefits.
Rebecca Vandiver, who attended the 5:15 meeting, recalled that one of the slices of the
pie chart contained a $ sign. She testified that Fisher did not explain what that meant. Vandiver
did not recall any other slices that did not pertain to an employee benefit.
James Vandiver, Rebecca’s husband, had a somewhat different recollection. He
recalled one slice as being for “the company.” On direct examination, James Vandiver testified
that when an employee asked whether the money for increased employee benefits could come
from the company slice, Fisher simply didn’t respond. On cross-examination, he testified that

17 Tr. 10-11.
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Fisher responded by saying that money for employees could not come from the company slice.
James Vandiver’s testimony is so confusing and at times contradictory that I give it no weight.
Analysis
Respondent violated Section 8(a)(1) on or about September 15, 2006, as alleged in Complaint
paragraphs 5(a) & (c).
An employer’s statement that wages will be frozen until a collective bargaining
agreement is signed violates Section 8(a)(1) of the Act if the employer has a past practice of
granting periodic wage increases, Jensen Enterprises, Inc., 339 NLRB 877, 884-5 (2003) and
cases cited therein; Alpha Cellulose Corp., 265 NLRB 177 (1982), enfd. mem. 718 F. 2d 1088
(4th Cir. 1983).
Respondent cites to two earlier cases, Montrose-Haeuser Co., 306 NLRB 377 (1992)
and Uarco, 286 NLRB 55 (1987) which appear to me to be inconsistent and materially
indistinguishable from Jensen Enterprises and the cases cited therein. In Montrose-Haeuser,
however, the employer, unlike Respondent DHL, specifically told employees that its past
practices of granting a Christmas bonus and annual merit increase would continue, while there
is no evidence that Respondent in the instant case ever gave such assurances.18
Nevertheless, the decisions in Uarco and Montrose-Haeuser suggest that an employer,
whose past practice includes regular scheduled wage increases, does not violate the Act if it
says wages will be frozen one minute and says that it will maintain the status quo the next—at
least so long as it does not violate the Act in other respects. Given the factual circumstances in
Jensen Enterprises, those cases appear to have been overturned subsilento by the Board.19
Thus, I conclude, pursuant to Jensen, that Respondent’s memo, GC Exh. 2 and Carla Ford’s
remarks on September 15, violated Section 8(a)(1).
Respondent, by Carolyn Fisher, violated Section 8(a)(1) by threatening employees that it would
be futile for them to select the Union as their collective bargaining representative.
An employer violates Section 8(a)(1) by threatening employees that attempts to secure
union representation would be futile, Wellstream Corp., 313 NLRB 698, 706 (1994). I find that
Respondent, by Carolyn Fisher, violated Section 8(a)(1) on November 15-16, 2006. Fisher’s
use of the pie chart clearly was intended to communicate to unit employees that they could not
gain anything by selecting the Union as their collective bargaining representative. A reasonable
person listening to Fisher would have clearly understood this to have been her message.

18 I do not equate Carolyn Fisher’s hypothetical example of step increases to have the same
import as a statement by Respondent that employees will continue to continue to receive their
step increases during collective bargaining negotiations. At the 5:15 a.m. meeting, her
response to Jennifer Morris’ question suggested that Respondent would not continue giving
merit based step increases during collective bargaining negotiations. Moreover, it has not been
established that every employee who received Respondent’s September 2006 memo heard
Fisher’s November 15-16 presentations. Attendance at these meetings was not mandatory, Tr.
325.
19 But see American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB No. 33
(2006) slip opinion at pages 1 and 2 n. 5 & 7, and pages 18-19. Neither the Board’s or Judge’s
decision in American Red Cross mentions the Jensen Enterprises decision.
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What was less clear from Fisher’s presentation was whether Respondent could not
increase any benefit without a corresponding decrease in a different benefit, or that
Respondent, was as a matter of policy, unwilling to do so. She certainly made no attempt to
convey to employees that there were objective facts beyond Respondent’s control that would
prevent it from increasing their benefits. A reasonable employee would have likely concluded
that Respondent was threatening employees with a negotiating posture, i.e., that employees
would not gain any increase in any benefit during collective bargaining negotiations without an
offsetting reduction in other benefits. I draw this inference because Fisher made no effort to
explain why money for increased employee benefits could not be come from sources other than
employee benefits. Indeed, at the 5:15 meeting, she told employees that the pie, which only
included employee benefits, could not get bigger.
While Fisher also told employees that they could gain, lose or stay the same as the
result of collective bargaining, I conclude that she did not cure, negate or minimize the impact of
her use of the pie charts on a reasonable employee, Noah’s New York Bagels, 324 NLRB 266,
267 (1997).20 The message from her pie chart presentation, i.e., that collective bargaining
would be a “zero sum game” was likely to be the most vivid and lasting impression left with
employees, regardless of what else Fisher told them. Indeed, given Respondent’s earlier
communication to employees that the Union would bargain away benefits for such items as
union security, Fisher’s pie chart presentation would likely leave employees with the impression
that if they selected the Union, collective bargaining would either end up without an agreement
or a loss of benefits for employees. I therefore that Fisher’s manner of utilizing the pie chart on
November 15-16, 2006 violated Section 8(a)(1) in threatening employees that selection of the
Union as their bargaining representative would be futile, NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969).21

20 An employer may cure the impact of an unlawfully coercive statement by making an
explicit, “unambiguous, specific” repudiation of it and assuring employees that no such violation
will occur again, Passavant Memorial Area Hospital, 237 NLRB 138, 139 (1978). However,
Respondent made no such repudiation of either its statements to employees that wages would
be “frozen” or the threats/suggestions of futility communicated to employees during Ms. Fisher’s
use of her pie charts.
21 Respondent’s brief cites Save Mart Supermarkets, 326 NLRB 1146, 1150 (1998) for the
proposition that it did not violate the Act in the manner it which it utilized the pie charts. In that
case, the Judge found that the employer’s use of a pie chart did not violate the Act. However,
the judge directed a second election on the basis of other objectionable conduct. The General
Counsel did not file exceptions to the Judge’s decision, but the Respondent and the Charging
Party did so. It is unclear from the Board’s decision whether the Charging Party’s objections
covered the Judge’s disposition of the pie chart issue, because the judge overruled other
objections as well. Well-established Board policy is to adopt an administrative law judge’s
findings to which no exceptions are filed. However such findings are not considered precedent
for any other case, Colgate-Palmolive Co., 323 NLRB 515 (1997) n. 1.
Even assuming that the Charging Party’s exceptions to the Judge’s decision in Save Mart
covered the pie chart ruling, it is not clear that his ruling on this issue was reviewed by the
Board which affirmed the decision. It may be that Board did not deem that the union was
aggrieved by the judge’s ruling regarding the pie chart. I view Save Mart as having very limited
precedential value on the pie chart issue.
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Respondent, by Carolyn Fisher, violated Section 8(a)(1) in threatening employees that their
wages would not increase during negotiations, as alleged in Complaint paragraph 5(f)(ii).
The Board with court approval has consistently found that merit increase programs that
are fixed as to timing are a term and condition of employment, notwithstanding an element of
discretion retained by an employer in setting the amount of such raises, Jensen Enterprises,
Inc., 339 NLRB 877, 878 (2003); Oneita Knitting Mills, 205 NLRB 500 n. 1 (1973). Accordingly,
if the Union won an election, Respondent could not lawfully discontinue its practice of granting
merit increases, until it bargained to agreement or impasse with the Union. Carolyn Fisher
responded to a question from Jennifer Morris at the 5:15 a.m. meeting session on November
16, by telling employees that they would not receive step increases during collective bargaining
negotiations, if these increases were merit based. This response amounted to a threat to
unilaterally deprive employees of benefits because they supported the Union. Thus, the
response violated Section 8(a)(1).
Respondent, by Rob Darner, violated Section 8(a)(1) by telling James Hamilton that if
employees selected the Union, he would have to strictly enforce Respondent’s rules requiring
employees to be prompt in reporting to their work station.
It is unlawful to threaten stricter enforcement of rules or policies because employees
may vote to have union representation. See, e.g., Miller Industries Towing Equipment, 342
NLRB 1074, 1082 (2004) (statement that rules would be enforced to the letter if the union came
in held violative), citing Mid Mountain Foods, 332 NLRB 229, 237-238 (2000), enfd. 269 F. 3d
1075 (D.C. Cir. 2001).
I find that Respondent, through supervisor Rob Darner, threatened James Hamilton with
stricter enforcement of its workrules regarding being late to his work station. As discussed on
page 4 herein, I find that Darner did so regardless of whether he said he would have to mark
Hamilton as tardy, or that he might have to mark Hamilton as tardy.
Summary of Conclusions of Law
1. Respondent violated Section 8(a)(1) by distributing to its employees in September
2006 a memorandum stating that wages, benefits and working conditions would be frozen
pending the outcome of negotiations if employees selected the Union as their collective
bargaining representative. This effectively constitutes a threat that employees will lose benefits
if they chose union representation.
2. Respondent, by Carla Ford, violated Section 8(a)(1) in September 2006, by telling
employees who reported to her that during collective bargaining there would be no step
increases and that wages would be frozen.
3. Respondent, by Rob Darner, violated Section 8(a)(1) by threatening employee James
Hamilton with stricter enforcement of Respondent’s work rules if employees selected the Union
as their collective bargaining representative.
4. Respondent, by Carolyn Fisher, violated Section 8(a)(1) in using a pie chart in such a
manner as to suggest to employees that selection of the Union would be futile in that
Respondent would not and/or could not grant employees any greater benefits than they enjoyed
without union representation.
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5. Respondent, by Carolyn Fisher, violated Section 8(a)(1) in telling employees that they
would not receive merit-based step increases during collective bargaining negotiations.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER
The Respondent, DHL Express, Inc., Wilmington, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with a loss of benefits, specifically periodic wage increases, if
they select the Union as their collective bargaining representative.
(b) Threatening employees with stricter enforcement of its work rules, if they select the
Union as their collective bargaining representative.
(c) Threatening employees with statements suggesting that it would be futile to select
the Union as their collective bargaining representative because Respondent would not and/or
could not grant them benefits that were more favorable than those employees already enjoyed.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its Wilmington, Ohio facility copies
of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
23 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 15, 2006.
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(c) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., June 21, 2007.
____________________
Arthur J. Amchan
Administrative Law Judge
JD–42–07
Wilimington, OH
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten our employees with loss of benefits, specifically the loss of periodic
wage increases if they select the Union as their collective bargaining representative.
WE WILL NOT threaten our employees with stricter enforcement of our work and/or disciplinary
rules if they select the Union as their collective bargaining representative.
WE WILL NOT threaten our employees with statements indicating that it would be futile to select
the Union as their collective bargaining representative by suggesting to them that collective
bargaining negotiations will not and/or cannot result in improved wages, benefits and/or working
conditions.
DHL EXPRESS, 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.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
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, 513-684-3750.