Fresenius USA Manufacturing

National Labor Relations Board - Administrative Judge Opinions

Aug 19, 2010

02-CA-039518 (N.L.R.B. Aug. 19, 2010)

JD(ATL)–17–10
Chester, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
FRESENIUS USA MANUFACTURING, INC.
and Case 2–CA–39518
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 445
Julie Rivchin, Esq. and Leah Z. Jaffe, Esq., for the General Counsel.
Thomas G. Servodidio, Esq., for the Respondent.
Daniel E. Clifton, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in New
York, New York, on May 4, 5, 6, 24 and 25, 2010. The original charge was filed by the
International Brotherhood of Teamsters, Local 445 (the Union) on October 5, 2009, and an
amended charge was filed by the Union on December 16, 2009.
On February 4, 2010, the Regional Director for Region 2 of the National Labor
Relations Board (the Board) issued a complaint and notice of hearing based upon allegations
contained in the charges described above. The complaint alleges that Fresenius USA
Manufacturing, Inc. (the Respondent), acting through three-named management officials,
violated Section 8(a)(1) of the National Labor Relations Act (the Act) by interrogating Kevin
“Dale” Grosso (Grosso) concerning his union activities and conducting an investigation
concerning Grosso’s union activity. The complaint also alleges that Respondent, acting
through these same individuals, violated Section 8(a)(1) of the Act by telling Grosso not to
speak with any employees about the investigation. Finally, the complaint1 alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by suspending Grosso on September
22, 2009, pending the outcome of the investigation, and by terminating Grosso on
September 25, 2009.

1 The General Counsel moved to amend the complaint at the beginning of the hearing to allege
that Grosso’s suspension and termination were violations of both 8(a)(1) and (3) of the Act.
Respondent opposed the motion to amend. Inasmuch as the original complaint included both the
suspension and the discharge alleged as violations, I found nothing prejudicial in the General
Counsel’s proposed amendment to clarify the allegations with respect to the correct sections of the Act
and the motion was granted.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
2
On the entire record,2 including my observation of the demeanor of the witnesses,
and after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with an office and place of business in Chester,
New York, has been engaged in the business of the distribution of dialysis products. During
the past 12 months, Respondent derived gross revenues in excess of $500,000 and
purchased and received at its Chester, New York facility, products, good, and materials
valued in excess of $50,000 directly from points outside the State of New York. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Fresenius USA Manufacturing, Inc. (the Respondent) is a subsidiary of Fresenius AG;
a multinational corporation. Respondent is engaged in the manufacture and distribution of
disposable dialysis products to medical facilities and to home patients. Respondent’s
headquarters is located in Waltham, Massachusetts, and there are four manufacturing
facilities and 14 distribution centers throughout the United States. One of the distribution
centers is located in Chester, New York. This center is the site of the alleged unfair labor
practices that are identified in the complaint. As a distribution center, the Chester facility is
primarily a warehouse and trucking operation.
1. Respondent’s supervisors
Three of Respondent’s supervisors who were involved in this case are a part of
Supply Chain Management; the portion of Respondent’s operation that is responsible for
procuring the products that Respondent does not manufacture and it includes the distribution

2 On June 29, 2010, Respondent filed a motion to correct the transcript. The motion contained a
listing of 13 names that were misspelled throughout the transcript. The motion also contained a listing
of 190 errors in the 1466 page transcript. In a written response on July 15, 2010, the General Counsel
confirmed no opposition to Respondent’s motion. Additionally, on that same date, Respondent and
the General Counsel filed a joint motion to further correct the transcript. The joint motion contained 29
additional proposed transcript corrections because of either typographical or transcription errors. The
joint stipulation also included one proposed correction in lieu of a proposed correction in Respondent’s
original motion. I have reviewed each transcript section identified in Respondent’s motion and in the
joint motion. The proposed changes involve corrections for typographical errors, misspelling, or the
inadvertent omission of a word or words. None of the proposed corrections alter the substance of the
testimony given. Accordingly, I grant Respondent’s motion as well as Respondent’s and the General
Counsel’s joint motion. In addition, I have noted that there are at least two references in the transcript
to witnesses being sworn by a Notary Public of the State of New York. (See transcript pp. 638 and
780.) Inasmuch as the undersigned administered all the oaths and no witnesses were sworn by a
Notary Public from the State of New York, the transcript should be corrected accordingly. Such
correction is directed upon my own motion.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
3
centers. Their offices are located in Waltham, Massachusetts. As vice president of Supply
Chain Management, Kevin King (King) reports to the senior vice president of Global
Manufacturing Operations for North America and oversees all of the supply chain
management functions for North America. Jason Tyler (Tyler) is Respondent’s senior
human resources manager and Douglas Maloney is Respondent’s senior director of Supply
Chain Management.
The remaining supervisors involved in this matter worked at the Chester facility in
September 2009. Shane Healey served as Respondent’s distribution manager for
Respondent’s Chester, New York facility, where he oversaw both the fleet department and
the warehouse department. Anthony Dobkowski is the fleet supervisor at the Chester facility
and is responsible for overseeing all aspects of the transportation department. Frank Petliski
is the warehouse supervisor. Both Dobkowski and Petliski report to the distribution manager
at the Chester facility. Based upon the parties’ stipulations concerning the exercise and
possession of certain indicia of supervisory authority, I find King, Maloney, Tyler, Healy, and
Dobkowski3 to be supervisors and agents within the meaning of the Act.
2. Collective-bargaining history
On July 8, 2008, the Union was certified as the exclusive collective-bargaining
representative for Respondent’s Chester, New York employees in two separate bargaining
units. One bargaining unit included all full-time and part-time drivers employed at the
Chester, New York facility. The second bargaining unit included all regular full-time and part-
time warehouse workers, warehouse leads, administrative assistants, and transportation
routers employed by the Respondent at the Chester, New York facility.
Following the Union’s certification in 2008, Respondent and the Union began
collective bargaining concerning the employees in the drivers’ unit. King, Maloney, and
Healey served on the Respondent’s bargaining committee along with the Respondent’s
Regional Manager and the Respondent’s attorneys. Because of his participation in the
negotiations, King visited the Chester facility approximately once each month. Although
there were regularly scheduled negotiations for the drivers’ unit, there were no negotiations
between the Respondent and the Union concerning the warehouse employees unit. In
September 2009, there were 12 employees in the warehouse unit and 5 of the 12 employees
were women. The women who worked in the warehouse bargaining unit were Janet
Buxbaum, Stephanie Miller, Barbara Moscatelli, Joan Bernadino, and Virginia Germino. At
that same time, there were 21 employees in the drivers’ bargaining unit and none of those
individuals were women.
On July 9, 2009, employee Janet Buxbaum filed a petition with the Board seeking a
decertification of the Union as the bargaining representative for the warehouse bargaining
unit. In the election held on September 23, 2009, a majority of the employees did not vote
for the Union’s continued representation of the warehouse unit and a certification of results
issued on October 1, 2009.

3 Although Petliski appears to have comparable supervisory authority with Dobkowski, he was not
alleged in the complaint as a supervisor and his supervisory status was not in issue.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
4
3. Physical layout of the facility
There are two main areas in the Chester facility; the administrative office area and the
warehouse area. The warehouse is 108,000 square feet and the office area is estimated to
cover 6000 to 10,000 square feet. The administrative area contains offices, a conference
room, a breakroom, and two desks used by the administrative assistants. The warehouse
portion of the facility is the area where the products are stored and then loaded for delivery to
Respondent’s customers. All Chester employees, including the drivers, office, and
warehouse employees share the same breakroom. There is an entrance from the warehouse
directly into the breakroom.
B. The Events of September 10, 2009
1. Dale Grosso’s union activity
Prior to his discharge on September 25, 2009, Grosso had been employed by
Respondent for more than 12 years. Grosso was a route driver and reported to Dobkowski.
Grosso’s duties involved delivering dialysis materials to patients’ homes, clinics, and
hospitals. Following the Union’s certification as the collective-bargaining representative for
Respondent’s drivers, Grosso volunteered to serve on the Union’s negotiation committee.
He estimated that he attended approximately 10 bargaining sessions.
After the filing of the decertification petition for the warehouse employees’ unit,
Grosso talked with other drivers about the status of the Union. Based upon his
conversations with other drivers, Grosso concluded that the employees in the warehouse
were withdrawing their support for the Union. On September 10, 2009, Grosso and driver
Mark Huertas finished loading their trucks at roughly the same time and they walked together
to the breakroom. When Grosso entered the breakroom, he noticed that there were Union
newsletters lying on the breakroom tables. Because Huertas was also on the Union’s
negotiating committee, Grosso asked Huertas if he thought that the warehouse employees
would even read the newsletters. He recalled that they both laughed and commented that
the employees probably would not.
Grosso sat down at one of the tables and began to write comments on the top of the
newsletters. On one of the newsletters, he wrote the words: “Dear Pussies, Please Read!”
On both direct and cross-examination, Grosso was asked extensively what he meant by
writing those words. Grosso explained that it was a way of getting the warehouse
employees’ attention and he saw it as “a way of getting someone to man up a little bit.”
When asked why he used the word “Pussie,” he explained that he did so to get the
warehouse workers to read the newsletters and because he thought that they were
spineless. On a second newsletter, Grosso wrote the words: “Hey cat food lovers, how’s
your income doing?” Grosso explained that this referred back to the comment in the other
newsletter and was a play on words for his other comment “Dear Pussies.” He testified that
he was directing this second comment to all the warehouse employees. Grosso testified that
income was a “sticking point” for warehouse employees and he wanted to reinforce this
sentiment when he wrote the comment. He also testified that he did not want the warehouse
employees to decertify the Union and he believed that they would be able to get something
better for themselves with the Union. On the top of a third newsletter, Grosso wrote the
words: “warehouse workers, R.I.P.” Grosso testified that his writing this comment was a say
of saying “Well, if you’re going to be the way you are, and how things are going, you’re dead.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
5
You’ve just died. . . . You lost your soul.”
Grosso does not deny that he wrote the comments totally on his own. He did not
discuss the proposed comments with Huertas or any other employees prior to writing the
comments and leaving them on the newsletters.
2. The responses by the female warehouse employees
Janet Buxbaum has worked for Respondent for 13 years and currently works as an
administrative assistant in the warehouse, reporting directly to the Supply Chain manager.
When she arrived at work on September 10, she walked through the breakroom on her way
to the timeclock. It was at this time that she first saw the newsletters lying on the breakroom
tables. Buxbaum testified that when she read the newsletters, she became angry. She
explained that she found the comment “Hey pussies” as offensive because it referred to a
part of a woman’s body. She acknowledged, however, that she had not found the newsletter
comment “Cat food lovers” to be as offensive. She further testified that she perceived the
comment about warehouse workers R.I.P. to be a threat. She explained that if someone had
written this comment, the individual would be willing to “actually do something.” She went on
to explain that she had felt that if someone in the workplace were angry and did not like her
opinion, the individual might take it out on her. Buxbaum recalled that as soon as Healy
came into the office that morning, she spoke with him about the newsletters. She told Healy
that she took the one comment on the newsletter as a personal threat to her well-being in the
office. She reminded him that the employee handbook addresses a safe work environment
and that something needed to be done. She also told him that the other comments were
offensive to the women who worked in that building. During her testimony, Buxbaum
explained that she interpreted the comment about income to mean that the employees were
to vote for the Union. She further explained that she viewed the R.I.P comment as a threat
that something could happen to warehouse workers if they did not vote for the Union.
Virginia Germino has been employed at the Chester distribution center for
approximately 4 years. As a picker for medical supplies, she is included in the warehouse
bargaining unit. Germino recalled that she learned about the newsletters at or near the time
that employee Joan Bernadino did so. Germino testified that she viewed the hand-written
comments on the newsletters as intimidating and very offensive to her as a woman. She
explained that the words “warehouse workers R.I.P. “was like a threat to her because rest in
peace means “death.” After reading the newsletters, Germino and Bernadino spoke with
Supervisor Frank Petliski. Germino told him that she found the comments in the newsletters
to be intimidating and threatening and that Respondent needed to take the necessary steps
to terminate the author of the comments. Germino recalled that she also spoke with Healy
that same day about the newsletters and she told him that she did not feel safe and that
action was needed. She recalled that when Healy told her about the security cameras at the
facility, she felt a little safer and concluded that perhaps the Respondent did not have to hire
outside security. Germino testified that she also told Healy that whoever wrote the
comments should be fired.
Barbara Moscatelli has been employed by Respondent for 12-1/2 years. For the past
7 years, she has worked as a router in the warehouse. Moscatelli recalled that she first saw
the newsletters with the handwritten comments on September 10, when the newsletters were
pointed out to her by either Janet Buxbaum or Joan Bernadino. She testified that she was
upset when she read the comments. She recalled that the statement “Warehouse Workers
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
6
R.I.P.” upset her more than the other two comments. She explained that the statement
concerning rest in peace indicated death to her. She viewed the comments in the other two
newsletters as derogatory to women. Moscatelli recalled that when she voiced her concerns
to Healey in an individual conversation, she told him that she was deeply concerned. She
also added that these statements must have been written by a driver because the comments
clearly specified warehouse employees. She recalled that Healy asked her if she would feel
better if she had security or some sort of protection. She told him that she would consider it.
Dobkowski first became aware of the handwritten comments on the newsletters when
Joan Bernadino gave them to him. She told him that she had found them on the breakroom
tables. Healey recalled that Dobkowski told him about the newsletters as soon as he arrived
at his office on September 10. Almost immediately after hearing about the newsletters from
Dobkowski, Healey was approached by Buxbaum. She followed him into his office, talking
about the newsletters. Healy recalled that she told him that the comments were offensive
and vulgar and that she found them to be threatening. Buxbaum also told him that the
women employees were upset over the comments that she would like an investigation to find
out who was accountable. Healy recalled that he told her that Respondent would do
everything possible to insure a safe work environment and Respondent would conduct an
investigation. He also added that if needed, he would bring security into the building. Healy
then sought out Germino, Bernardino, and Moscatelli to find out their response to the
newsletters. Healy’s testimony concerning his discussions with Buxbaum, Germino, and
Moscatelli was consistent with the testimony of the three employees.
3. Healy’s meeting with employees
Within a half hour after his conversation with the female employees, Healey held a
meeting with all the warehouse employees. Both Dobkowski and Petliski attended as well.
Healey explained that some inappropriate comments had been written on newsletters and
left in the breakroom that morning. He added that several employees had told him that they
were offended and felt threatened by the comments. He assured the employees that
Respondent had a harassment policy and that the company would take steps to insure their
safety. He also told the employees that this was also an EEO issue and that he would take
steps to find out who was responsible.
During the meeting, Moscatelli spoke and opined that the comments were clearly
written by a driver and that she recognized the handwriting. Healy acknowledged that even
though Moscatelli indicated that she suspected who had written the comments, he did not
ask her to identify the individual and that he sought the assistance of Respondent’s legal
counsel. Healy testified that he wanted to make sure that his actions were appropriate and
that is why he sought out the advice of counsel. When Healy was asked why he did not ask
Moscatelli who may have written the letter, Healy testified that he viewed the circumstances
as a “Catch 22” situation. He explained that because of the upcoming election, as well as his
concern about EEO issues, he felt that he needed to seek the advice of legal counsel before
he pursued the matter. He said that he didn’t want it to be perceived as a witch hunt.
Healy testified that after he became aware of the newsletters on September 10, he
contacted several security companies to find out what needed to be done if security in the
building was deemed to be necessary. He stayed late at work to make sure that all women
had left the building without any problems. He instructed employees as to where they could
park in order that they could be in sight of the security cameras.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
7
Moscatelli testified that after September 10, she took care to park her car within view
of the parking lot security camera. She also confirmed that she made sure that she was not
in the building alone.
C. The Events of September 21, 2009
1. King’s meeting with employees
In advance of the decertification election on September 23, 2009, King held a
meeting with employees on September 21, 2009. Ten of the 12 warehouse employees
attended the meeting along with Petliski, Maloney, and Healey. King testified that he held
the meeting with employees to talk with them one last time before the election. He wanted to
remind them that the Union had been their bargaining representative for over a year and had
not participated in any collective-bargaining sessions. King testified that he told the
employees to judge the Respondent by its history and to vote their conscience.
After he spoke with the employees for approximately 15 or 20 minutes, he asked if
there were any questions. The comments on the union newsletters then became a topic of
the meeting with the warehouse employees. King recalled that employee Barbara Moscatelli
spoke up in the meeting and stated that she had been very offended at the comments written
on the newsletters; felt threatened, and that she wanted an investigation and someone held
accountable. King recalled that employee Janet Buxbaum also spoke out in the meeting,
stating that she thought that the newsletters were unprofessional, offensive, and vulgar and
that she also wanted an investigation and corrective action taken. King additionally recalled
that employee Virginia Germino also spoke out about the newsletters in the meeting. King
recalled Germino’s stating that the comments in the newsletters “crossed the line.” She
viewed the comments as vulgar, intimidating, threatening, and directed toward the female
employees. She wanted an investigation and the person who wrote them to be held
accountable. Germino testified that she asked King if there was a way for Respondent to
find out who had written these comments and he told her that the company was looking into
it. Germino recalled that King ended the meeting by telling the employees that Respondent
would investigate and provided security if needed.
Following the employee meeting, King asked Moscatelli and Buxbaum to memorialize
their complaints in writing. They did so later in the day and submitted the written statements
to King. When King asked Germino if she would put her comments and complaints into a
written statement, she asked him if he could guarantee that her name would be kept
confidential. When he told her that he could not make such a guarantee, she declined to
provide a written statement. Although Joan Bernadino was absent at the time of the
September 21 meeting, she provided a written statement to King on September 25 in which
she voiced her concerns and her reaction to the newsletter comments.
King ended the meeting by assuring the employees that he would investigate the
matter. As the employees were leaving the room, Moscatelli asked King if he would be
interested to know who she thought had written the comments. Although he told her that he
would be interested, he did not ask her to disclose the information at that time. Moscatelli
asked if she could speak with him later in private and he agreed. Later that same day when
Moscatelli met with King in the conference room, she brought with her a stack of drivers’ logs
measuring about 12 inches high with the handwriting of approximately 20 drivers. When she
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
8
handed the logs to King, she told him: “You may want to pay particular attention to the one
on top.” She had placed Grosso’s log on top of the stack. Moscatelli testified that she was
able to recognize Grosso’s handwriting because her job requires that she review the drivers’
logs before they are submitted to their supervisor. Moscatelli recalled that she compared the
handwriting on the newsletters with some of the drivers’ logs before giving them to King.
Moscatelli explained, however, that she really didn’t need to compare all the logs, because
she knew by the penmanship who had written the newsletter comments.
King and Maloney reviewed the handwriting on Grosso’s log as well as the
handwriting on the other drivers’ logs. King testified that he found significant similarities in
some of the letters in the newsletter comments and Grosso’s logs. King asked Healey to see
if there was any handwriting sample in Grosso’s personnel file that could also be used to
compare the handwriting. Healey found a document that had been written by Grosso on May
11, 2009, and he gave it to King for review. In reviewing the document, King again found
similarities to some of the letters contained in the newsletter comments.
2. Management’s meeting with Grosso
After viewing the handwriting samples, King determined that he needed to meet with
Grosso. When Grosso returned to the facility at the end of his deliveries on September 21,
he met with King, Healey, and Maloney in the conference room. There is no dispute that in
previous conversations, King and Grosso often joked with each other about their support for
sporting teams. At the beginning of the meeting King and Grosso talked about the New York
Yankees and the Boston Red Sox teams. King recalled that Grosso had spoken of the Red
Sox having a particularly bad season. Grosso does not deny that at one point in the sports’
discussion with the managers, he commented: “Hey, the Red Sox RIP.” He testified that
when he said this to King, he meant that the Red Sox’s season was dismal and coming to an
end without their being in contention for the pennant.
After the sports’ discussion, King asked Grosso to look at the May 11, 2009 letter
from his personnel file and asked if he had written the letter. After Grosso acknowledged
that he had written the letter, King showed him the three newsletters containing the
handwritten comments. Grosso recalled that when King showed him the newsletters, he
asked Grosso if he had seen them before. Grosso denied that he had. King also asked
Grosso if he saw any similarities in the handwriting on the newsletters and the handwriting in
Grosso’s May 11, 2009 letter. King recalled that Grosso responded that he did not. King
commented on the fact that the newsletter comment about “RIP” was similar to the
expression that Grosso had used earlier in their conversation about the Boston Red Sox and
he asked Grosso to again look at the documents to compare the writing. Grosso testified
that when asked, he acknowledged that he could see similarities in the two writing samples.
King recalled that Grosso responded that he didn’t see anything unusual about the
similar wording because people often use that the expression “R.I.P.” When Grosso asked
King why there was a concern about the comments on the newsletters, King explained that
several employees had complained; viewing the statements as intimidating, vulgar, and
offensive. King testified that initially Grosso stated that he didn’t agree, however, Grosso
later acknowledged that he could see that some of the comments could be offensive to
women. During his testimony, Grosso admitted that when King asked him if he could see
how some people could become upset over the comments written on the newsletters, he had
said “Yes, I could see that.” King asked Grosso if he had written the comments and Grosso
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
9
denied the he did. King testified that after meeting with Grosso, he was reasonably certain
that there were significant similarities in the writing comparisons.
Grosso does not deny that he lied to King about his involvement in the newsletter
comments. He testified, however, that he did not tell King the truth because he realized the
severity of the situation and he “did not want to do any harm” to himself.
D. The Events of September 22, 2009
Grosso recalled that the following day, he felt uncomfortable about the way the
meeting had gone with King. When he tried to call Union Steward Kevin Farrell, Farrell could
not talk with him. Grosso then decided to telephone Union Representative Jerry Ebert.
Grosso had Ebert’s business card in his wallet. When Grosso telephoned the telephone
number that was printed on the bottom of the card, he was not able to reach Ebert. Grosso
noticed that on the same card there was a hand-written phone number next to Ebert’s name.
When he telephoned the handwritten number, someone answered. Grosso testified that he
began the call by saying “Jerry, this is Dale Grosso.” Grosso testified that the individual did
not identify himself and responded with what Grosso described as a grunt-like sound.
Grosso then began to describe the events of the previous day. He told the individual that he
thought that management was trying to persecute him and to target him as the author of the
newsletter comments. Grosso testified that because he had not spoken with Ebert in some
time, he also covered some background information on an incident involving the union
steward and one of the warehouse unit employees. Finally, at some point in the
conversation, the individual responded “So Dale, did you indeed write on those newsletters?”
Grosso recalled that he asked the person if the conversation would be on the record or off
the record. After receiving assurances that it was off the record, he admitted that he had
written the comments on the newsletter.
King was in the conference room on September 22, 2009, when he received a call on
his company cell phone. He recalled that he answered the call by simply saying “hello.”
King testified that the person on the call did not identify himself and asked if King had a
minute to talk. King did not ask the person to identify himself. King recalled that the
individual then began describing the previous day’s meeting and conversation with Grosso.
The individual explained that he had been asked about the comments on the newsletter and
he had repeatedly denied any knowledge of the comments and denied writing the comments.
King recalled that he asked the individual if he had written the comments and the individual
admitted that he had. Realizing that he was speaking with Grosso, King put his cell phone
on speaker phone. Petliski and Maloney were standing at the door of the conference room
and King “mouthed” for them to come into the room with him. King testified that he did so
because he wanted witnesses to a confession that he believed that Grosso was in the
process of giving. While on the speaker phone, Grosso admitted that he had written the
comments on the newsletters. After Grosso did so, King identified himself to Grosso and told
him that he was on the speaker phone and that Petliski and Maloney were in the room with
him. He asked Maloney and Petliski to say good morning to Grosso. King recalled that
Grosso responded by saying “This isn’t Dale, this isn’t happening.” Grosso recalled that he
had been in shock to learn that he had been talking with King. He recalled that he told King
“Well, this is entrapment and this is harassment. And by the way, this isn’t really Dale.” King
testified that at that point it was apparent that Grosso had not been aware that he was talking
with King. He recalled Grosso saying that he thought that he had been talking with “Jerry.”
King recalled saying “Come on Dale. You called me on my company cell phone from your
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
10
company cell phone.” During his testimony, Grosso acknowledged that he didn’t know why
he had written King’s cell phone number on Ebert’s card. He opined “It may have been just
one of those lapses of things I do sometimes. I am not regarded as having the greatest of
organizational skills.” King then asked Grosso to stop what he was doing and to return to the
distribution center.
When Grosso returned to the distribution center, King, Maloney, and Petliski
approached him at his truck. Grosso told them ‘If this is what I think it is, I would like union
representation.” After Union Business Agent Adrian Huff arrived at the facility, King told
Grosso that he was suspended pending the results of an investigation. Grosso removed his
personal items from his truck and took them to his car. Grosso testified that as King walked
with him to his car, King stated “During this investigation, we appreciate that you don’t talk
[sic] anything about what just happened here. We’d prefer that you not talk about it.”
E. The Events of September 23, 2009
The following day, Grosso again met with King and was accompanied by Union
Representative Adrian Huff and Union Steward Kevin Farrell. King testified that at the time
of this meeting, no decision had been made to terminate Grosso. During the meeting,
Grosso admitted that he had written the comments on the newsletters and he explained why
he had done so. He told King that in writing the comments, he had acted as a football coach,
rallying the team. He told King that he didn’t like bullies and that he was looking out for the
“little guy.” King also asked him about his cell phone call the previous day and why he had
denied his identity at the end of the call. Grosso explained that he denied that he was Dale
Grosso because he discovered that he was not talking with Ebert.
F. The Events of September 25, 2009
King emailed a number of documents to Senior Human Resources Manager Tyler on
September 25, 2010. Specifically, he sent a summary of the meeting with employees on
September 21, as well as a summary of his September 21 and September 23 interview with
Grosso. He also sent a summary of his telephone conversation with Grosso on September
22, and written statements from Moscatelli, Buxbaum, and Bernadino. Additionally, King
sent Tyler written statements from Maloney and Petliski and a summary of the meeting on
September 22, with Grosso and the union representative. During a conference call that
same day, Tyler asked Maloney, Healey, and King to describe the events in their own words.
Tyler testified that following his review of the documents and his conference call with King,
Maloney, and Healy, he made the decision to terminate Grosso. He denied that he received
any recommendations from King, Maloney, or Healy concerning Grosso’s discharge and he
testified that the decision was solely his own.
III. ANALYSIS AND CONCLUSIONS
A. Grosso’s Suspension and Discharge
The General Counsel alleges that by writing on the union newsletters, Grosso
encouraged warehouse unit employees to vote in favor of the Union in the upcoming
decertification election and thus, he engaged in protected concerted activity. While this may
have been his intent, it appears that his actions in all likelihood produced the opposite effect.
Nevertheless, it is an employee’s action rather than the result that is determinative in
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
11
establishing protected activity. The General Counsel also alleges that Respondent not only
unlawfully interrogated Grosso about his having written the comments, but that Respondent
unlawfully conducted an investigation into whether Grosso wrote the newsletter comments
and unlawfully directed Grosso not to speak with any employees about the investigation.
Finally, the General Counsel alleges that both Grosso’s suspension and his discharge are
violative of the Act.
1. Whether Grosso’s termination and suspension were violative of the Act
This is a case involving alleged protected concerted activity. There is no dispute that
Grosso wrote the comments on the union newsletters and there is no issue concerning
Respondent knowledge. Respondent asserts that Grosso was terminated because his
writing the comments violated the company EEO and harassment policies and because he
lied to management during the investigation. In cases where there is a dispute concerning
an employer’s motivation in taking an adverse action against an employee, the Board
normally applies an analysis of the evidence under the framework of its pivotal decision in
Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). In cases, however, where the reason for the employee discipline is
undisputed, the Board requires no analysis of motive under Wright Line. Howard Johnson
Co. v. NLRB, 702 F.2d 1, 4 fn. 2 (1st Cir. 1983).4 Once conduct is found to be concerted, the
conduct will be afforded the Act’s protection, except in the narrowest of circumstances when
the conduct is so egregious as to take it outside the protection of the Act, or of such
character as to render the employee unfit for service. Consumers Power Co., 282 NLRB
130, 132 (1986). In order to assess whether an employee’s otherwise protected conduct
may have lost the protection of the Act, the Board has formulated an analysis that is set forth
clearly in its decision in Atlantic Steel Co., 245 NLRB 814, 816 (1979). While the
Respondent’s motivation does not appear to be a paramount issue in this case, I have
nevertheless analyzed Grosso’s suspension and termination under both the Atlantic Steel
and the Wright Line analysis for purposes of completeness.
2. Whether Grosso engaged in protected concerted activity
a. Whether Gross’s conduct was concerted
Section 7 of the Act protects an employee’s right to “engage in . . . concerted
activities for the purpose of mutual aid or protection.” 29 U.S.C. § 157. The Board has
defined an employee’s activity as “concerted” when an employee acts “with or on the
authority of other employees, and not solely by and on behalf of the employee himself.”
Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I). As the Board has explained, this
standard includes those circumstances where individual employees seek to initiate or to
induce or to prepare for group action and not just simply those circumstances where
employees bring group complaints to the attention of management. Air Contact Transport,
Inc., 340 NLRB 688, 695 (2003).

4 The Board also followed this same rationale in its recent decision in Texas Dental Assn., 354
NLRB No. 57, slip op. at 4, (2009). In citing this decision, I am mindful that this decision was rendered
by a two-member Board. In New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010), the Court held
that under Section 3(b) of the Act, a delegee group of at least three members must be maintained in
order to exercise the delegated authority of the Board. The case was remanded for further
proceedings consistent with the Court’s opinion.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
12
The Respondent argues that Grosso’s conduct was not concerted because Grosso
neither acted with or on the authority of other employees, nor did he act to seek to initiate or
induce group action. Respondent asserts that Grosso did not discuss the proposed
comments with anyone before writing them and he wrote the comments without the
authorization of other employees. Respondent further maintains that even though Grosso
testified at the hearing that he wrote the newsletters to get the attention of the warehouse
workers and to keep them from backing down in the upcoming decertification election, he
never gave this explanation to Respondent during the investigation.
As pointed out by the General Counsel, the Supreme Court has long accepted the
Board’s view 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 their worksite. Beth Israel Hospital v. NLRB, 437 U.S. 483,
491 (1978). Contrary to Respondent’s assertions, I do not find it significant that he failed to
articulate his reasons for writing the comments during the course of the investigation. There
is nothing to indicate that Respondent would have viewed Grosso’s conduct any differently
had he given a full explanation for his conduct. Overall, the record reflects nothing to
contradict Grosso’s assertions that he wrote the comments as a means of encouraging the
warehouse employees to vote for the Union in the decertification election. Thus, his
apparent purpose for writing the comments would clearly fall within the framework of Section
7 rights as envisioned by the Board and the Court. Additionally, there was no requirement
that Grosso seek or obtain the authorization of other employees to write the comments.
Clearly, the very act of writing the comments was an effort to communicate with other
employees about their terms and conditions of employment and thus constituted concerted
activity protected by the Act.
b. Whether Grosso’s conduct was protected
Counsel for the General Counsel submits that Grosso’s comments on the newsletters
were evidence of protected union activity because (1) the comments were written on union
newsletters; (2) the comments were written less than 2 weeks before a scheduled election;
(3) the first comment encouraged employees to read the newsletters which contained articles
about the Union’s work on behalf of the Respondent’s employees; (4) the second comment
referred to the employees “income”; and (5) the third comment referred to “warehouse
workers.” The General Counsel asserts therefore that in light of those factors, Grosso’s
conduct was protected under the Act and that Respondent was well aware of all of those
factors.
Citing two early Board decisions, the Respondent asserts that for an employee’s
conduct to be protected, it must be “for the mutual aid and protection of all the employer’s
employees similarly situation.”5 Respondent argues that because Grosso was a part of the

5 Respondent cites the Board’s decision in G.V.R., Inc., 201 NLRB 147 (1973), where the Board,
in affirming an unappealed trial examiner’s decision, simply noted that an employee participating in a
Federal compliance investigation of his employer’s administration of a contract covered by Federal
statute or an employee protesting his employer’s noncompliance of the contract is engaged in
concerted activity for the mutual aid and protection of all the employer’s employees similarly situated.
Neither the Board nor the trial examiner discussed the concept of “similarly situated.” Respondent
also cites the Board’s decision in Bron Const. Co., Inc., 241 NLRB 276, 279 (1979), where the Board
Continued
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
13
driver’s unit and not the warehouse unit, he was not “similarly situated” to the warehouse
employees. I don’t find that either the Board’s decisions in the cases cited by the
Respondent or any other Board or court decision supports such a mechanical dissection of
employee tasks that would remove Grosso from the protection of the Act because he was a
driver rather than a warehouse employee.
Clearly, the protection to be afforded an employee’s conduct hinges upon its purpose.
See Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949). It has long been
recognized that protected concerted conduct includes employees’ activities intended to
induce group activity. NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831 (1984). The
Board has also held that the “object of inducing group action need not be express” but “may
be inferred from the circumstances.” Whittaker Corp., 289 NLRB 933, 933–934 (1988). As
the General Counsel has pointed out, Grosso’s purpose in writing the comments can be seen
in the comments themselves. The comments were written on union newsletters addressing
the warehouse employees who would be voting in a decertification election within 2 weeks
and including an issue involving their pay. Accordingly, Grosso’s actions in writing the
comments fall within the parameters of protected concerted activity. I find that in writing the
newsletter comments, Grosso engaged in protected concerted activity.
3. Whether Grosso’s conduct lost the protection of the Act
Citing the Board’s decision in Atlantic Steel Co., 245 NLRB 814, 816 (1979),
Respondent asserts that even if conduct may otherwise fall within the framework of Section 7
protected concerted activity, the Board and courts have also found that an employee may
engage in conduct that is so opprobrious that it will be unprotected. As the Board has held,
“when an employee is disciplined for conduct that is part of the res gestae of protected
concerted activities, the pertinent question is whether the conduct is sufficiently egregious to
remove it from the protection of the Act.” Noble Metal Processing, Inc., 346 NLRB 795
(2006), quoting Stanford Hotel, 344 NLRB 558 (2005).
a. The Atlantic Steel factors
In its decision in Atlantic Steel, the Board established certain criteria in its analysis of
whether an employee’s statements have crossed the line into unprotected conduct. The
factors are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked
by an employer’s unfair labor practice. Atlantic Steel at 816.
(1) Location of the discussion
The General Counsel asserts that Grosso’s comments did not have any disruptive
effect on the workplace as the comments were written on newsletters and the employees
had a choice as to whether they wished to read the comments. The General Counsel also
_________________________
affirmed the judge in finding that an employee engaged in protected concerted activity. In doing so the
judge noted that the employer was advised of an employee’s “protest on behalf of himself and other
employees similarly situated of” the employer’s noncompliance with a state statute. The employee in
issue was a carpenter and his protest was made on behalf of other carpenters affected by the state
statute. Neither the Board nor the judge provided any further discussion of the concept of “similarly
situated.”
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
14
submits that the conduct took place in the employee breakroom, a designated space for
employees and not a work area. In contrast, Respondent relies upon record testimony
demonstrating that employees walk through the breakroom on a daily basis in order to clock
in and clock out as well as to obtain their handheld devices and to get their work instructions
from their supervisors. The record also reflects that on occasion, employee meetings are
scheduled in the breakroom. Respondent submits therefore that Grosso’s comments on the
newsletters and left on the tables and highly visible to employees entering the breakroom
from the warehouse would have maximum impact on the work force.
With respect to this first factor, I find that the physical location of the activity weighs in
favor of a loss of protection. Grosso’s comments did not occur in the context of an employee
meeting or even in an isolated conversation with a supervisor or another employee. These
comments were written on newsletters that were visible to all employees in a common area
that was accessible and used by both warehouse employees and drivers. The testimony of
the warehouse employees reflects that the comments were easily visible to employees
coming into the breakroom on September 10. Unlike a meeting or a conversation where the
employees would have known the origin of the allegedly threatening and demeaning
comments, employees were unable to ascertain their origin. While some of the employees
suspected that the comments came from the driver’s unit, there was no way for them to know
whether the comments were initiated by one individual or a group of drivers who wanted
them to vote for the Union. Thus, there was no way to evaluate the pervasiveness of the
sentiment or more importantly, to ascertain the likelihood of future comments or threats.
Accordingly, the location and the manner in which the comments were made known to the
other employees caused a greater impact upon the employees than an isolated comment in
a meeting or conversation. In that regard, the location and manner of distribution
exacerbated the disruptive effect and weighs against the Act’s protection for Grosso’s
conduct.
(2) Subject matter of the discussion
Citing the Board’s decision in Verizon Wireless, 349 NLRB 640, 642 (2007), the
General Counsel maintains that “the subject matter of Grosso’s comments was urging his
coworkers to stand up for themselves and to vote for the Union in the election, a central
Section 7 right and thus weighs heavily in favor of protection.” In its decision in Verizon, the
Board analyzed the facts of the case based upon the four Atlantic Steel factors. In that case,
the Board noted that the employee’s comments in issue were made to encourage two other
employees to support the union. While the Board noted that the subject matter favored a
finding that the employee did not lose the protection of the Act, the Board went on to find
however, that the three remaining Atlantic Steel factors weighed against a finding of
protection and the employer’s warning to the employee was not found to violate the Act.
Respondent asserts that the “subject matter of Grosso’s comments was the use of
vulgar and threatening words which are devoid of any substantive content or value.”
Respondent asserts that even though Grosso testified at length about what he “meant” in
writing those comments, he also admitted at the hearing that people could read his
comments and be offended by them. He also acknowledged that the comments could be
demeaning to women and that readers could perceive the comments as referring to women
in a derogatory manner.
With respect to this second factor, I find that the subject matter of the comments
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
15
weighs in favor of protection. Despite the clumsily-composed wording, the apparent purpose
of the comments was to communicate concerns to other employees about terms and
conditions of employment (income) and concerns about whether the warehouse employees
would continue to have union representation.
(3) Nature of the outburst
As indicated above, the nature of the outburst in this case is different from most
reported cases where there is more often an excited and exuberant outburst made in the
course of a conversation or verbal interaction with other employees or a supervisor. There is
no dispute that Grosso made the comments in response to what he perceived to be the
warehouse employees’ sentiments toward the union and the decertification election. The
comments were not made as a part of a conversation or a response to comments by any
other employee or by a supervisor. Citing Datwyler Rubber & Plastics, Inc., 350 NLRB 669
(2007), the General Counsel submits that this Atlantic Steel factor weighs toward protection
because the outburst was “spontaneous, brief, and unaccompanied by physical contact or
threat of physical harm.” While I note that the Board did not find that the employee lost the
protection of the Act in Datwyler, the circumstances of the case were also distinguishable. In
Datwyler, an employee told a supervisor that he was a devil and that Jesus Christ would
punish him and the employer for requiring employees to work a 7-day work week. In finding
that the nature of the outburst weighed in favor of protection, the Board noted that the
outburst did not contain profane language and characterized the comment as spontaneous,
brief, and unaccompanied by physical contact or threat of physical harm. In explaining its
rationale, the Board in Datwyler also referenced its earlier decision in Beverly Health &
Rehabilitation Services, 346 NLRB 1319, 1322 (2006), where an employee’s brief, verbal
outburst of profane language was unaccompanied by insubordination, physical contact, or a
threat of physical harm.
Unlike the circumstances occurring in either Datwyler or Beverly Health, Grosso’s
comments were not a brief response to a supervisor or a coworker without a threat of
physical harm. The comments were memorialized on the newsletters for employees to read
and circulate among themselves and contained wording that was arguably offensive to the
five women warehouse employees and debatably threatening to all warehouse employees.
Although there was no indication that Grosso planned in advance to write the comments, he
nevertheless did so without any provocation by management or other employees. Although
it appears that he took little time in choosing the wording, his comments were not a reflexive
reaction to anything other than his own speculation about the potential outcome of the
decertification election. See Trus Joist MacMillan, 341 NLRB 369, 371 (2004).
(4) Whether the outburst was provoked
The General Counsel contends that even though the record contains no evidence of
an unfair labor practice that provoked Grosso’s conduct, “the issue of provocation is not
relevant here.” The General Counsel maintains that this factor is only relevant when an
employee’s arguably-egregious outburst is directed at a supervisor or provoked by a
supervisor. The General Counsel concedes that Grosso’s comments were not an outburst
and were not directed toward a supervisor. While the General Counsel opines that this factor
neither weighs for or against protection, I find otherwise. The very fact that his comments
were unprovoked by management and were directed solely to employees weighs more in
favor of a loss of protection. To the warehouse employees and the target of his
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
16
communication, these comments came without warning from an unknown source. The
wording suggested that the source was apparently displeased with the warehouse
employees for having initiated a decertification election and the possible removal of the
Union as the bargaining representative. Thus, I find that this factor weighs in favor of a loss
of protection.
b. The use of profanity at Respondent’s facility
In analyzing the Atlantic Steel, factors and the issue of whether Grosso lost the
protection of the Act, it is also helpful to look at the environment in which Grosso engaged in
the conduct in issue. Counsel for the General Counsel very perceptively points out in her
brief that a principal credibility issue in this case is the ancillary issue of the language used in
the workplace. The record is replete with testimony concerning the use of words that could
conceivably fall within the framework of “profanity.” Rather than recounting the testimony of
each witness, it is suffice to say that the testimony could be summarized into two distinct
categories. All of Respondent’s witnesses testified that profanity was not commonplace at
the Chester facility and normally not stated in the presence of management. In contrast, the
General Counsel’s witnesses testified that profanity was commonplace and that it was not
uncommon for the language to be used in front of supervisors. Respondent presented 11
supervisors and employees who testified that profanity and vulgarity were not commonplace
in the Chester facility. In contrast, the General Counsel presented the testimony of Gross
and negotiating committee member Lou Rathbun during the General Counsel’s case in chief
to testify about the use of profane language in the Chester facility. The General Counsel
also presented the testimony of Union Steward Kevin Farrell to address the prevalence of
profanity in rebuttal testimony.
I cannot give adequate attention to the testimony concerning the use of vulgarity and
profanity without including a complete discussion of the testimony of employee Lou Rathbun.
In a record where both parties devoted extensive testimony to the presence or absence of
profanity in the workplace, the General Counsel presented Rathbun as the primary witness
(other than Grosso) to demonstrate the prevalence of profanity at the Chester facility.
Lou Rathbun has worked for Respondent as a route driver since January 2008. In
the course of his work, Rathbun uses an electric pallet jack to move dialysis supplies. About
6 months into his employment, the pallet jacks were in short supply and other employees
began using the jack that he had been using. On one occasion, Rathbun wrote a note and
placed it on the pallet jack that he was using. The note contained the wording “If your name
isn’t on it . . . leave it be and find your own.” When he came in to work the next day, he
found that someone had written the following at the bottom of his note: “Who are you!!??” In
response, Rathbun left a counter note on the jack with the words: “Lou—whiny ass bitch—
got something to say step to me.” After he did so, he found a sticker on the back of his pallet
jack. Rathbun described the sticker as approximately 4 by 6 inches in size and the sticker
contained the printed words “Don’t be a dick.” Rathbun testified that he then took the two
notes to his Supervisor Anthony Dobkowski and told Dobkowski that he needed to get his
drivers in check. Rathbun recalled that Dobkowski looked at the notes and told him that he
would look into it. Rathbun testified that Dobkowski said nothing to him about the wording
that he had used in the notes. Rathbun further testified that even though he made no
personal notes to confirm the discussion with Dobkowski, he made notes in his driver’s log.
He contended, however, that because he is only legally required to keep the driver’s log for a
month, he shredded the log with the reference to the notes and the conversation with
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
17
Dobkowski. Rathbun also testified that the sticker has remained on his pallet since it was
initally placed there. He explained that he parks his pallet jack in the warehouse with the
forks pointed toward the inside and the back of the jack facing out into the warehouse.
Rathbun testified that no supervisor has ever said anything to him about the sticker or told
him to remove it.
In contrast to Rathbun’s testimony, Dobkowski testified that he had never seen either
of the two notes that Rathbun alleged to have shown him and that he had never had any
conversations with Rathbun about such notes. Dobkowski’s testimony also contradicted
Rathbun’s assertion that he had documented the incident in his driver’s log. Dobkowski
explained that the purpose of the driver’s log is to maintain a driver’s activities over a 24-hour
period in compliance with the Department of Transportation’s regulations. Because a driver
is only permitted to work 60 hours in any 7-day period, the logs are a means of recording
time worked and time off. The logs are completed each day by the drivers. Dobkowski
testified that he had personally reviewed all of the hand-written logs completed by Rathbun
for the period of time from February 2009,6 until the present and he had found northing
related to notes concerning the sticker and Rathbun’s jack. Dobkowski also testified that the
logs are retained and are not shredded.
Dobkowski recalled that on July 10, 2009, he was walking through the warehouse
while driver Mark Huertas was off-loading his truck with the electric jack that he shares with
Rathbun. Dobkowski observed the “Don’t be a dick sticker” on the back of the jack. Before
speaking with Huertas, Dobkowski took a photograph of the picture. Dobkowski then asked
him if he had placed the sticker on the jack and Huertas confirmed that he had. Dobkowski
told him that such a sticker was unprofessional and Dobkowski did not want him walking
through clinics or into patients’ homes with such a sticker on the jack. After some discussion,
Huertas agreed that he would remove the sticker. Dobkowski testified that the next time that
he saw this sticker on the jack was on November 18, 2009, when he again saw Huertas in
the warehouse using the electric jack. Dobkowski explained that he rarely crossed paths
with Huertas because the majority of the time, Huertas was out on the road. Normally, when
Huertas returned the jack to the warehouse, the back of the jack was parked facing the wall.
Dobkowski asserted that he would have needed to inspect each jack to have seen the sticker
because a general warehouse walk-through would not have provided him the opportunity to
see a sticker on the back of a jack. When Dobkowski saw the sticker in November 2009, he
asked Huertas why the sticker was still on the jack. Huertas laughed and replied “it’s not
offensive unless your name is Dick.” Dobkowski told him that he needed to remove the
sticker and Dobkowski watched as Huertas did so. Dobkowski acknowledged, however, that
he left the sticker in Huertas’ possession.
Jeff Rogers has been the Distribution Center manager at the Chester facility since
January 2010; succeeding Shane Healy in that position. Rogers testified that he walks
through the warehouse three to four times each day. His last daily walk through the
warehouse occurs at approximately 3:30 or 4 p.m. Rogers explained that in walking through
the warehouse, he has observed that the drivers usually park their electric pallet jacks with
the back against the wall in order that the jacks can be plugged into the electrical outlets on

6 Dobkowski testified that prior to the time period covered by his review; Respondent had used an
electronic system for the daily logs. Because the DOT regulations require that only one daily record is
maintained, drivers cannot have a paper log if there is an electronic log.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
18
the wall. The General Counsel called driver and Union Steward Kevin Farrell as a rebuttal
witness. Farrell testified that he first saw the sticker on Rathbun’s jack in approximately July
2009, and the last time that he saw the sticker was approximately 2 weeks prior to his
testimony. Although Farrell testified that he had also seen the sticker on the jack between
July 2009 and May 2010, he did not identify the number of times or the dates of his
observation. He also testified that the sticker was on the front of the jack and not on the
back. Rogers testified that prior to May 5, 2010, he had never seen the “Don’t be a dick”
sticker on any of the electric jacks. On May 5, 2010 (and after Rathbun’s testimony in the
hearing), Healey specifically asked Rogers to examine the machines for stickers or similar
materials. Rogers recalled that he had thought that it was a weird request, however, he did
so. When he did so, he found the “Don’t be a dick” sticker on the back of Rathbun’s pallet
jack. Rogers also testified that he had found Rathbun’s jack parked with the back toward the
wall with the forks facing into the warehouse. When he found the sticker, he contacted Healy
and Healy told him to remove it.
Based upon the overall testimony concerning the sticker, and specifically with regard
to the testimony of Dobkowski and Rogers, it would appear that the sticker was reapplied to
the jack at least once or twice over the course of the year and despite Dobkowski’s
admonition to Huertas. There was, however, no testimony that any employee complained to
management about the sticker. Although the sticker may have been in place on the jack for
a prolonged period of time, the General Counsel presented no credible evidence that any
manager observed it and allowed it to remain on the jack without comment. Overall, I credit
the testimony of Dobkowski and Rogers rather than Rathbun. There is no dispute that the
jack in question was used to move product into medical facilities and into patients’ homes. It
is incredulous that any management official would have knowingly allowed such a sticker to
remain on the jack in view of Respondent’s customers. Additionally, I do not credit Rathbun’s
testimony concerning his alleged discussions with Dobkowski about the sticker. His
testimony that he shredded his driver’s log is totally inconsistent with a reasonable need to
preserve government required documentation.
In addition to testifying concerning the existence of the sticker, Rathbun testified at
length about the profanity that he has used and heard other employees use at the Chester
facility. Rathbun testified that he had heard employee Huertas use the word “pussies” in
front of Bernadino and that he had also heard Germino use the word “pussies” in reference
to employees who did not join the bargaining committee. Rathbun also testified that he had
heard Moscatelli use profanity. Germino and Moscatelli both denied their use of profanity as
did Buxbaum. While I do not believe that the working environment at the facility was as
pristine and proper as Respondent’s witnesses depicted it, I do not find Rathbun’s overall
testimony to be credible. There are a number of factors that lead me to suspect that
Rathbun’s testimony was biased and colored by his personal animosity toward Respondent’s
supervisors and legal counsel. On cross-examination, Rathbun admitted that he had been
the subject of an unfair labor practice charge with respect to his conduct at one of the
negotiating sessions. When asked if the charge did not in fact allege that he had tripped
Respondent’s chief negotiator, Rathbun responded “I would say that the chief negotiator is
clumsy enough to fall over my feet.” Respondent’s counsel then asked: “And that chief
negotiator would be me, right?” Rathbun responded: “You got it, big guy.” Rathbun also
admitted that prior to his testifying, he received a verbal warning for attendance, a written
warning for attendance, and a final written warning for attendance. Rathbun refused to sign
or acknowledge any of the warnings.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
19
Union Steward Kevin Farrell testified that he has used the term “pussy” in the
workplace and that he has heard other drivers use the word in referring to each other. Farrell
further asserted that he had heard Germino use the word in a heated discussion when she
was thrown off the Union’s negotiating committee. Farrell also admitted that when Petliski
overheard Farrell using profanity to another employee, Petliski admonished him and told him
to watch his mouth.
In listening to the testimony of the General Counsel’s witnesses and Respondent’s
witnesses, it was as though there were two totally separate facilities; one where there is no
profanity and one where profanity is commonplace. Because there are such marked
discrepancies in the overall testimony, I find little basis to substantially credit either group of
witnesses with respect to the prevalence of profanity or vulgarity at the Chester facility. It is
reasonable that the reality lies somewhere in the middle. Respondent argues that even if
profanity did occur in the workplace at the Chester facility, the simple fact that some profanity
was commonplace does not mean that an employee’s vulgar and threatening outburst will be
excused and protected under the third prong of Atlantic Steel. I find merit to Respondent’s
argument. In the Board’s decision in Aluminum Co. of America, 338 NLRB 20, 22 (2002), an
employee used profanity when demanding to file a grievance concerning an alleged contract
violation. The Board noted that there was no question that the employee’s invocation of the
terms of a collective-bargaining agreement and his participation in the filing of grievances
were protected concerted activity. The Board also noted that some degree of profanity was
quite common to the employer’s facility. The Board explained however, that the degree and
the manner in which the employee used profanity was not common or accepted by anyone in
the facility. In the instant case, it is apparent that profanity is sometimes used by the
employees in the Chester facility. As evidenced by Farrell’s testimony, the language used by
the drivers with each other and toward each other may possibly be more colorful than the
language used by the supervisors and some of the employees in the warehouse.
Nonetheless, it is reasonable that some profanity is used by the employees at the facility. I
do not find, however, that such usage is sufficient to envelope Grosso’s comments within the
protection of the Act. Similar to the circumstances in Aluminum Co., Grosso’s comments
went beyond what was normal or tolerated.
c. Conclusions concerning the lawfulness of Grosso’s suspension and discharge
Although Grosso testified that he used the word “pussies” in the newsletter to mean
that the warehouse employees should “man up” and not be like wimps, he also
acknowledged that the word may also refer to a woman’s vagina. At the time that he wrote
the comments, he was aware that there were five women in the warehouse who were eligible
to vote in the decertification election. Although he testified that he was not specifically
directing his comments to the female warehouse employees, he also acknowledged that the
term he used could be demeaning to women. He also admitted that the reader of his
comments could understand them to refer to women in a derogatory manner. Grosso further
confirmed that his use of the words cat food lovers, he was simply using a play on words to
again refer to “pussies.” Grosso further acknowledged that a reasonable person could be
offended by his play on the word “pussies.” Grosso additionally admitted that the phrase
“Warehouse workers R.I.P.” was synonymous with saying “warehouse workers ‘death.”
Grosso admitted that he could understand that women could see “R.I.P.” as threatening
because it refers to death.
Overall, I find that the combination of the comments containing admittedly offensive
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
20
and threatening wording were of a nature to remove Grosso’s conduct from the protection of
the Act. In making this determination, I am mindful that while an employer may lawfully
discipline an employee for making prounion (or antiunion) statements that threaten fellow
employees (for example, with physical harm), an employer may not lawfully discipline an
employee for making prounion (or antiunion) statements that merely cause another
employee to feel uncomfortable.” Chartwells Compass Group, USA, 324 NLRB 1155, 1157
(2004). I am also cognizant that while an employer has a valid interest in protecting its
employees, legitimate managerial concerns to prevent harassment do not justify discipline on
the basis of other employees’ subjective reaction to an employee’s protected activity.
Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000). On the basis of the entire record, I
do not find that Respondent’s adverse action toward Grosso was prompted merely by the
employees’ subjective reaction or asserted discomfort.
Although employees are permitted some leeway for impulsive behavior when
engaging in concerted activity, the Board has found that this leeway is balanced against an
employer’s right to maintain “order and respect” in the workplace. Piper Realty Co., 313
NLRB 1289, 1290 (1994). In its 2007 decision in Verizon Wireless, 349 NLRB 640, 643
(2007), the Board dealt with an employer’s discipline for an employee’s comments while
soliciting two particular employees to support the union. In one instance, the employee
referred to a supervisor as a “bitch.” In a second conversation, the employee referred to a
union-related email and referred to her “f—ing supervisors. Because the employee was
exercising his Section 7 rights to engage in self-organization and encouraging the employees
to support the union, the Board noted that subject matter of the discussion favored a finding
that the employee did not lose the protection of the Act. By contrast, the Board also found
that the location of the discussion, the nature of the outburst, and the absence of unlawful
provocation weighed heavily in favor of a finding that the employee lost the protection of the
Act. Accordingly, when the Board applied all of the Atlantic Steel factors, the Board found
that the employee lost the protection of the Act. In applying the Atlantic Steel factors to the
present case, I must also find that Grosso’s conduct also lost the protection of the Act.
In the earlier portion of this discussion, I noted that it is the employee’s action rather
than the result that determines whether the employee’s conduct is protected activity. In that
same vein, I note that it is also the action, rather than the motivation, that determines
whether the employee loses the protection of the Act. After hearing Grosso’s testimony and
observing his demeanor in the hearing, I do not believe that he took the action that he did
with the intention of offending or frightening the employees in the warehouse unit. Based
upon the overall testimony, it is apparent that he wrote the comments with the intent of
discouraging employees from abandoning their support for the Union. As his testimony
reflects, he hastily wrote the comments without any thought as to the effect of his words. I
believe that he genuinely meant no ill-will to any other employees. Nevertheless, his words
communicated another message to the employees who read the newsletters. His well-
intentioned motivation cannot dispel the nature of the conduct and its impact upon the
warehouse employees reading the comments. Sadly, employees in today’s work
environment are sensitized to threats and dangers that were not even imagined years ago.
Regrettably, there are periodic news stories about employees who injure and kill their fellow
employees for reasons that are totally unpredictable. Thus, any potential threat from a fellow
employee would reasonably be viewed by an employee in the context of heightened
awareness and concern about workplace risks and dangers.
Accordingly, I find that Respondent did not violate the Act when it suspended Grosso
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
21
on September 22, and when it terminated him on September 25. Accordingly, I find no merit
to the complaint allegations relating to Grosso’s suspension and termination as violations of
Section 8(a)(1) of the Act.
d. The Wright Line analysis
The General Counsel submits that because there is no dispute as to the reasons for
Grosso’s suspension and discharge, this case is appropriately analyzed under Atlantic Steel
rather than Wright Line. The General Counsel also submits, however, that it is clear that but
for Grosso’s protected union activity, he would not have been discharged. The General
Counsel suggests that even though the Respondent’s progressive disciplinary policy allows
employees to be discharged on a first offense for serious misconduct, there was no evidence
of anyone disciplined for similar conduct. Tyler testified that he has previously terminated an
employee who threatened to kill employees in the fleet department at Respondent’s facility in
Kenosha, Wisconsin, and he has previously terminated two employees at a California facility
for dishonesty during an investigation into kickbacks. The General Counsel maintains
Respondent would not have investigated the written comments, much less discharged
Grosso, had the newsletters not encouraged employees to vote for the Union in the
upcoming election.
Respondent acknowledges that comparators offered to show discipline given to other
employees are “not exactly analogous” to the instant situation or similarly situated to the
events leading to Grosso’s discharge. Respondent cites the Board’s decision in Merillat
Industries, Inc., 307 NLRB 1301, 1303 (1992), where the Board noted that “it is rare to find
cases of previous discipline that are ‘on all fours’ with the case in question.”
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the General Counsel must prove by a preponderance of the
evidence that union animus was a substantial or motivating factor in the adverse employment
action. The elements commonly required to support such a showing are union or protected
activity by the employee, employer knowledge of that activity, and union animus on the part
of the employer. Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007). If the
General Counsel makes the required initial showings, the burden then shifts to the employer,
to prove, as an affirmative defense, that it would have taken the same action even in the
absence of the employee’s union activity. Manno Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996).
As discussed above, I find that Grosso engaged in protected activity. He wrote his
comments on union newsletters with the purpose of getting employees to not only read the
papers but also to support the Union in the upcoming election. There is also no dispute that
Respondent was fully aware of his conduct when making the decision to terminate him. As I
have also discussed above, his conduct was also of such a nature as to lose the protection
of the Act. The establishment of a prima facie case is also hampered by the lack of evidence
of animus. I find neither direct animus nor a basis upon which to infer animus sufficient to
meet the requirements of the Wright Line analysis. See Meritor Automotive, Inc., 328 NLRB
813 (1999).
The record contains no evidence of antiunion animus by Tyler who appears to be the
only individual who made the decision to terminate Grosso. The only evidence of antiunion
animus related to an alleged statement by King in 2006; more than 3 years prior to Grosso’s
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
22
discharge. Grosso testified that during a meeting prior to the September 5, 2006 election for
the drivers’ unit, King referred to the Union as the “fucking union” or the “fucking Teamsters.”
King denied that he ever made such a statement in any of the meetings. Both Maloney and
Respondent’s Distribution Center Manager Mike Sereno also testified that they attended the
employee meetings with King during this time period and they denied hearing him make such
a statement. Grant Dopheide was director of human resources during the time of the 2006
election. During the campaign period prior to the 2006 election, Dopheide visited the
Chester facility almost weekly. He estimated that he visited the facility between 12 to 18
times during the summer and fall of 2006, and attended approximately 6 of Respondent’s
meetings with employees. He testified that he was aware of no meetings that King attended
that he did not attend. Dopheide denied that he ever heard King use profanity in relation to
the Union or make any threats about the Union during those meetings. Dopheide also
confirmed that since that time, Respondent terminated his employment.
I find Dopheide to be a very credible witness. Despite the fact that he was
involuntarily removed from his job by Respondent, he nevertheless corroborated the
testimony of King, Maloney, and Sereno. Accordingly, I credit his testimony. Even if I fully
credited Grosso’s testimony and find that King made the disparaging remark about the Union
in 2006, I do not find this remote statement sufficient to establish animus for Grosso’s
discharge in September 2009. Although King interviewed Grosso and participated in the
investigation, there is no evidence that King had any role in making the decision to terminate
Grosso. Additionally, I note that there is no evidence that King or any other manager made
any statements during the investigation that disparaged the Union or reflected any animus
toward the Union. Accordingly, the evidence as a whole does not support a finding that an
unlawful discriminatory animus was a substantial or material factor in Respondent’s
motivation to terminate Grosso.
Furthermore, the overall record reflects that even if the General Counsel established
a prima facie case of discriminatory motive, Respondent has met its burden of showing that it
would have terminated Grosso even in the absence of any protected union activity. Manno
Electric above at 280, fn. 12. The Respondent’s employee handbook contains a provision
that prohibits verbal or physical behavior of a sexual nature that creates an intimidating,
hostile, or offensive work environment. (Fresenius Medical Care North America (FMCNA)
employee handbook at p. 45.) The handbook also prohibits abusive, threatening, or violent
behavior. (FMCNA employee handbook at p. 51). There is no dispute that employees
Buxbaum, Moscatelli, Bernardino, and Germino all voiced concerns about the newsletter
comments. Immediately upon finding the newsletters, female warehouse employees brought
their concerns to management and requested that Respondent take action to locate and
punish the source of the comments. To have condoned or ignored Grosso’s conduct would
have disregarded not only the provisions of the employee handbook, but also the concerns of
the female warehouse employees. Additionally, Grosso lied about his involvement in the
newsletter comments. He only admitted to his conduct after he inadvertently admitted to
writing the comments during the telephone conversation with King. There is no evidence that
Respondent has failed to discipline an employee under similar circumstances. Thus, the
overall evidence supports a finding that Respondent would have terminated Grosso even in
the absence of any protected union activity. Accordingly, I do not find that Respondent
suspended or terminated Grosso in violation of Section 8(a)(3) of the Act and the complaint
allegations alleging such should be dismissed.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
23
4. Whether Respondent unlawfully commenced an investigation and unlawfully
interrogated Grosso on September 21, 2009
There is no dispute that King, Healey, and Maloney met with Grosso on September
21 and questioned Grosso about his involvement in writing the comments on the newsletters.
The General Counsel alleges that in doing so, Respondent unlawfully interrogated Grosso in
violation of Section 8(a)(1) of the Act. The General Counsel further asserts that
Respondent’s effort to identify which of its employees were engaged in protected activity
constituted impermissible surveillance and investigation and thus violated Section 8(a)(1).
The Board’s applicable test for determining whether the questioning of an employee
constitutes an unlawful interrogation is the totality-of-the-circumstances test adopted by the
Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union
Local 11 v. NLRB, 760 F. 2d 1006 (9th Cir. 1985). The Board has additionally determined
that in analyzing alleged interrogations under the Rossmore House test, it is appropriate to
consider what have come to be known as “the Bourne factors,” arising from the Court of
Appeals decision in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those factors are:
(1) The background, i.e., is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear
to be seeking information on which to base taking action against
individual employees?
(3) The identity of the questioner, i.e., how high was he in the company
hierarchy?
(4) Place and method of interrogation, e.g., was employee called from
work to the boss’s Office? Was there an atmosphere of unnatural
formality?
(5) Truthfulness of the reply.
In analyzing the Bourne factors, the General Counsel asserts that the questioning
took place 2 days before the decertification election by a company executive, who was at
least two steps above Grosso’s direct supervisor in a conference with two other managers
present. The General Counsel submits that King’s questioning clearly appeared to be
seeking information on which to base disciplinary action against Grosso. Finally, the General
Counsel suggests that “the fact that Grosso did not respond truthfully only makes more
apparent the coerciveness of the interrogation.”
As the Board has noted, the Bourne factors should not be mechanically applied or
used as a prerequisite to a finding of coercive questioning, but rather used a starting point for
assessing the totality of the circumstances.7 Westwood Health Care Center, 330 NLRB 935,
939 (2000). In considering each of the factors, it is apparent that two of the factors weigh
more favorably toward a finding of unlawful interrogation. Those are factors four and five as
described above.
With respect to the Bourne factor relating to location and method of interrogation, I

7 Citing Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998).
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
24
find that the location of the interview weighs more favorably toward interrogation. Although
Respondent contends that the conference room would have been a place where Grosso
would be comfortable because he had attended meetings there in the past, this was also a
command meeting for Grosso and attended by only Grosso and upper level managers.
Despite the fact that there was some light banter about sports at the beginning of the
meeting, it is reasonable that any employee would have appreciated the gravity of the
circumstances and would not have mistaken the meeting as casual or insignificant.
An additional Bourne factor that weighs more favorably toward a finding of
interrogation is the fact that Grosso denied the conduct which was the subject of the meeting.
Had he felt sufficiently comfortable and not threatened, it is reasonable that he may have told
the truth during the interview. The fact that he responded untruthfully supports the inference
that the questioning was coercive.
The remaining three factors, however, do not support a finding of unlawful
interrogation. Although there was a decertification election scheduled within 2 days, there is
nothing in the record to demonstrate a history of hostility and discrimination that would satisfy
the first factor in the Bourne analysis. Grosso had served on the Union’s negotiating
committee and had a history of dealing with King and Maloney in their role as employer
bargaining committee members. There is no evidence to show that this interaction was
fraught with animosity or hostility. Certainly, because of his participation on the bargaining
committee, Grosso’s union sentiments were known to the Respondent. Furthermore, there is
no dispute that Grosso was a known union supporter at the time of the interview.
Additionally, Respondent asserts that the questions asked by King were specifically
geared toward obtaining information only regarding who had written the newsletter
comments and nothing more, citing two relatively recent Board decisions. In Bridgestone
Firestone South Carolina, 350 NLRB 526, 528(2007), an employee was questioned about his
use of profanity and his conduct during a conversation with other employees concerning the
union. Complaints were made to management that the employee in question had used
profane language and acted in a threatening behavior. In finding that the employer did not
engage in unlawful interrogation, the Board noted that the employer had a legitimate basis
for investigating the employee’s conduct and that the employer made reasonable efforts to
circumscribe its questioning to avoid unnecessary prying into the employee’s union views. In
DaimlerChrysler Corp., 344 NLRB 1324, 1328 (2005), a union steward prepared a draft
information request for the employer concerning the discharge of a probationary employee.
In one section of the information request, the steward sought a supervisor’s medical history
and requested information as to whether the supervisor had ever had a substance-abuse
problem or had received treatment for “paranoid schizophrenia, hallucinations, repressed
homosexuality, pedophilia, bestiality, etc. Although the steward ultimately realized that the
request was inappropriate and removed the specific section from the final request form, the
supervisor found a copy of the draft version lying on top of the office copier. Copies of the
draft were also seen by other supervisors and employees. In an investigatory meeting, the
employer’s labor relations supervisor asked the steward questions about the draft information
request and questioned the steward’s as to the extent that it had been copied, distributed,
circulated or saved. In finding that there was no unlawful interrogation, the Board noted that
the interrogation focused specifically on the steward’s involvement with the drafting of the
one specific item in the request for information.
Respondent contends that King never asked Grosso about his views on the Union
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
25
nor would King’s questions elicit such information indirectly. I also note that other than the
initial sports banter, there was no discussion of anything other than Grosso’s handwriting
sample from his personnel file and the handwriting in the newsletter comments. There was
no discussion of the upcoming election or anything in any way related to the Union.
Accordingly, I do not find that Respondent unlawfully interrogated Grosso in violation
of Section 8(a)(1) of the Act and the complaint allegation regarding an unlawful interrogation
should be dismissed.
In further analyzing the record evidence in this case, I do not find that Respondent
unlawfully initiated an investigation in violation of Section 8(a)(1). There is no dispute that on
the same day that the newsletter comments were written by Grosso, female employees in
the warehouse voiced their concerns to management. The employees told management that
they were not only offended by the language, but more significantly, they told management
that they felt threatened by the comments. Healy very candidly admitted that he did not
initiate an investigation to find the author of the comments until he had a chance to get
direction from counsel. Even though Moscatelli suggested that she recognized the
handwriting, Healey was fearful of taking any action. When the female employees again
raised the issue with King on September 21, and after Respondent had consulted with
counsel, Respondent began an investigation to determine the author of the comments.
The General Counsel submits that Respondent’s assertions that the comments
represented a threat to warehouse employees are contradicted by the fact that Respondent
did not initiate an immediate investigation. This argument is somewhat contradictory to the
General Counsel’s assertion that the commencement of the investigation was unlawful. As
pointed out by Respondent, by the time that King interviewed Grosso and began the
investigation, the female warehouse employees had complained three times, to two separate
managers and twice publicly in front of other employees. Had Respondent not initiated an
investigation on September 21, Respondent would have essentially ignored the concerns of
the warehouse employees and neglected the duty to investigate a harassment complaint as
imposed by the Respondent’s harassment policy and employee handbook.
Accordingly, I do not find that the overall evidence supports a finding that Respondent
unlawfully initiated an investigation in violation of Section 8(a)(1) and the complaint allegation
regarding such investigation should be dismissed.
5. Whether Respondent unlawfully directed Grosso not to speak with other employees
The complaint alleges that during the September 22 investigative meeting,
Respondent, acting through King, unlawfully directed Grosso not to speak with any other
employees about the investigation. It is a well established principle that an employer violates
Section 8(a)(1) of the Act when it prohibits employees from speaking to coworkers about
discipline and other terms and conditions of employment. SNE Enterprises, Inc., 347 NLRB
472 (2006). The Board has determined that an employer cannot, without a demonstrated
legitimate and substantial business justification, lawfully instruct employees not to discuss
among themselves issues relating to their terms and conditions of employment. See
Westside Community Mental Health Center, 327 NLRB 661, 666 (1999) (employer’s
instruction not to discuss an employee’s suspension with anyone violated the Act, particularly
when the prohibition restricted employees “from possibly obtaining information from their
coworkers which might be used in their defense”).
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
26
Respondent asserts that Respondent’s interests in having Grosso keep the
investigation confidential as to other employees outweigh Grosso’s interest in discussing the
investigation and thus the confidentiality request was “lawful.” Respondent cites the Board’s
decision in Caesar’s Palace, 336 NLRB 271 (2001), where the employer imposed a
confidentiality rule during an investigation of alleged illegal drug activity in the workplace. In
that case, the Board found that the employer had established a substantial and legitimate
business justification for its rule and the justification outweighed the rule’s infringement on
employees’ rights. Respondent submits, that just as in the Caesar’s Palace case,
Respondent had a “legitimate and substantial business interest in protecting the safety of
four witnesses who were afraid, threatened, and intimidated and in ensuring that they would
not be subject to any retaliation.”
Certainly, the Board has found that in deciding whether a rule unlawfully prohibits
employee discussion of discipline or disciplinary investigations, it determines whether the
employer’s asserted business justifications for the prohibition outweighs employees’ Section
7 right to discuss such terms and conditions of employment. Caesar’s Place above at 272. I
find, however, that the circumstances of the instant case are distinguishable from those
before the Board in Caesar’s Palace. In Caesar’s Palace, the employer imposed a
confidentiality rule during the investigation of alleged illegal drug activity in the workplace.
Additionally, the investigation involved allegations of a management cover up and possible
management retaliation. The employer put the rule in place not only to ensure the safety of
witnesses, but also to make sure that evidence was not destroyed or that testimony was not
fabricated. In the instant case, Respondent was already in possession of the physical
evidence; the newsletters containing the written comments. By the time of the statement to
Grosso, Respondent was in possession of written statements from employees who had
complained about the comments. Additionally, after his meeting with King on September 21,
Grosso was already aware that he was a suspect in the investigation. Moreover, by
September 22, Grosso knew that he had already inadvertently admitted to the conduct during
his telephone conversation with King. The circumstances are more comparable to those
found in Mobile Oil Exploration & Producing, U.S., Inc., 325 NLRB 176, 178–179 (1997),
where the Board found that the employer failed to demonstrate substantial confidentiality
interest to justify discipline of employee where the target of the investigation had already
been informed of the investigation. The Board noted that there was no possibility of
prematurely alerting the target of the investigation and thereby compromising the
investigation.
Respondent also argues that its infringement of Grosso’s Section 7 rights were very
slight because Grosso was only “encouraged” and not “mandated” to keep the investigation
confidential from other employees. Grosso testified that on September 22, King told him that
during the investigation, he would appreciate Grosso’s not talking about what had just
happened. Maloney testified that King “encouraged” Grosso not to speak with other
employees. Certainly, there is no evidence that Grosso was threatened with discipline if he
spoke with other employees or failed to maintain the confidentiality requested by King.
Based upon the circumstances of the statement, the “request” was nevertheless just as
restrictive as a directive with a threat of discipline. The request was given in conjunction with
a notice of suspension and Grosso’s expulsion from Respondent’s property. Although King
may have said that he would “appreciate” Grosso’s silence, Grosso was well aware of the
gravity of the situation. He had, in fact, written the comments and he had already admitted to
having done so after an initial denial. His prospects for continued employment were tenuous.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
27
Any request by King was a directive under the circumstances.
Accordingly, I find that King’s instruction violated Grosso’s Section 7 right to consult
with fellow employees for his mutual aid and protection and thus violated Section 8(a)(1) of
the Act.
IV. ADMISSIBILITY OF INVESTIGATIVE NOTES
During the hearing, Respondent sought to introduce notes8 that were written by
Supervisors King, Maloney, Petliski, and Healy. Respondent asserted that these notes were
“memos to the file” that memorialized various events or conversations in which the managers
participated. Respondent asserts that these notes are admissible for the truth of the matter
asserted and are exceptions to the hearsay as they are business records pursuant to Rule
803(6) of the Federal Rules of Evidence. Counsel for the General Counsel does not object
to the admission of these documents for the limited nonhearsay purpose that they were
purportedly relied upon by Tyler in deciding to terminate Grosso. The General Counsel
does, however, object to admitting the notes for the truth of the matter asserted. I reserved
ruling on the admission of these documents, allowing counsel to submit additional argument
in support of their positions in their posthearing briefs.
Respondent asserts that memoranda written contemporaneously with an
investigation which are kept in the regular course of business are business records which are
admissible pursuant to Rule 803(6). Respondent submits that the Board has adopted this
same rule with respect to the admissibility of managerial notes taken during the course of
investigations and interviews. In support of this argument, Respondent cites two
administrative law judge decisions. In one case, the judge received an investigative report of
an individual who did not testify in the hearing and prepared the report pursuant to a
government agency. In the second case, the judge received a supervisor’s memorandum
finding that it was not prepared in anticipation of litigation and prepared in the regular course
of business. In as much as administrative law decisions are not binding precedent; I do not
find the judges’ admission of investigative memoranda in these cases to be significant.
Certainly, the courts have found that various memoranda may be admitted as a
hearsay exception under Rule 803(6). In its brief, Respondent cites the court’s decision in La
Day v. Catalyst Technology, Inc., 302 F.3d 474, 491 fn. 7 (5th Cir. 2002). In that decision,
the court noted that investigative memoranda may be admitted as an exception to the
hearsay rule if the document was prepared “at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity to make” the
document. Ibid.
Respondent seeks to introduce the file notes that Petliski and Maloney prepared
concerning the September 22, 2009 telephone conversation between Grosso and King, as
well as the file notes prepared by Petliski and Maloney concerning King’s conversation with
Grosso when Grosso returned the truck on September 22. As counsel for the General
Counsel points out in her posthearing brief, both Petliski and Maloney admitted that these
documents were the first memos to the file of any kind that they had ever prepared during

8 These notes were identified as Exhs. 13, 14, 15, 16, 17, 19, 20, 21, and 23.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
28
their tenure with the company. Petliski further testified that he printed out the hard copies of
each memo, gave them to King, and then deleted the electronic file copy from his computer.
He kept no copy and was unaware as to whether the documents were maintained anywhere
in the company files.
Respondent also seeks the admission of King’s memo to the file dated September
21, 2009. In the memo, King describes his meeting with employees and includes the various
statements made in the meeting by Moscatelli, Buxbaum, and Germino. Not only did King
testify in the hearing, but also the three employees whose statements he recited in the
memorandum. Certainly, there can be no assertion that in giving these statements, these
employees were “acting in the regular course of business.” The inclusion of their out of court
statements incorporated in King’s memorandum can be nothing other than pure and simple
hearsay. Thus, the overall evidence is insufficient to demonstrate that it was the regular
business practice for Respondent to make the notes that it seeks to offer for the truth of the
matter asserted.
Counsel for the General Counsel asserts that even if the documents in issue satisfied
the threshold definition of business records, the documents cannot be admitted because their
“circumstances of preparation lack trustworthiness.” Fed. R.Evid. 803(6). Specifically, the
General Counsel maintains that the documents are unreliable because the documents were
prepared in anticipation of litigation. In contrast, Respondent argues that the memos to the
investigative file and the notes of the September 23 interview were all recorded during the
course of the investigation and prior to any recommendation or decision to terminate Grosso.
Respondent submits that simply because memoranda are prepared during the course of an
investigation which could potentially result in the discipline or termination of an employee, or
an eventual legal action, does not exclude the document as a business record exception.
Respondent cites the court’s decision in Crimm v. Missouri Pacific Railroad Co., 750 F.2d
703, 709 (8th Cir.1984), where the court allowed the admission of handwritten notes and an
investigative report that were prepared 9 months before any complaint or suit had been filed
and the notes and report were maintained at the employer’s office. Additionally, in admitting
these documents, the Court also noted that the documents were offered to demonstrate that
the employer had conducted an investigation and to show the information that the employer
relied on in making its decision. Specifically, the Court noted that the records were not
offered to provide the truthfulness of the statements contained therein. Ibid. In the instant
case, the disputed documents are alleged to have been created during the course of the
investigation and prior to Grosso’s discharge or to the filing of any unfair labor practice
charge concerning his discharge. Healy admits, however, that one of the first things that he
did after learning of the newsletters was to contact legal counsel for direction as to how to
proceed. All but one of the nine documents in issue show that both Respondent’s corporate
counsel and Respondent’s outside counsel were copied. As counsel for the General
Counsel suggests, Healy had good reason to believe that Respondent’s actions could result
in Board charges as the Union had previously filed charges against Respondent concerning
other employees. It is not inconsequential that these newsletter comments were written in
the midst of, and in response to, a decertification election that was to be held within days of
the creation of these memoranda. Healy specifically mentioned his concern about handling
the issue of the comments in light of EEO issues and the upcoming election. Thus, it was
reasonable that Respondent’s counsel was apprised of the documents as they were created.
To assume that Respondent’s managers prepared these documents without any
consideration of potential litigation requires an incredible level of naïveté. Thus, the
trustworthiness of these documents is most certainly reduced by the anticipation of litigation.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
29
Respondent also seeks to introduce a memo prepared by Healy, describing the
September 23, 2009 interview with Grosso in the form of a transcript. There is no evidence
that the interview was mechanically recorded and the memo is simply Healy’s recall of
statements made by the various participants. Inasmuch as Healy testified in the hearing, his
prepared transcript is not relevant to establish the substance of the interview.
Accordingly, I do not find a sufficient basis to admit these documents as business
records within the meaning of Rule 803(6) and to receive them into the record to show the
truth of the matters asserted in the memoranda. If accepted for the truth of the matter
asserted, they can at best only serve as a means to bolster record testimony. All of the
individuals who prepared the memoranda testified at the hearing and specifically testified
concerning the incidents that are the subject of the notes. Thus, the additional notes tracking
their testimony, is superfluous.
Respondent submits that even if the documents are not admitted as business
records, they are admissible as nonhearsay to show the documents upon which Tyler
reviewed and relied upon in making the determination to terminate Grosso. On that basis
and that basis alone I will admit the documents in issue. I do not, however, receive the
documents for the truth of the matter asserted. Thus, I receive Respondent’s Exhibits 13, 14,
15, 16, 17, 19, 20, 21, and 23 for the limited basis identified herein.
In her posthearing brief, counsel for the General Counsel renews an objection to the
admission of Respondent’s Exhibit 46 that was received into evidence during the hearing.
The document is a log of events for 2009 prepared by Dobkowski and relating to employee
Huertas. Dobkowski testified that he maintains such a log on all of the drivers; documenting
not only disciplinary actions, but any other events that are pertinent to the specific driver.
The first entry in the log is March 2, 2009; documenting that Huertas went home early
because of the weather. The last entry for 2009 is December 28, 2009; documenting that
Huertas called in sick. Throughout the log are numerous other entries, including a
documentation of Dobkowski’s conversation on July 10, 2009 concerning the “Don’t be a
dick” sticker on the electric jack. The General Counsel asserts that this document should not
have been admitted into evidence because it is maintained sporadically and not on a regular
basis. The General Counsel also asserts that there is no company policy that mandates that
Dobkowski maintain this log and that there was no practice of his sharing the information with
others in the company.
The fact that Dobkowski did not routinely share this information with other supervisors
and did not prepare the log in accordance with a specific company policy does not negate its
status as a business record. I credit the testimony of Dobkowski that he maintains this same
kind of record with respect to each of the drivers that he supervises. Unlike the documents
described above that were created solely to memorialize the events surrounding Grosso’s
discipline, this log was maintained by Dobkowski in the regular course of his supervision of
Huertas and relates to a variety of matters involving Huertas. Accordingly, I find no basis to
reverse my ruling as to the admissibility of Respondent’s Exhibit 46.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
30
CONCLUSIONS OF LAW
1. Respondent Fresenius USA Manufacturing, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. By directing Kevin “Dale” Grosso not to speak with any employees about the
investigation, Respondent violated Section 8(a)(1) of the Act.
3. I do not find that the Respondent violated the Act in any other manner.
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.
The Respondent shall be required to post a notice that assures its employees that it
will respect their rights under the Act and not prohibit their speaking with each other about
their discipline and other terms and conditions of employment.
The General Counsel requests that the remedy includes a requirement for intranet
posting of the notice. The General Counsel submits that there is record testimony confirming
that company policies and the employee handbook are available to the employees on the
intranet. Buxbaum also testified that she provides a password for the intranet to new
employees starting at the facility.
While I have found that Respondent violated the Act, the violation committed by the
Respondent is of the type normally remedied by a standard Board Order and physical notice
posting at the location involved. In support of the request for intranet posting, the General
Counsel cites the Board’s decisions in Nordstroms, Inc., 347 NLRB 294 (2006), and Valley
Hospital Medical Center, Inc., 351 NLRB 1250, 1250 fn. 1 (2007). In its decision in
Nordstrom, Inc., the Board stated that it would be open to considering the merits of a
proposed modification to the Board’s standard notice-posting language in a particular case if
the General Counsel or a charging party adduced evidence demonstrating that a respondent
customarily communicates with its employees electronically and proposes such a
modification to the judge in the unfair labor practice proceeding. The Board did not find,
however, that such steps had been met in the case before them. In its decision in Valley
Hospital Medical Center, Inc., the Board dealt with a request to order an email distribution of
the Board notice. The Board noted that while there was some limited evidence that the
Respondent had begun posting some of its policies on its intranet, the evidence was
insufficient to find that the Respondent customarily communicated with employees
electronically and the request was denied. In the instant case, there is evidence that certain
policies and procedures are available to employees via the intranet and that employees are
given access to the intranet upon employment. I am not convinced, however, that the
evidence is sufficient to show that Respondent “customarily communicates” with employees
electronically. The fact that certain employment related documents may be available to
employees for viewing on the intranet does not establish that the intranet is the customary
means of communication to employees. Accordingly, I deny the General Counsel’s request
for the intranet posting.
JD(ATL)–17–10
5
10
15
20
25
30
35
40
45
31
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
The Respondent, Fresenius USA Manufacturing, Inc., Chester, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from:
(a) Telling its employees that they cannot talk with other employees their
discipline or other matters relating to their terms and conditions of employment.
(b) 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 facility in
Chester, New York, copies of the attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since
September 22, 2009.
(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.
Dated, Washington, D.C., August 19, 2010.
Margaret G. Brakebusch
Administrative Law Judge

9 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.
10 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–17–10
Chester, NY
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 tell our employees that they cannot talk with other employees about
discipline, or other matters affecting their terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
FRESENIUS USA MANUFACTURING, 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.
26 Federal Plaza, Suite 3614, New York, New York 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICAL 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, (202) 264-0346.