DHL EXPRESS (USA), INC.

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2013

09-CA-079842 (N.L.R.B. Apr. 22, 2013)

JD–27–13
Erlanger, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DHL EXPRESS (USA), INC.
and Cases 9-CA-079842
9-CA-080777
AMERICAN POSTAL WORKERS
UNION, AFL-CIO and AMERICAN
POSTAL WORKERS UNION,
CINCINNATI, AREA LOCAL 164
Daniel Goode, Esq.,
for the Acting General Counsel.
David Kadela, Esq.,
for the Respondent.
Lisa Manson, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Cincinnati, Ohio,
on October 24 and 25, 2012, and February 12, 2013. The American Postal Workers Union, AFL-
CIO filed the charge in Case 9-CA-079842 on April 30, 2012. The American Postal Workers
Union, Cincinnati Area Local 164 filed the charge in Case 9-CA-080777 on May 10, 2012.1 In
this decision I will refer to the International Union and the Local Union collectively as the
Union. The Acting General Counsel issued an order consolidating cases, consolidated complaint
and notice of hearing (the complaint) on July 31, 2012.

1 All dates are in 2012 unless otherwise indicated.
JD–27–13
2
The complaint alleges that on April 26, 2012, the Respondent discharged employee
Joshua Flick in violation of Section 8(a)(3) and (1) of the Act. The complaint also alleges that on
or about May 2, 2012, the Respondent, by Brandon Lewis, at its Erlanger, Kentucky facility,
violated Section 8(a)(1) of the Act by informing an employee, who was engaged in the
distribution of union literature in the Respondent’s cafeteria, that the employee could not 5
distribute the literature in that area and by instructing the employee that if he did not cease doing
so he would be escorted from the facility.
On the entire record, including my observation of the demeanor of the witnesses,2 and
after considering the briefs filed by the Acting General Counsel and the Respondent, I make the 10
following
FINDINGS OF FACT
JURISDICTION15
The Respondent, a corporation, is engaged in the international, interstate and intrastate
transportation of freight at its facility in Erlanger, Kentucky, the only facility involved in this
proceeding. Annually, the Respondent in conducting its operations performs services valued in
excess of $50,000 in states other than the Commonwealth of Kentucky. The Respondent admits, 20
and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5)
of the Act.
ALLEGED UNFAIR LABOR PRACTICES25
Background
The Respondent is a package freight company that concentrates on international shipping.
Presently the Respondent has three hub locations worldwide: Leipzig, Germany; Hong Kong; 30
and the Greater Cincinnati airport (CVG), which is located in northern Kentucky. The
Respondent has operated the hub at GVG since 2009 when it relocated its operations from
Wilmington, Ohio.3 In 2009 the Respondent withdrew from the domestic shipping market and
focused on import and export shipping. This decision resulted in the closure of 18 regional hubs

2 In making my findings regarding the credibility of witnesses, I considered their demeanor, the
content of their testimony, and the inherent probability on the record as a whole. In certain instances, I
credited some, but not all, of what the witness said. I note in this regard, that "[N]othing is more common
in all kinds of judicial decisions than to believe some and not all" of the witness' testimony. Jerry Ryce
Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950) rev’d on other grounds 340 U.S. 474 (1951); J. Shaw Associates, LLC 349 NLRB 939, 939-
940 (2007).
3 I have taken administrative notice of the Board's decision in DHL Express, Inc. (DHL I), 355 NLRB
No. 224 (2010), which indicates that in 2006 the Union conducted an organizing campaign at the
Wilmington facility. In DHL I, the Board found that in 2006 Respondent violated Section 8(a)(1) of the
Act by engaging in the following conduct: threatening employees with the loss of periodic wage increases
if they selected the Union as their representative; threatening employees with stricter enforcement of work
and/or disciplinary rules; and stating that it would be futile to select the Union as a representative.
JD–27–13
3
located throughout the United States and the move of the international hub from Wilmington to
CVG.
At the CVG facility, the Respondent processes packages on up to 49 flights that arrive
and depart daily. At this facility, containers containing packages are unloaded from airplanes, 5
sorted, and loaded back into containers to be loaded onto the planes for shipment to a final
destination. 4 The Respondent’s CVG facility operates on a 24-hour a day, 7-day a week basis
and employs approximately 1600 employees. Approximately 30 percent of the Respondent’s
employees work on a full time basis, while the remaining employees work part time.
10
According to the Respondent’s general manager of the CVG hub, Richard Eric Landers,
the Respondent refers to the handling of aircraft as a ramp operation, while the sort operation is
the loading and unloading of the freight. Approximately 700 employees work in the main sort
area. The director of sort operations is Pasquale Scarizameni; reporting to him are two senior
managers, Robert Thornburg and Brandon Lewis. Shane Paul is the director of ramp operations. 15
Richard Armstrong is the operations manager of tug dispatch 5and reports to Paul. Thomas Lee,
Randy Aver, Carl Newman and Kyle Rudolph are supervisors in the tug operations department
and report to Armstrong. There are approximately 150 employees employed in the tug dispatch
department and approximately 30 to 40 employees report to each supervisor.
20
The employees at the CVG facility are unrepresented, except for 14 maintenance
employees who are represented by the Teamsters. The Union has been attempting to organize the
remainder of the employees at the Respondent’s CVG facility for a number of years. I have taken
administrative notice of the Board’s decision in DHL Express, Inc., (DHL II) 357 NLRB No. 145
(2011). In DHL II, the Board found that the Respondent violated Section 8(a)(1) of the Act at the 25
CVG facility by enforcing its no distribution rule in a hallway near its offices and cafeteria. In so
finding, a Board panel majority found that the hallway in which employees were distributing
literature is not exclusively a work area, but rather a mixed use area, and accordingly the
Respondent violated the Act by prohibiting distribution in that area. Id. at fn. 1.
30
The Alleged Discriminatory Discharge of Joshua Flick in Violation of Section 8(a)(3)
and (1) of the Act
Facts
35
Joshua Flick was hired by the Respondent as a part-time tug operator on November 15,
2010, and was made a full-time tug operator on June 14, 2011. As a tug operator, Flick hauled
containers, which are also called “cans” from airplanes to the sort building. As noted, dollies are
attached to the tug, therefore enabling the tug operator to transport a large volume of packages in
one trip. Flick also moved packages in the sort building from one location to another and took 40
packages to airplanes for reloading. At the time of his termination on April 26, 2012, Flick

4 The containers vary substantially in size. Automobiles can be shipped in the largest one.
5 The record establishes that a tug is a motorized vehicle which transports freight to and from
airplanes and the sort operation located in the sort building. Tugs are also used to move packages within
the sort building as part of the sort operations. A tug pulls a platform called a dolly on which the freight is
carried.
JD–27–13
4
worked on the third-shift; he generally began work around 12:00 a.m. and ended his shift
between 7 and 9 a.m. He reported to Lee, his immediate supervisor, and also had contact with
Armstrong, the tug dispatch operations manager.
Shortly after he was hired, Flick signed an authorization card on behalf of the Union. 5
Thereafter, Flick often spoke to other employees about joining the Union. He always carried with
him authorization cards, which he referred to as “petitions” and solicited other employees to sign
such cards. He also distributed flyers on behalf of the Union to employees in the parking lot of
the facility. In February 2012, Flick’s name and picture appeared in an article he wrote in support
of the Union, which appeared in a union flyer that was distributed throughout the plant. In his 10
article, Flick claimed that he and other employees, at times, were not allowed to take a break.
Flick’s article also claimed that, under Kentucky law, employees were entitled to a 10-minute
rest period. His article further stated that the employees needed a union to protect their legal
rights and urged employees to support the Union (GC Exh. 5, p. 2). While at work, Flick often
wore a shirt that had the Union’s name on it and, in cold weather, wore a stocking cap with the 15
words “UNION MAN” on it.
As a tug operator, Flick was required to wear a reflective safety vest while performing his
job. On the back of one of his vests he wrote in capital letters with a black magic marker the
following expressions: “RESPECT IS EARNED NOT GIVEN”; RESPECT A MAN AN (sic) 20
HE WILL DO MORE”; and “GIVE IT GET IT.” (GC Exh. 2). According to Flick’s credited
testimony, he also wore another safety vest on which he wrote on the back “UNION MAN” and
“GOT RESPECT ” instead of the expressions referred to above.
Flick received four performance evaluations during his tenure at the Respondent. His first 25
evaluation covered the period from January 1, 2011 through March 31, 2011, and indicated that
Flick “meets expectations” with respect to safety. (GC Exh. 4A). In Flick’s second evaluation,
which covered the period from April 1, 2011 to October 1, 2011, under the safety standard Flick
was rated as “does not meet.” The narrative under safety indicates “Joshua has been involved in
a safety violation during this review period. Joshua dropped a container off a dolly as a result of 30
not securing the lock of the dolly. Joshua needs to continue to practice safe work acts and assist
others.” For this accident, Flick was given a final written warning that was effective for the
period from August 20, 2011, the date of the accident, to November 18, 2011 (R Exh. 7).
In the evaluation covering the period from October 1, 2011, to December 1, 2001, Flick 35
was rated as “partially meets” expectations under the safety standard, as a result of the incident
referred to in his previous evaluation (GC Exh. 4C). However, this evaluation, which was signed
by Lee and Armstrong, indicates that “Joshua is able to take direction from leads and supervisors
and adapt in any situation. Joshua follows safety rules and assist (sic) the department with
changing assignments to improve the efficiency.” Finally, in the performance evaluation for the 40
period from October 1, 2011 to April 1, 2012, Flick was rated as “partially meets” the
expectations under the safety standard (GC Exh. 4D). The narrative under safety category
indicates “Joshua has been involved in one safety violation during this review period. Joshua
turned his ankle while exiting his tug. Joshua needs to continue to practice safe work acts and
assist others.”45
JD–27–13
5
The incident referred to in Flick’s last performance appraisal occurred on November 24,
2011. According to the injury report, when Flick exited his tug he turned his ankle. The injury
report specifically indicates that no safety rules were broken nor was any discipline issued (R.
Exh. 9).
5
On February 25, 2012, Flick was involved in an accident caused by another employee. In
this incident, another tug operator hit Flick’s dolly as he was loading it, causing Flick’s dolly to
hit his leg and scrape it. The tug operator that caused the accident was issued a final written
warning that was to remain in effect for the year (R. Exh. 10). On March 8, 2012, Flick was
again involved in an accident caused by another employee. While Flick was moving a container 10
into position, a forklift operator pushed the container too early, and Flick’s right knee was
pinched between the container and loading area, causing an injury to his right knee (R. Exh. 11).
Flick received medical care and was placed on restricted duty until April 11, 2012.
I note that in November and December 2010 Flick received scores ranging from 95 to 15
100 in a series of safety tests involving ramp safety and the handling of hazardous materials (GC
Exh. 10a). On December 24, 2010 Flick received a score of 100 on a fourth quarter
recertification assessment for hub/gateway ramp, sort and support personnel which included
safety related questions (GC Exh. 10c.).
20
Although I find Flick’s attendance was not material to the circumstances surrounding his
discharge, I note that on January 19, 2012, Flick received a written verbal warning for violating
Respondent’s attendance policy (R. Exh. 7, p. 2). Flick was also given a written warning for
attendance on March 6, 2012 (R. Exh. 7, p.3). By its terms, the written warning was effective
only until March 19, 2012. 6 Based on Lee’s credited testimony, I also find that Flick received a 25
“coaching note” on March 21, 2012, indicating that he did not clock out for his scheduled break.
The coaching note indicated that Flick must take his break as outlined in the schedule, but
specifically indicated that the note did not constitute discipline. The coaching note also indicated
that Flick refused to sign the note. (R. Exh. 8.) I note, however, that Flick’s performance
evaluation for the period from October 1, 2011 to April 1, 2012, indicates in the overall 30
assessment that he “fully meets” expectations (GC Exh. 4D).

6 I find that Lee testified credibly that he prepared the two warnings and gave them to Flick. The
written warning dated March 5 (R. Exh. 7, p. 3 ), does not contain Flick’s signature. Lee testified in a less
than clear manner that Flick signed the original document, but that the document signed by Flick was
"given to HR and then scanned to the corporate office." (Tr. 423-424.) The Respondent did not explain
why the warning with Flick's signature on it was not produced. Flick denied receiving any warnings for
attendance even though his signature appears on the January 19, 2012 verbal written warning. (R. Exh. 7
p. 2.) Lee’s testimony that Flick received the January 19, 2012 warning is corroborated by the fact that I
find that Flick's signature on a document that he admits receiving, the warning for not locking the dolly
(R. Exh. 7, p. 1), looks like the same signature that appears on the written verbal warning for attendance
dated January 19, 2012. While I am somewhat concerned as to why the Respondent it did not produce the
version of the March 5 warning signed by Flick ( R.. Exh. 7, p.2) that Lee testified he witnessed, on
balance, I find that Lee's testimony that these warnings were in fact given to Flick is more persuasive
than Flick's denial that he received them. While Flick appeared to genuinely not recall receiving any
attendance warnings, I conclude otherwise, given the fact that his signature appears on one.
JD–27–13
6
On March 8, 2012, Richard Eric Landers was appointed as the general manager at the
Respondent’s CVG facility (Tr. 319). Shortly after he arrived, Landers reviewed the CVG hub’s
safety record and determined that too many work-related injuries and accidents were occurring
and that additional measures should be taken to attempt to reduce the number of such incidents.
In this connection, Landers implemented a policy regarding the Respondent’s safety committee 5
team conducting investigations to determine the root cause of work-related accidents and
injuries.
The Respondent had a long-standing policy of issuing brief written safety guidelines to
employees on a daily basis, which it referred to as “safety briefs.” In an effort to reemphasize 10
safety concerns, Landers instituted a practice, in approximately the third week of March 2012, of
asking senior managers what the daily safety brief was. Landers also instructed his senior
managers to require lower-level managers and supervisors to make inquiries of employees
regarding the daily safety brief. The Respondent’s safety security specialist, Gregory Riggin,
also asked employees about the daily safety brief. Riggin provided employees who knew the 15
answer a pin or a “cafeteria dollar.” Those employees who did not know the answer were sent
emails by Riggin asking why they did not know it. This renewed emphasis on safety, which the
Respondent referred to as a “safety blitz,” continued until approximately the end of May 2012.
As part of this process, Tug Dispatch Operations Manager Armstrong instructed his 20
supervisors to begin to ask employees about the daily safety brief. In the latter part of April, tug
dispatch supervisors informed employees of the safety blitz and advised employees that the
Respondent would begin to ask employees about the daily safety brief. In this connection, Flick
credibly testified that he attended a meeting held in late April with all the tug dispatch employees
present. This meeting was also attended by Armstrong and supervisors Lee and Newman. At this 25
meeting, employees were advised that they would be asked about the daily safety brief. Both
Flick and current employee Philip Leconte credibly testified that employees were not informed
that discipline would result if they did not know the answer to questions put to them about the
safety brief (Tr. 46; 294).
30
On the evening of April 18, 2012, the Respondent held what it referred to as a “tailgate
meeting.” At tailgate meetings, which were held on a quarterly basis, the Respondent updated
employees on the state of its business and provided food. At the April 18 meeting approximately
1000 employees were present. At this meeting, Landers was introduced as the new general
manager for the CVG hub. Landers stood on a large podium that was illuminated by floodlights. 35
Flick attended the meeting and wore one of his reflective vests indicating his support for the
Union. Flick yelled that a union was needed at the facility. However, I credit Landers’ testimony
that he did not see or hear Flick on that occasion. Landers testimony is inherently probable given
the number of employees who attended the meeting and the fact that floodlights were shining on
Landers, making it difficult for him to see individuals in the crowd of employees.40
On April 25 at approximately 3:00 a.m., Flick parked his tug inside the sort building in
order for his tug to be loaded. While he was waiting for his tug to be loaded, he left to take a
smoke break, after receiving permission from a supervisor. While Flick was on his break in the
smoking area outside the doors of the facility, he observed an individual move his tug. Flick 45
began to walk quickly back to his tug. On that evening Flick was wearing his vest that had
“UNION MAN” on it. As he was returning to his tug, Flick saw the individual who had been
JD–27–13
7
introduced as the new general manager at the tailgate meeting walking in the same direction.7 As
Flick was walking quickly, when their paths intersected, Flick was approximately 5 to 10 feet
ahead of Landers. While Flick was walking ahead of Landers, Flick pulled on his vest attempting
to get Landers to notice it.
5
When Flick arrived at his tug, Lee and Armstrong were standing there. Lee asked Flick
why he had left the tug and Flick replied that he had taken a smoke break, with permission, while
waiting for his tug to be loaded. Flick then walked onto the “ball deck” where containers are
loaded to wait for the loading of his container to be finished. The ball deck is approximately 4
feet higher than the ground floor and Flick was approximately 10 feet from where Armstrong 10
was standing. According to Flick’s credited testimony, he saw Landers walk up to Armstrong
and began speaking to him. Although the sort building is noisy, Flick was not wearing ear plugs
and, while he could not hear the entire conversation, he heard Landers say “vest” as he was
pointing to Flick.8
15
Flick continued performing his duties and about two hours later received a text message
from Lee asking him to meet with Lee and Armstrong. At this meeting, held in the Respondent’s
administration building, Armstrong asked Flick if he knew that writing on his reflective vest was
against company policy and that Flick would not be permitted to wear his vest in the future. Flick
replied that other employees besides him had writing on their safety vests. Armstrong said that 20
the Respondent would get to them and would be issuing new safety vests at a meeting to be held
the next day. When Flick asked Armstrong if he could get his own vest and write on it,
Armstrong replied that he could. Flick responded that he would do that and write “Union Man”
on it because he would not stop supporting the Union because of this rule change. (Tr. 56-58 ;
128-129.)25
Armstrong testified that he had a meeting with the tug operations supervisors at about
5:30 a.m. the morning of April 25 to discuss employees writing on safety vests. According to
Armstrong, an employee named Arthur Rogers had written his nickname “Art Dog” on his vest
in a way that Armstrong found offensive and thought was perhaps sexually harassing. Armstrong 30
also knew that Flick and another employee had writing on their vests. Armstrong told the
supervisors that they needed to inform employees that there would be no more writing on safety
vests issued by the Respondent and that the Respondent would be issuing new vests. Armstrong
testified that because of the arrival of the new general manager, Landers, and because of outside
individuals touring the facility, he wanted to “clean up” the image of the tug dispatch35
department.9 He instructed the supervisors to bring up Rogers, Flick and the other employee to

7 At the trial, Flick testified that he could not recall the new general manager's name.
8 Landers testified that while he had a conversation with Armstrong that night, he did not recall
speaking to Armstrong about employees who had written something on their vests. Armstrong testified
that he left the area after Flick arrived at his tug and began speaking to Lee. According to Armstrong, he
did not speak to Landers until approximately 15 minutes later and in a different area. Lee testified that he
did not see Landers until approximately 15 minutes after speaking to Flick. I do not credit Landers,
Armstrong, and Lee on this point as Flick's testimony was more detailed and more plausible when
considered on the basis of the entire record.
9 Landers testified that he was not aware of the "Art Dog" safety vest until it was taken from Rogers..
According to Landers, it was reported to him by another manager that Armstrong wanted to remove
writing from safety vests. Landers testified that he agreed and decided to implement that policy through
JD–27–13
8
inform them that writing on their vests would not be permitted and that new vests would be
issued. Rogers had left for the day and the other employee could not be located. According to
Armstrong, when he met with Flick, he told Flick that he would be issued a new vest and that
Flick replied that he knew why this was happening and walked out. (Tr. 382-385.)
5
To the extent that Armstrong’s testimony conflicts with that of Flick regarding the
substance of their meeting on April 25 regarding Flick’s safety vest, I credit Flick’s testimony.
Flick testified in a much more detailed manner and his testimony was consistent on both direct
and cross-examination. Armstrong’s testimony on this point was brief and appeared perfunctory.
I find that while Armstrong may have been considering eliminating the writing that some 10
employees had put on their safety vests, I doubt that he would have made the decision and begin
to implement it in the middle of a shift, unless Landers had indicated to him his displeasure over
the writing on Flick's safety vest.
The following evening, Flick attended the preshift meeting that occurred before the April 15
26 midnight to 7:00 a.m. shift. Approximately 140 tug operations employees were present.
Armstrong informed the employees that because customers were touring the hub, writing would
no longer be permitted on safety vests and that they would have to turn in their old safety vests
and would be issued new vests.10 After Armstrong spoke, Newman gave the daily safety brief.
Newman told employees they needed to be aware of their surroundings, pay attention while they 20
were driving, and that accidents usually happen toward the end of the shift.
At approximately 3:00 a.m. on April 26, Flick was sitting in his tug waiting for a
container to be placed on a dolly and hooked up to his tug. Flick was listening to music on his
cell phone while he was waiting. Employee Phillip Leconte, who was also waiting for containers 25
to be loaded onto dollies and attached to his tug, walked over to Flick and began speaking to
him. Shortly afterwards, Lee approached Flick and asked him whether he knew what the safety
message was for the day. Flick answered by responding, in a voice that mimicked that of a
mentally impaired person, “Watch out for other retards.”11 According to Leconte’s credited
testimony, Lee and Flick both laughed at Flick’s response. Leconte testified that Lee then 30
appeared to become more serious and Leconte left the area.
Flick then asked Lee what he would receive if he answered the question correctly. When
Lee responded that Flick would not receive anything, Flick then told Lee he did not know what

the entire hub. (Tr. 359-361.) While Landers may not have been aware of the writing on Arthur Rogers’
vest before Rogers turned it in, as I have found above, he was aware of the writing on Flick's vest
indicating his support for the Union and spoke to Armstrong about it on April 25.
10 The complaint does not allege that the Respondent's announcement of its new policy toward safety
vests constituted a violation of the Act.
11 Both Flick and Lee testified that this was the response that Flick initially made to Lee's inquiry.
Their testimony is also consistent with the written statement prepared by Lee regarding this incident on
April 26, 2012 (R. Exh. 20.) Leconte recalled Flick's stating “stay clear of the fucking drivers.” (Tr. 299;
305-306.) I found Leconte, who is currently employed by the Respondent and testified at the trial
pursuant to subpoena, to be generally a credible witness. However, on this point I find the mutually
corroborative testimony of Lee and Flick to be the more reliable version of the exact language used by
Flick in his initial response to Lee's inquiry.
JD–27–13
9
the safety message was. Lee responded “okay” and then instructed Flick to help his coworkers
load the container and Flick complied with his directive. It is undisputed that Lee did not say
anything to Flick indicating that Flick’s response to Lee’s question regarding the safety message
could result in discipline or discharge.
5
Lee then left the area and reported to Armstrong what had occurred. Armstrong instructed
Lee to bring Flick to a conference room in the human resources office. Lee approached Flick
while he was driving his tug and told him to shut it down and come with him. Flick asked Lee
what was going on and asked “if he was getting fired or wrote up, because I was really just
kidding” (Tr. 194). Lee did not respond to Flick’s question. When Flick arrived in the conference 10
room, Armstrong was present along with Carla Ford and Jama Basinger, who are both in the
Respondent’s human resources department.
According to Flick’s credited testimony, Armstrong asked Flick what he had said to Lee;
Flick responded that he told Lee that he did not know what the answer to the safety brief was. 15
When Armstrong asked Flick what he had said before that, Flick replied that he had stated
“Watch out for other retards.” Flick added that he had said this in a joking manner and did not
mean anything by it. (Tr. 67) Armstrong stated that such conduct would not be tolerated in the
workplace, as it was insubordinate. Armstrong then told Flick’s services were no longer needed.
Ford asked Flick if he understood that he was being terminated. Flick responded that he 20
understood that he was getting terminated, but that he was not clear as to what the reason was.
Ford merely responded by saying “okay.” (Tr. 68.)12 Lee then escorted Flick from the facility.
Flick never received a written termination notice. At the trial, the Respondent did not produce
any documents reflecting its reasons for terminating Flick.
25
Analysis
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied
455 U.S. (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983),
the Board established a framework for deciding cases turning on employer motivation regarding 30
an adverse employment action taken against an employee. To prove an employer’s action is
discriminatorily motivated and violative of the Act, the General Counsel must first establish, by a
preponderance of the evidence, an employee’s protected conduct was a motivating factor in the
employer’s decision. The elements commonly required to support such a showing are union
activity by the employee, employer knowledge of the activity, and, at times, antiunion animus on 35

12 The testimony of Armstrong, Ford, and Lee conflict with that of Flick in certain material respects
regarding this meeting. Armstrong and Ford testified that when Armstrong asked Flick what he had told
Lee when asked what the safety brief was, Flick responded "watch out for the retards" and then asked
"what's in it for me" before admitting that he did not know the answer. According to Armstrong and Ford,
Ford asked Flick if he realized that he had been insubordinate and that was something that he could be
terminated for. Flick responded that he absolutely did. According to their testimony, Ford also gave Flick
an opportunity to make a written statement, which he declined. Lee’s brief testimony regarding the
meeting corresponds with that of Ford and Armstrong. Except for the collateral issue of his attendance
warnings, I found Flick to be a credible witness. He appeared to attempt to answer all questions involving
matters germane to his discharge in an open and honest manner. With respect to the termination meeting
with Flick, the three management witnesses testified, in my view, in a manner that they felt would best
support the Respondent's case.
JD–27–13
10
the part of the employer. If the General Counsel is able to establish a prima facie case of
discriminatory motivation, the burden of persuasion shifts “to the employer to demonstrate the
same action would have taken place even in the absence of the protected conduct.” Wright Line,
supra at 1089.
5
As I have indicated above, Flick was very active on behalf of the Union. After signing an
authorization card for the union, Flick often solicited other employees to join the Union and
always carried authorization cards with him. In February 2012, Flick’s name and picture
appeared in an article he wrote in support of the Union which appeared in a union flyer that was
distributed throughout the plant. In addition, while at work Flick often wore a shirt with the 10
Union’s name on it and had a stocking cap with the words “Union Man” on it. Finally, Flick had
written on one of the safety vests the term “Union Man.”
Both Armstrong and Lee admitted that they had observed Flick distribute union literature
and wear union shirts and hats. Armstrong also acknowledged that Flick wore a safety vest with 15
the word “respect” written on it. I note that neither Armstrong nor Lee denied seeing Flick wear
a safety vest with the words “Union Man” written on it. Armstrong testified that Flick was the
only employee in tug dispatch that openly supported the Union (Tr. 374). The Respondent does
not dispute that Flick engaged in union activity and that the Respondent was aware of it.
20
I also find that the Respondent harbored animus toward the union activity of its
employees. In this connection in DHL I, supra, the Board found that the Respondent committed
several violations of Section 8(a)(1) during the Union’s organizing campaign at the Respondent’s
Wilmington, Ohio facility in 2006. In that case, the Board found that Ford, who was involved in
the decision to discharge Flick in the instant case, violated Section 8(a)(1) on behalf of the 25
Respondent, when she threatened employees with the loss of a periodic wage increase for
supporting the Union. Id. at sl. op. 1. In DHL II, the Respondent unlawfully restricted the
distribution of literature in violation of Section 8(a)(1). In addition, as set forth in detail later, I
find that on May 2, 2012, shortly after Flick’s discharge, the Respondent again interfered with
the Union’s distribution of literature in violation of Section 8(a)(1) of the Act. Under the 30
circumstances present in this case, I do not agree with the Respondent’s contention that the
violations of the Act the Board found that the Respondent committed in the prior cases are too
remote to be considered in establishing the Respondent’s animus toward the union activity of its
employees in the instant case.
35
According to Armstrong, Flick was the only open and active union supporter in the tug
dispatch department. On April 25, Landers observed Flick wearing his safety vest with the words
“UNION MAN” on it and discussed it with Armstrong. Later in that shift, Armstrong decided
that all employee writing on company safety vests in the tug dispatch department would no
longer be permitted and that new vests would be issued to employees. When Armstrong advised 40
Flick of the new policy, Flick indicated that he would buy his own safety vests and write “Union
Man” on it and that the change in policy would not stop him from supporting the Union. The
next evening, when Lee reported to Armstrong Flick’s responses to Lee’s question regarding the
safety brief, Armstrong, in conjunction with Ford and Basinger, summarily discharged Flick. The
abruptness of the discharge and the timing, shortly after Flick indicated to Armstrong that he 45
would continue to be a strong union advocate, is persuasive evidence that the Respondent’s
motive in discharging Flick was his union activity. Toll Mfg. Co., 341 NLRB 832, 833 (2004).
JD–27–13
11
On the basis of the foregoing, I find that the Acting General Counsel has established a prima
facie case under Wright Line, supra, and the burden shifts to the Respondent to establish that it
would have taken the same action against Flick regardless of his union activities.
In order to meet the Wright Line burden, an employer must establish that it has 5
consistently and evenly applied its disciplinary rules. Septix Waste, Inc. 346 NLRB 494, 495-496
(2006). The Respondent has discharged other employees for insubordination and, in one
instance, an employee was discharged for insubordination coupled with a disregard for safety
rules. However, I find that each situation involved conduct that was quite different from that of
Flick. Thus, I find there is no evidence that the Respondent has discharged other employees for 10
engaging in conduct similar to that of Flick. Accordingly, I find that the Respondent has not met
its Wright Line burden in this case.
As I have indicated above, the Respondent produced no documents regarding its reasons
for discharging Flick. According to Flick’s credited testimony, Armstrong told him that his 15
responses to Lee’s questions were insubordinate and that he was being terminated for that
conduct. Armstrong testified at the trial that when Lee reported to him Flick’s answers to Lee’s
question regarding the safety brief, Armstrong concluded that Flick was being insubordinate and
disrespectful to the safety program. (Tr. 388) Armstrong then discussed the matter with
Baisinger and Ford and they concluded that if what was reported was truthful it warranted 20
termination (Tr. 389.)
In assessing the Respondent’s defense under Wright Line, I note that while Flick’s initial
responses to Lee’s questions were somewhat flippant, it is important to consider the overall
context in which those statements were made. According to the credited testimony of Flick and 25
Leconte,13 Flick and Lee had a friendly relationship at work and would often joke around about a
variety of issues. At times this joking would be done in a voice that mimicked that of a mentally
impaired person. The genesis of this voice was a character in a movie entitled “Scary Movie”
that apparently both Flick and Lee were fans of. (Tr. 71-73; 295-297; 304-305; 312-314.)14
30
Although Lee testified that Flick’s response to his question regarding the safety brief
bothered him, he did not indicate that to Flick at the time. Although Lee reported to Armstrong
the manner and substance of Flick’s responses to his questions regarding the safety brief, he did
not recommend any disciplinary action be taken with respect to Flick.
35
In examining the Respondent’s asserted reasons for the discharge of Flick, I note that
Landers testified that employees are not terminated for failing to know the answer to questions
about the safety briefing. Landers testified that the policy generally is that an employee needs to

13 As a current employee who testified against the interest of his employer, it is unlikely that
Leconte’s testimony is false. Bloomington-Normal Seating Co., 339 NLRB 191, 193 (2003).
14 While Lee admitted that he joked around with Flick during preshift meetings, Lee claimed that his
relationship with Flick was no different than that of any other employees supervised. Lee testified that he
did not recall either he or Flick speaking in a voice that mimicked that of a mentally impaired person. I do
not credit Lee's testimony in this regard. His testimony was vague and generalized on this issue and he
appeared uncomfortable discussing it. In contrast, the mutually corroborative testimony of Lee and Flick
was detailed and consistent and delivered in a manner that reflected certainty.
JD–27–13
12
find out the correct answer and report it to their supervisor (Tr. 366). Lee testified that there were
many employees who did not know the answer to questions regarding the safety briefing (Tr.
456-457). Lee testified that the instruction that he received on what to do if an employee did not
know the answer to questions about the safety brief was to find out why they did not know and to
ensure that they knew what the correct answer was (Tr. 457). Under the circumstances, it is not 5
surprising that Lee did not recommend that discipline be imposed upon Flick for not knowing the
answer to his question regarding the safety briefing. There is no evidence that the Respondent
considered not knowing the answer to a question about the daily safety brief, in and of itself, to
be a dischargeable offense.
10
In assessing the Respondent’s contention that the discharge of Flick warranted
termination, I first examine the circumstances surrounding the discharge of employee Joseph
Miller. Miller was terminated on April 24, 2012, for “disregard of safety and insubordination.”
(GC Exh. 6.) According to the report, Safety Specialist Riggin gave to Operations Manager
Brian Stewart, Riggin asked Miller if he was aware of the safety brief for the day. When Miller 15
responded that he did not know, Riggin went on to ask other employees if they were aware of
the safety brief and gave them an “AVI voucher” if they knew the answer. As Riggin was
leaving the area, he overheard Miller say he had “more important things to do than worry about
safety.” Miller was asked by Riggin if he thought that safety was important, and Miller replied
that he did not. When Riggin asked Miller if he believed that safety would be important if he was 20
injured by another employee, Miller responded “I don’t care.” Riggin then asked Miller to follow
him to Miller’s supervisor (Brian Stewart) so they could have a discussion about the matter.
However, Miller replied “No. I ain’t going anywhere.” When Riggin asked Miller his name,
Miller shoved his arm close to Riggin’s face and stated “There it is.” Riggin then reported the
matter to Stewart, who then recommended Miller’s discharge.25
Unlike Flick’s situation, Riggin took no action when Miller indicated he did not know the
answer to the safety brief. Rather, Riggin merely began to ask other employees if they knew
what the safety brief was. It was only after Riggin heard Miller openly state that he had more
important things to do than worry about safety, that Riggin returned an attempted to have a 30
dialogue with Miller about the importance of safety. Miller repeated on two more occasions that
he did not care about safety. He then adamantly refused Riggin’s request to come with him to
discuss the issue with Miller’s supervisor. Finally, when Riggin asked Miller his name, Miller
shoved his arm close to Riggins face, displaying his name tag and saying “There it is.” As noted
above, Miller was discharged for “ insubordination and disregard of safety.” In contrast, while 35
Flick’s original answer to Lee was delivered in a joking manner; his answer actually reflected
some awareness that part of the safety message that evening was to pay attention while you were
driving. Flick then asked what was in it for him if he knew the answer. This question could not
be considered insubordinate under any objective standard since it is undisputed that the
Respondent was giving pins or a dollar credit at the cafeteria to employees if they knew the 40
answer to the safety brief. Finally, Flick simply admitted that he did not know the answer to the
question regarding the safety brief. Importantly, Flick indicated, both to Lee on the way to his
discharge meeting and to Armstrong, Basinger, and Ford when he arrived, that he was only
joking when he made his initial responses. Notwithstanding Flick’s explanation for his conduct
and his cooperative attitude toward supervision throughout the whole matter, he was summarily 45
discharged. In my view, the conduct of Miller and Flick is so different that Miller’s discharge,
which involved Miller’s consistently stated disregard for safety expressed in a defiant and
JD–27–13
13
insubordinate manner, does not establish that the Respondent applied a consistent policy in
discharging employees whose conduct was similar to that of Flick’s.
In January 2012, the Respondent terminated John McBroom for insubordination and
improper use of company email. McBroom had previously received a warning. (GC Exh.7; R. 5
Exh. 21.) The report accompanying McBroom’s discharge indicates that he sent an email to his
supervisor telling him the way to run the area that McBroom worked in. The supervisor informed
McBroom that he could not send such instructions to a supervisor. McBroom replied that he did
not care because he did not want to work by himself anymore. The supervisor explained that, at
times, McBroom would need to do so, but that the supervisor would send him help if necessary. 10
McBroom repeated it was not going to work by himself. McBroom then raised a previous matter
when, according to McBroom, his supervisor had found him sitting on the floor and threatened to
write him up. The supervisor told McBroom that sitting on the floor involved a safety issue and
that he had told McBroom to get up and lean on the work table behind him if he was not feeling
well. McBroom persisted in attempting to discuss that issue, but the supervisor told him that he 15
needed to drop it as the conversation was over. McBroom continued to discuss it “with attitude”
and when the supervisor again told McBroom to stop it McBroom replied that the supervisor
needed to go. (R. Exh. 21.) I find that the insubordinate refusal by McBroom to accede to his
supervisor’s direction is far different from the manner in which Flick responded to Lee’s
questions about the safety brief.20
Michael Glacken was terminated for insubordination on February 25, 2012 (GC Exh. 8;
R. Exh. 23). According to the report of Supervisor Michael Bush, on February 24, Glacken
became upset with another driver, Daniel Dougherty, for allegedly not looking as Dougherty
backed up. Glacken yelled at Dougherty and took the backup mirrors from Dougherty’s lift. 25
Bush approached Glacken and told him that he could not take the mirrors from lifts and yell at
other drivers. Later that same shift, Bush saw Glacken another employee, Kasib Hasan, arguing
about Hasan’s driving. When Bush asked Glacken what was going on, Glacken said he “had it
handled.” Glacken told Bush that he was not his supervisor and that he did not have to answer to
Bush. Bush told Glacken he was a supervisor and that he wanted to know what was going on. 30
Glacken said that he was told that he needed to stop the lift drivers from backing up without
looking and that is what he was doing. He then left the area yelling and screaming (GC Exh. 8).
Clearly, Glacken’s insubordinate conduct toward Bush and his dangerous behavior regarding the
removal of backup mirrors is substantially different than Flick’s conduct in the manner in which
he responded to Lee’s questions about the safety brief.35
On March 23, 2012, the Respondent discharged Thomas Schroerer. Schroerer had been
warned several times about the Respondent’s seatbelt policy while operating a forklift. When
Riggin suspended him indefinitely from operating a forklift due to multiple violations of the
seatbelt policy, Schroerer told Riggin “Merry Christmas Mother Fucker.” When Riggins asked 40
Schroerer what he had called him, Schroerer said “Merry Christmas, thank you very much.” (GC
Exh. 9.) I find the conduct that precipitated Schroerers’ discharge to be substantially different
from Flick’s conduct. Schroerer was given repeated warnings about wearing a seatbelt, yet failed
to comply. When Schroerer was finally suspended for his repeated refusal to abide by the safety
policy, he called Riggin a mother fucker. Flick, of course, was given no warning regarding his 45
conduct on April 26 and did not use any profane language toward his supervisor.
JD–27–13
14
On February 4, 2010, employee Joshua Snowball was terminated for refusing to follow a
supervisor’s direct order to take containers to the unload area (R. Exh. 17; Tr. 394-395; 405).
Similarly, on June 22, 2011, Christopher Anderson was discharged for refusing to follow the
orders of Supervisor Nick Kline. When Kline ordered Anderson to hookup his tug to take
containers to the forklift area, Anderson began to drive his tug away. When Kline told Anderson 5
to come back and hookup, Anderson yelled “fuck you.” As Kline walked toward Anderson’s talk
and said “excuse me,” Anderson said that he had to go back to the unloading que. When Kline
grabbed the door of the tug and told Anderson to turn off the engine and get out the tug,
Anderson stepped on the gas and Kline had to jump to get out of the way so as not to get hit by
the tug. (R. Exh. 19.)10
On September 22, 2011, Michael Williams was terminated because he refused to follow
the direction of a crew leader and then, when an argument ensued regarding the matter, Williams
told the crew leader to “meet me in the parking lot and get in my face.” Another employee then
had to intervene and separate Williams and the crew leader. (R. Exh. 18.)15
The conduct of Snowball, Anderson, and Williams involved a refusal to perform a direct
order by a supervisor or a lead man. The conduct of Anderson involved both aggressive acts and
profanity directed toward a supervisor. Williams’ conduct involved attempting to instigate a fight
with a lead man Flick, however, never refused to perform any orders from Lee, never used 20
profanity, and never acted in any manner aggressively toward him.
It is clear that, after reviewing all the record evidence regarding the discharges of other
employees for insubordination and disregard of safety, the offenses of those employees were
different in kind than Flick’s conduct. Flick’s failed attempt at humor in answering Lee’s 25
question regarding the daily safety brief is far removed from the acts of insubordination that
caused the Respondent to discharge other employees. With regard to Armstrong’s claim that an
alleged disrespect for the safety program was part of the reason for Flick’s discharge, as noted
above, Flick had only one chargeable accident during his employment and scored well on safety
tests. There is no evidence that the Respondent discharged another employee with a similar 30
safety record or discharged any other employee for not knowing the answer to a question about
what the daily safety brief contained. Another difference between the discharge of Flick and that
of the other employees noted above is the lack of any documentation regarding the Respondent’s
reasons for discharging Flick. This establishes his discharge did not occur according to the
Respondent’s normal processes. Under all of the circumstances, the Respondent has not met its 35
burden of showing that other employees were discharged for engaging in conduct similar to that
of Flick. See Septix Waste, supra, at 497 fn. 16. Thus, the Respondent has not met its burden
under Wright Line to establish that it would have discharged Flick even if he had not engaged in
union activity. Accordingly I find that his discharge violates Section 8(a)(3) and (1) of of the
Act.40
The Alleged Violations of Section 8(a)(1) of the Act
The complaint alleges that on or about May 2, 2012, the Respondent, by Brandon Lewis
at its Erlanger, Kentucky facility, violated Section 8(a)(1) of the Act by informing an employee, 45
who was engaged in the distribution of union literature in the Respondent’s cafeteria, that the
JD–27–13
15
employee could not distribute the literature in that area and by instructing the employee that if he
did not cease doing so he would be escorted from the facility.
While the Respondent does not dispute that the cafeteria at the CVG facility is a nonwork
area where employees can distribute literature, it contends that, under the circumstances present 5
in this case, any violation of the Act that occurred was de minimus in nature and does not require
a remedial order.
Facts
10
Charles Teeters is employed by the Respondent as a service agent and works the third-
shift at the Respondent’s CVG facility. The third-shift generally begins between 12:00 a.m. and
1:00 am. Teeters has been an active supporter of the Union’s organizing drive for approximately
2 years. In this connection, he has passed out union newsletters and handbills both inside and
outside the facility and has solicited employees to sign authorization cards. Teeters testified that 15
he generally arrives at work approximately 30 to 45 minutes before the shift and goes to the
cafeteria where he displays union newsletters, union hats and buttons and speaks to employees
about the Union. According to Teeters, the Respondent had previously informed union
supporters that they were permitted to conduct such activity in the cafeteria. (Tr. 216-217.)15
20
On May 2, 2012, Teeters arrived in the cafeteria before his shift. Robert Woodyard,
another employee union supporter, was with him. On a cafeteria table approximately 15 feet
from the cafeteria door, Teeters and Woodyard laid out various items of union literature. One
document had the title “GUILTY!” in bold capital letters and discussed the Board’s decision in
DHL II (GC Exh. 5A). Another document had the title in bold capital letters “DHL WORKERS 25
DESERVE A BREAK.” This document included Flick’s article about breaktimes and contained
his name and photograph. (GC Exh. 5A, p. 2.)
Before the shift began on May 2, Landers came into the cafeteria and stopped to look at
the union literature displayed on the table. Teeters recognized Landers as the new general 30
manager who had been introduced to employees at the April 18 tailgate meeting. Landers went to
the cafeteria line to get something to drink and then stopped once again to look at the union
literature before he left the cafeteria.
Approximately 10 minutes later one of the Respondent’s senior managers, Brandon 35
Lewis, came into the cafeteria along with Colin Beynon, a human resources manager. Lewis
instructed Teeters to pick up the union literature and leave the cafeteria. When Teeter’s asked
why he had to leave, Lewis indicated that he and Teeters had had a similar conversation in the
past. Teeters told Lewis that they had spoken about the right to distribute literature in the
hallway.16 Lewis again ordered Teeters to leave the cafeteria. Teeters told Lewis that the 40

15The Respondent's rule regarding solicitation and distribution contained in its current handbook
provides "Solicitation by one employee of another employee is prohibited if either employee is on work
time. You are prohibited from distributing advertising materials, handbills or printed and written literature
of any kind in work areas. Working time does not include any break periods. (R. Exh. 3, p.48.)
16 DHL II, supra, involved the right of employee union supporters to distribute literature in the main
hallway area of the Respondent's administration building at CVG.
JD–27–13
16
Respondent had been allowing employees to distribute union literature in the cafeteria. Teeters
claimed that Lewis and Beymon were violating his right to pass out literature in the cafeteria and
asked them what would happen if he refused to pick up his materials and leave. Lewis told
Teeters that he would be escorted out of the building if Teeters refused to leave, but that “we do
not want to do that.” (Tr. 236.) At that point Teeters and Woodyard began to pick up the union 5
literature. Before he left the cafeteria Peters shook hands with Lewis as they generally had a
cordial working relationship. There were about 30 employees within approximately 7 feet of
conversation between Teeters and Lewis while it was occurring. The next day, Teeters began a
brief vacation. When Teeters returned to work on April 10, 2012, he resumed his practice of
sitting at a table in the cafeteria before his shift began with union literature available for 10
distribution. Teeters had continued this practice until the time of the trial without any further
attempts by the Respondent to have him cease such activity.
Landers was the only witness called by the Respondent regarding this issue. According to
Landers, when he went into the cafeteria before the start of the shift on May 2, he observed an 15
employee sitting at a table with union literature. Landers walked up and looked at the literature.
After Landers left the cafeteria he spoke to Beynon. Landers expressed his belief to Beynon that
the employees were allowed to distribute union literature in the parking lot, but not in the
building. Landers asked Beynon if it was permissible for employees to distribute literature in the
cafeteria. Beynon replied that it was not and that he would handle the situation. It was later 20
reported to Landers that Beynon and Lewis had asked the employees distributing the literature to
leave the cafeteria.
After the incident occurred, Landers learned it was permissible for employees to
distribute union literature in the cafeteria. A couple weeks after the incident in early May, 25
Landers again observed employees distributing literature in the cafeteria and took no action to
interfere with that activity.
There is no evidence that the Respondent ever announced to employees their right to
distribute literature in the cafeteria after the May 2, 2012 incident, involving Teeters and 30
Woodyard.
Analysis
In Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978), the Supreme Court indicated 35
that “the right of employees to self organize and bargain collectively established by Section 7 . . .
necessarily encompasses the right effectively to communicate with one another regarding self
organization at the job site.” It is a well-established principle that off-duty employees have the
right under Section 7 of the Act to distribute union literature on company property during
nonwork time in nonwork areas. Golub Corp., 338 NLRB 515 (2002); New York New York Hotel40
& Casino, 334 NLRB 762 (2001); Nashville Plastics Products, 313 NLRB 462, 463 (1993).
In the instant case, it is clear that Teeters and Woodyard were off-duty as their shift had
not yet started. It is equally clear that the Respondent’s cafeteria is a nonwork area. Thus,
Respondent violated Section 8(a)(1) of the Act when Teeters and Woodyard were instructed to 45
pick up their union literature and leave the Respondent’s cafeteria on May 2, 2012. By informing
Teeters that he would be escorted from the facility if he refused to comply with that order, the
JD–27–13
17
Respondent additionally violated Section 8(a)(1). If Teeters was escorted from the facility he
obviously would not be performing his work duties. Viewed objectively, that statement
constituted an implied threat that Teeters would be suspended or discharged if he failed to
comply with the Respondent’s order to cease distributing union literature and to leave the
cafeteria. 5
That the incident on May 2, 2012, may have resulted from Landers and Beynon’s
misunderstanding of the right of Teeters and Woodyard to distribute union literature in the
cafeteria while they were off-duty does not serve as a defense to the Respondent’s conduct. The
Board has long held that motive or intent is not a critical element in finding a violation of Section 10
8(a)(1). The test is whether the employer’s conduct reasonably tends to interfere with the
exercise of employee rights under the Act. Golub Corp., supra at 516. It is clear that under the
circumstances present in this case, the Respondent unlawfully interfered with the right of
employees to distribute union literature at a time and place where they are permitted to do so.
15
I do not agree with the Respondent’s contention that its conduct on May 2 constituted, at
most, a technical violation of the Act which does not require a Board remedial order and notice.
In the first instance, the Respondent’s interference with the protected right of Teeters and
Woodyard to distribute union literature in the cafeteria was witnessed by approximately 30 other
employees. This conduct also occurred shortly after the Respondent discharged Flick, a leading 20
union adherent in violation of Section 8(a)(3) and (1) of the Act. In addition, I note that the
Board has previously found that the Respondent interfered with employees’ attempts to lawfully
distribute union literature in violation of Section 8(a)(1) at its CVG facility. DHL II, supra.
While the Respondent apparently informed Landers and other managers at the CVG 25
facility that employees have the right to distribute union literature in the cafeteria while they
were off-duty, there is no evidence that employees were ever informed that the Respondent had
acted unlawfully on May 2 by interfering with that right or were given assurances that such
conduct would not occur again. In Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
the Board indicated that under certain circumstances an employer may relieve itself of liability 30
for unlawful conduct by repudiating the conduct. To be effective, the repudiation must be
“timely, unambiguous, specific in nature to the coercive conduct and free from other proscribed
illegal conduct.” In addition, there must be adequate publication of the repudiation to the
employees involved and there must be no proscribed conduct on the employer’s part after the
publication. Finally, the repudiation should give assurances to employees that in the future the 35
employer will not interfere with the exercise of their Section 7 rights. Id. at 138-139. See also
Intermet Stevensville, 350 NLRB 1349, 1350 fn. 6, 1382-1383 (2007); River’s Bend Health &
Rehabilitation Services, 350 NLRB 184, 193 (2007). It is clear that the Respondent did not meet
the Passavant standards and accordingly I find that a Board remedial order and notice are
necessary to properly remedy the violations of Section 8 (a) (1) that occurred here.40
CONCLUSIONS OF LAW
1. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of
the Act by:45
(a) Prohibiting the distribution of union literature in its cafeteria, a nonwork area.
JD–27–13
18
(b) Threatening to escort employees from the facility unless they ceased the lawful
distribution of union literature in its cafeteria, a nonwork area.
2. The Respondent has engaged in an unfair labor practice in violation of Section 8(a)(3) 5
and (1) of the Act by discharging Joshua Flick because Flick and other employees engaged in
union activities.
3. The above unfair labor practices affect commerce within the meaning of Section 2 (2),
(6), and (7) of the Act.10
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 15
the policies of the Act.
The Respondent, having discriminatorily discharged Joshua Flick, must offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the 20
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
The Respondent shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent shall also compensate the 25
discriminatee for the adverse tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44
(2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 30
following recommended17
ORDER
The Respondent, DHL Express (USA), Inc., its officers, agents, successors, and assigns, 35
shall
1. Cease and desist from
(a) Prohibiting the distribution of union literature in its cafeteria, a nonwork area.40
(b) Threatening to escort employees from the facility unless they cease the lawful
distribution of union literature in its cafeteria, a nonwork area.

17 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.
JD–27–13
19
(c) Discharging employees, or otherwise discriminating against employees for
engaging in union or other protected concerted activities.
(d) In any like or related manner, interfering with, restraining or coercing 5
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Joshua Flick full 10
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Joshua Flick whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him in the manner set forth in the remedy section of the 15
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Flick in writing that this
has been done and that the discharge will not be used against him in any way.20
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored 25
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Erlanger,
Kentucky, copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms 30
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. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 35
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to 40
all current employees and former employees employed by the Respondent at any time since
April 26, 2012.

18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–27–13
20
(f) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C., April 22, 2013.5
____________________10
Mark Carissimi
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT prohibit the distribution of union literature in our cafeteria, a nonwork
area.
WE WILL NOT threaten to escort employees from the facility unless they cease the
lawful distribution of union literature in our cafeteria, a nonwork area.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting
the American Postal Workers Union or any other union.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Joshua Flick full
reinstatement to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Joshua Flick whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharge of Joshua Flick, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the discharge will not be
used against him in any way.
DHL EXPRESS (USA), 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 Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 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, (513) 684-3750.