Louis Trauth Dairy, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 20, 2006

09-CA-042892 (N.L.R.B. Dec. 20, 2006)

JD(ATL)–41–06
Louisville, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
LOUIS TRAUTH DAIRY, LLC
and CASES 9-CA-42852
9-CA-42962
JAMES TOMASKEVITCH, an Individual
Eric V. Oliver, Esq., for the General Counsel.
Mark J. Stepaniak, Esq., for Respondent.
DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried
in Cincinnati, Ohio on November 14, 2006. The charge in Case 9-CA-42852 was filed by
James Tomaskevitch, herein Tomaskevitch, on May 17, 2006.1 On July 17, 2006,
Tomaskevitch filed the charge in Case 9-CA-42962. Based upon the allegations contained in
these charges, an order consolidating cases, consolidated complaint, and notice of hearing
issued on September 29, 2006. The consolidated complaint alleges that on April 6, 2006,
Respondent, acting through Gary Sparks, violated Section 8(a)(1) of the Act by ordering an
employee not to serve Respondent with any more Board documents. The consolidated
complaint also alleges that Respondent, acting through Gary Sparks, threatened an employee
by placing a written document in the employee’s personnel file stating that he would be
disciplined if he worked while under a doctor’s note in order to discourage his union or
protected concerted activities. Respondent filed a timely answer denying the essential
complaint allegations.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the closing arguments given by counsel for the General Counsel and counsel
for the Respondent, I make the following:

1 All dates are in 2006 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
Respondent, a corporation, with an office and place of business in Louisville,
Kentucky, has been engaged in the wholesale distribution of dairy products in the Greater
Louisville, Kentucky area. Annually, Respondent sells and ships goods valued in excess of
$50,000 from this Louisville, Kentucky facility directly to customers located outside the
Commonwealth of Kentucky. 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. Respondent
additionally admits and I find that Teamsters Local 89, International Brotherhood of
Teamsters, herein the Union, is a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices
A. Background
Respondent’s District Branch facility in Louisville, Kentucky, has no production
component and employs approximately 18 to 20 employees to distribute milk products in the
Louisville, Kentucky area. Gary Sparks, herein Sparks, is Respondent’s General Manager
and Timothy Wayne Sandfoss, herein Sandfoss, is Respondent’s Distribution Manager. Both
Sparks and Sandfoss maintain their office at Respondent’s Newport, Kentucky facility.
Sparks estimates that he visits the Louisville facility approximately two to three times each
month. Matt Spradlin, herein Spradlin, is Respondent’s Manager for the Louisville facility.
Nadine Wilkerson, herein Wilkerson, is the administrative secretary/customer service order
clerk for the Louisville facility.
Tomaskevitch has been employed by Respondent as a route sales driver at the
Louisville facility for approximately nine years. During the regular school year,
Tomaskevitch primarily delivers milk to the Catholic Archdiocese schools in Louisville.
During the summer months, he is assigned to a variety of routes. In 2000 and again in 2005,
the Union conducted organizing campaigns at Respondent’s Louisville facility.
Tomaskevitch testified, without contradiction, that he actively supported the Union during
both organizing campaigns. He maintained that he ran the campaigns at Respondent’s
facility. He recalled that he not only handed out authorization cards, but he also spoke out in
meetings and openly opposed Sparks and Sandfoss during the campaigns. In 2000, the Union
lost the election by a vote of 13 to 11. In 2005, the Union lost the election by a vote of 10 to
9. Tomaskevitch testified that in October 2005, he accused Sparks of threatening employees
with plant closure and the loss of jobs during both the 2000 and the 2005 election campaign.
Tomaskevitch also testified that he told Sparks that he would never let him get always with
that again.
B. Tomaskevitch’s Charge-Filing and Litigation Activities
In approximately February or March 2005, Tomaskevitch filed a civil law-suit against
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Respondent. The record does not reflect the basis for the suit or the current status of the civil
suit. On January 12, 2006, Tomaskevitch sent Sparks four separate unfair labor practice
charge forms, alleging various unlawful actions. Because the forms did not contain any
designation of receipt by the National Labor Relations Board, herein the Board, the forms
appeared to be drafts of charges that Tomaskevitch intended to file with the Board.
Tomaskevitch testified that while he had spoken with someone at the Board’s regional office
about filing a charge or charges, he had not really understood what he was required to send to
the employer. He explained that because of his confusion, he had not known whether he was
to submit one charge form with all his allegations or whether he was supposed to file multiple
charges to cover each allegation.
By letter postmarked January 17, 2006, Respondent received written notice from the
Board’s Regional Director for Region 9 that Tomaskevitch had filed a charge in Case 9-CA-
42569 on January 13, 2006. The charge contains the handwritten allegation: “Matt willfully
withheld stops he promised to give me at the start of the school year to punish me for being a
union supporter, August 30, 2005.” In a letter to Respondent’s attorney dated February 2,
2006, the Board’s regional office set forth Tomaskevitch’s unfair labor practice allegations
and requested that Respondent provide witnesses and evidence in response to the charge. In
the body of the letter the investigating Board agent enumerated eleven2 separate allegations of
unlawful activity. The charge allegations included not only various alleged threats and
interference during the Union’s organizing campaign, but also six alleged discriminatory
actions toward Tomaskevitch because of his union activities.
By letter dated March 22, 2006, the Regional Director for Region 9 informed
Tomaskevitch that he had determined that no further proceedings were warranted on his
charge and that the charge was dismissed. In specific detail, the Regional Director explained
that the evidence did not support Tomaskevitch’s allegations that Respondent had violated
8(a)(1) and (3) of the Act. On March 31, 2006, Tomaskevitch mailed an appeal to the
General Counsel’s Office of Appeals concerning the dismissal of his charge. In an envelope
postmarked April 3, 2006, Tomaskevitch also mailed a copy of his appeal to Sparks at his
Newport, Kentucky office.
C. Tomaskevitch’s Absence from Work Because of Surgery
On Friday, March 31, 2006, Tomaskevitch underwent nasal surgery. He testified that
approximately two weeks before the scheduled surgery, he spoke with Spradlin concerning
his surgery and his anticipated absence following the surgery. Tomaskevitch maintained that
he told Spradlin that following his surgery, he planned to work on Thursday, April 6. Spradlin
voiced no objection. Tomaskevitch further testified that on the Friday before his surgery, he
again reminded Spradlin of his scheduled surgery on March 31, 2006 and his plan to work on
the Thursday following his surgery. Tomaskevitch testified that Spradlin responded that his
doing so would “be fine.”

2 Five of the enumerated allegations were identified as allegations that had also arisen in Case 9-CA-
42282. The letter did not identify the status of the prior charge.
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Following his surgery on March 31, Tomaskevitch was discharged from the hospital
on April 1, 2006. Upon his hospital discharge, he received a handwritten note prepared by his
physician. The note provided: “Needs one week off minimum.” Tomaskevitch
acknowledged that even though he had asked his physician to release him to work on the
following Thursday, the physician had nevertheless written the note to cover his absence for
the entire week. Tomaskevitch also received discharge instructions from the hospital when he
was discharged on April 1. The section of the instructions entitled “Activities” provided that
Tomaskevitch could return to work on Monday, April 10, 2006.
On Monday, April 3, Tomaskevitch took the physician’s note to Respondent’s facility
and gave it to Wilkerson. He acknowledged that there is no company policy that required him
to present the doctor’s note as he did. He testified that he brought the statement to Wilkerson
because it just seemed logical to do so. Tomaskevitch also gave Wilkerson the necessary form
requesting pay for his sick leave. There is no dispute that Tomaskevitch had five paid sick
leave days available to him prior to the time of his surgery. Tomaskevitch testified that he
told Wilkerson to remind Spradlin that he would be coming in to work on Thursday. He
admits that he does not know if she did so.
D. Tomaskevitch’s Return to Work on April 6, 2006
On April 6, Tomaskevitch arrived at the facility at approximately 3:00 a.m. He
checked the delivery truck and the load bars to make sure that the load of milk was secure and
then left the facility for his deliveries at approximately 3:30 or 3:45 a.m. Spradlin, Wilkerson,
Sparks, and Sandfoss were not present at the facility at that hour.
Accompanied by Sandfoss, Sparks visited the Louisville facility on April 6. On that
same day, Spradlin was away from the facility and working in Evansville, Indiana. Sparks
recalled that they arrived at the facility at approximately 11:00 a.m. or 11:30 a.m. Prior to his
arrival, Sparks had contacted Sales Representative Rick Tapp and informed him of his visit.
After arriving at the facility, Sparks, Sandfoss, and Tapp left for lunch. Sparks explained that
he wanted to meet with Tapp to review his work and to get a good sense of the Louisville
market. After lunch, Sparks, Sandfoss, and Tapp visited some customers and then returned to
the facility between 2:00 p.m. and 3:00 p.m.
Sparks testified that after returning to the facility, Wilkerson gave him Tomaskevitch’s
doctor’s note. Sparks recalled that Wilkerson explained that Spradlin was not there and she
just wanted to let him (Sparks) know that Tomaskevitch was working when it looked as if he
was not supposed to be working.3 Sparks testified that when Wilkerson gave him the note, he
had just assumed that she had received the note that same day. When Tomaskevitch returned
to the facility at approximately 5:30 or 6:00 p.m. that afternoon, he was called in to speak
with Sparks and Sandfoss. Sparks made no attempt to speak with Spradlin about the note
prior to his meeting with Tomaskevitch. Sparks testified that the situation “did not seem like

3 Wilkerson was not called as a witness during this proceeding.
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a big deal” and he thought that Tomaskevitch would have an explanation for his working that
day.
E. The April 6, 2006 Meeting as it Related to Tomaskevitch’s Appeal
Tomaskevitch testified that when he entered the office to speak with Sparks and
Sandfoss, he saw a copy of his Board appeal notice on the desk. Tomaskevitch testified that
Sparks began the meeting by shaking the form in his hand and stating: “Don’t you ever, don’t
you ever, don’t you ever send me anything like this again.” Tomaskevitch recalled that he
replied: “Gary, don’t you realize that’s my responsibility by law. I have to send that form to
you and I wouldn’t want my appeal to get kicked back for a procedural error.” Sparks then
asked: “You mean you were told to send this?” In response, Tomaskevitch explained his
understanding of the procedure in filing an appeal. Tomaskevitch confirmed that after he told
Sparks that he was supposed to send him (Sparks) the notice of the appeal, Sparks responded:
“That’s what you should do.” Sparks, however, testified that he had simply told
Tomaskevitch that it was not necessary for him to mail him documents of all NLRB actions.
Sparks also recalled that Tomaskevitch told him that he understood that the appeals procedure
required him to send copies to Respondent. Sparks recalled that he responded: “If they tell
you to do so, that’s fine.” Sparks denied ordering Tomaskevitch to “never serve” him with
such a document.
F. The Meeting as it Related to Tomaskevitch’s Working without a Doctor’s Release
In contrast to Tomaskevitch’s description of the meeting, Sparks recalled that the
meeting began by his addressing Tomaskevitch’s working without a release from his doctor.
Sparks showed the note to Tomaskevitch and asked if he had any other documentation to
show that he was released to return to work. Tomaskevitch recalled that Sparks began the
discussion about his working that day by saying: “You are not supposed to be working
today.” Sparks testified that Tomaskevitch then asserted that he had tried to get a release
from the doctor but had been unable to do so. In his testimony, Tomaskevitch also admitted
that he had told Sparks that while he had tried to get a release from his doctor, he had been
unable to do so. Tomaskevitch told Sparks that he had come in to work because he needed to
deliver the milk to his school customers for the following Monday. Tomaskevitch also
explained that he could not return to work the following day because he was scheduled to
have his surgical stints removed. Sparks asserted that he did not yell at Tomaskevitch or even
raise his voice. Sparks maintained that he simply told Tomaskevitch that his working in such
circumstances was against company policy. If he failed to adhere to the policy in the future,
he would be disciplined. Tomaskevitch recalled that Sparks told him that as a “rule of
thumb,” he should not work if he had a doctor’s note to the contrary and that he should not do
so in the future. Tomaskevitch also confirmed that Sparks had not spoken harshly when he
spoke about his working and the doctors’ note.
Following the meeting, Sparks prepared a hand-written note outlining how he came to
meet with Tomaskevitch and the events of the meeting. With respect to the threat of
discipline to Tomaskevitch, Sparks recorded: “I told him that if he has a doctor’s note saying
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he can’t work – then he should not work. I indicated to him, in the future this would result in
discipline.” Sparks testified that he memorialized the meeting in order to document for the
future that he had spoken with Tomaskevitch about the policy. Sparks maintained that he had
not given Tomaskevitch a copy of the note because Tomaskevitch had not been disciplined.
III. Conclusions and Findings of Fact
A. Whether Respondent Ordered Tomaskevitch to Stop Serving Board Documents
Tomaskevitch testified that as Sparks shook the appeal form at him, he told
Tomaskevitch to never send him anything like that again. Sparks, however, testified that he
had simply told Tomaskevitch that it was not necessary for him (Tomaskevitch) to mail a
copy of the appeal directly to his office. Both Tomaskevitch and Sparks concur that after
Tomaskevitch explained that the Board instructed him to send notice of his appeal, Sparks
replied: Well then, if that’s what they told you to do, then that’s what you should do.”
To the extent that the testimony of Tomaskevitch and Sparks differ concerning this
portion of the conversation, I credit Tomaskevitch’s testimony. Sparks’ testimony is simply
less plausible in light of the undisputed facts. Sparks does not dispute that he brought
Tomaskevitch’s appeal notice with him to the Louisville facility. It is apparent that whether
or not Sparks had spoken with Tomaskevitch about his working without a release from his
doctor, Sparks intended to address Tomaskevitch’s appeal during this visit to the Louisville
facility. Had Sparks simply wanted to inform Tomaskevitch that it was not necessary for him
to send Sparks a copy of the Board document, he could have delegated that task to Manager
Spradlin. As evidenced by his actions, however, Sparks chose to deliver this message
personally and within only days of his receipt of the notice. In his apparent haste to swiftly
deliver this message, he did not even wait for Spradlin to be present at the facility. Thus,
Sparks’ undisputed actions demonstrate that he intended to convey a far stronger message
than the mild and unemotional statement that he contends that he made to Tomaskevitch.
This conclusion is further bolstered by the fact that prior to his receiving Tomaskevitch’s
March 30th appeal notice, Sparks had already received four other charges from Tomaskevitch
in January. Additionally, I note that while Sandfoss was called as a witness for Respondent,
he did not dispute Tomaskevitch’s testimony with respect to Sparks’ remarks about his
receiving the appeal notice. Sandfoss testified that he heard “bits and pieces” of that portion
of the conversation; however, he had not really understood it. Thus, all of the credible
evidence demonstrates that during this April 6, conversation, Sparks directed Tomaskevitch to
never send him any more copies of Board documents.
In closing argument, Respondent pointed out that the government does not allege that
Tomaskevitch was told never to “file” any other documents with the Board, but only that he
should never “serve” Sparks with the Board documents. Respondent further argues that under
Section 102.19 of the Board’s Rules and Regulations, a charging party’s failure to notify all
parties of the appeal shall not affect the validity of the appeal. Thus, Respondent appears to
argue that because Tomaskevitch was not required to send Sparks a copy of his appeal, Sparks
would not violate the Act if he told Tomaskevitch not to serve him with future documents.
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In closing argument, Counsel for the General Counsel asserts that the Board has a
long-standing policy that prohibits statements and/or threats by supervisors that have a
reasonable tendency to interfere with an employee’s Section 7 rights. Counsel for the General
Counsel further argues that Tomaskevitch was placed in a situation in which he was
questioned about his Section 7 rights. General Counsel maintains that an employee can
invoke the Board process and may do so without interference from an employer’s temper
tantrums or any other reactive behavior by management representatives.4
It is well-established that the filing of an unfair labor practice charge constitutes
protected activity. Federal Security, Inc., 336 NLRB 703, 707 (2001); Summitville Tiles, Inc.,
300 NLRB 64, 65 (1990). Additionally, an employer’s attempt to restrain an employee in the
exercise of his right to file charges is clearly unlawful. NLRB v. Scrivener, 405 U.S. 117, 92
S. Ct. 798 (1972); Nash v. Florida Industrial Commission, 389 U.S. 235, 238, 88 S. Ct. 362,
365 (1967).
It has long been held that an employer violates 8(a)(1) of the Act when the employer
interrogates an employee concerning the filing of charges with the Board. Quality
Engineered Products, 267 NLRB 593, fn. 3 (1983); Wilker Bros. Co., 236 NLRB 1371, 1385
(1978). The undisputed facts in this case reflect that Sparks spontaneously addressed
Tomaskevitch’s unfair labor practice charge during the April 6, 2006 meeting. While there is
no allegation that Sparks specifically questioned Tomaskevitch about why he sent Sparks a
copy of the appeal, Sparks’ statement nevertheless prompted Tomaskevitch’s explanation as
to why he had done so. I find merit to General Counsel’s argument. While not phrased
specifically as a question, I find that Sparks’ comment served not only to challenge the
propriety of Tomaskevitch’s actions, but also to disparage the Board’s appeal process.
In determining whether conduct violates Section 8(a)(1) of the Act, the Board does not
consider the individual’s subjective reaction to the conduct as determinative. The Board
looks to whether under all the circumstances, the conduct reasonably tends to restrain, coerce,
or interfere with employee Section 7 rights. Sunnyside Home Care Projects, 308 NLRB 346,
fn. 1 (1992). I also find it significant that Sparks’ admonition to Tomaskevitch concerning the
Board documents occurred during the same conversation in which Sparks threatened
Tomaskevitch with discipline if he were to again work without a doctor’s release. Whether
Sparks intended to couple the admonition with the threat of discharge and whether
Tomaskevitch felt threatened by Sparks’ remarks is of no consequence. “Employer conduct
which reasonably tends to interfere with an employee’s protected activity violates Section
8(a)(1), regardless of the employer’s motive and regardless of the conduct’s effect. Merit
Contracting, Inc., 333 NLRB 562, 563 (2001). In this case, the totality of the circumstances
supports a finding that Sparks’ comments to Tomaskevitch concerning his unfair labor
practice charge would reasonably tend to interfere with an employee’s Section 7 rights in

4 In support of his argument, Counsel for the General Counsel cites V & S ProGalv, Inc., 323 NLRB 801
(1997) where the Board found that an employer’s interrogation of employees regarding their
cooperation in the Board’s investigation of unfair labor practices interfered with the Board’s process.
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violation of 8(a)(1) of the Act.
The Board has long held that once a threat is uttered, it is difficult at a later date to
cure its coercive effect. International Harvester Co., 258 NLRB 1162, fn. 3 (1981). As
discussed above, however, it is undisputed that Sparks’ coercive statement was followed by
his conceding that if the Board required Tomaskevitch to send him a notice of appeal, then he
should do so. There is no dispute that under certain circumstances an employer may avert
liability for unlawful conduct by repudiating the conduct. To be an effective repudiation,
however, the repudiation must be “timely” and “unambiguous” as well as “specific in nature
to the coercive conduct” and “free from proscribed illegal conduct.” There must be adequate
publication of the repudiation to the employees involved, and there must be no proscribed
conduct on the employer’s part after the publication. Additionally, a repudiation or disavowal
of coercive conduct should give assurances to employees that in the future their employer will
not interfere with the exercise of their Section 7 rights. U.S. Services Industries, Inc., 324
NLRB 834, 838 (1997); Passavant Memorial Area Hospital, 237 NLRB 138, 139 (1978).
While there is no question that Sparks may have attempted to immediately repudiate
his coercive statement to Tomaskevitch, he gave no assurances that Respondent would not
interfere with Tomaskevitch’s exercise of his Section 7 rights in the future. See Safeway
Stores, Inc., 266 NLRB 1124, 1125 (1983). Accordingly, I find that Respondent ordered
Tomaskevitch not to serve Respondent with any more Board documents as alleged in
Paragraph 5(a) in the consolidated complaint and in doing so violated 8(a)(1) of the Act.
B. Whether Respondent Threatened Tomaskevitch by Creating the April 6, 2006 Note
As alleged in Paragraph 5 (b) of the consolidated complaint, the General Counsel
argues that in order to discourage his union and protected activities, Respondent threatened
Tomaskevitch by placing the written note in his personnel file stating that he would be
disciplined if he worked under a doctor’s note. There is no dispute that Sparks never told
Tomaskevitch that he had documented the conversation in writing or that he had placed the
document in Tomaskevitch’s personnel file. Sparks asserts that he did not do so because he
did not consider the note to be discipline. He maintains that it was simply documentation that
he had discussed the policy with Tomaskevitch. There is no dispute that Tomaskevitch might
never have known that the document existed if it had not been discovered in documents
provided to Tomaskevitch’s attorney in the course of unrelated civil litigation.
In order to determine whether Respondent has violated 8(a)(1) as alleged, there
appears to be two primary issues requiring consideration. At the outset, there is the issue of
whether Tomaskevitch could have been threatened when he was initially unaware of the
documentation in his file. Had his file not been produced in connection with an unrelated
matter, he might never have known of its existence. As to whether an undisclosed threat may
be violative, I note the Board’s recent decision in Corporate Interiors, Inc., 340 NLRB 732,
732-733 (2003). In this 2003 decision, the government alleged that an employer violated
Section 8(a)(1) of the Act when a supervisor threatened an employee during a conversation
with another supervisor. The employee, who was the target of the threat, was not present at
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the time of the supervisor’s statement. There was no evidence that the supervisor intended for
that employee or any other employee to hear the threat. Although there was no evidence that
the statement was meant to be heard by anyone other than a fellow supervisor, the Board
nevertheless found the statement violative of Section 8(a)(1) when it was inadvertently
overheard by another employee. The Board pointed out that regardless of the intent or motive
of the supervisor, the threat; which was overheard by another employee, had a tendency to
interfere with the free exercise of employee rights and was thus violative of 8(a)(1) of the Act.
Thus, it could be argued that if the placement of the note in Tomaskevitch’s personnel file
were deemed to be a threat, it would nevertheless be violative even if Tomaskevitch were
initially unaware of it.
The second issue for consideration, however, is whether the placement of the note in
Tomaskevitch’s file constituted a threat in violation of the Act. The note documents that
during Sparks’ conversation with Tomaskevitch, Tomaskevitch admitted that he had not been
able to get a release from his doctor to return to work on April 6 and that he could not work
the following day because he was scheduled to undergo a procedure in follow-up to his April
7 surgery. Sparks documented in the note that he told Tomaskevitch that in the future, he
should not work if he had a note stating that he could not work. Sparks further documented
that he told Tomaskevitch that failure to follow this policy would result in discipline.
Although Sparks’ action is alleged to be a threat and violative of 8(a)(1) of the Act, the
Board’s analysis for determining whether a specific action is violative of the Act is instructive
in this instance. In determining whether an employer has violated Section 8(a)(3) of the Act,
the Board requires General Counsel to show that an employee has engaged in protected
activity and that such activity is known to the employer. Additionally, General Counsel must
not only show employer animus, but also that the employer engaged in an adverse action that
has the effect of encouraging or discouraging the employee’s protected activity. Promedica
Health Systems, Inc., 343 NLRB No. 131, slip op. at 17 (2004). In this matter, however,
Respondent asserts that no violation has occurred because no discipline was issued to
Tomaskevitch. There is no evidence that Respondent had a progressive discipline system or
that such documentation constituted discipline.
Although Sparks includes in his note that he cautioned Tomaskevitch that discipline
could result in the future if he worked without a release from his doctor, his verbal statement
to Tomaskevitch is not alleged to be a threat or otherwise coercive. The actual written
memorialization of the conversation is the action that is alleged to be violative of the Act.
Counsel for the General Counsel presented employee William Caldwell to testify that in 2003
he had worked on the day following lasik eye surgery. Caldwell testified that although his
doctor had not released him to return to work until Monday, Manager Spradlin had asked him
to work on Saturday. While he normally worked as a truck driver, Spradlin asked him to
work with another employee; wheeling product rather than driving. Caldwell admitted that
Spradlin had not seen a copy of the doctor’s note prior to his working on the Saturday in
question. He also admitted that he had not spoken with Sparks or Sandfoss about his having
the lasik surgery. Additionally, there was no record evidence that either Sparks or Sandfoss
were aware of any other employees who had worked without medical releases from their
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physicians. I also note that while Tomaskevitch asserts that he previously told Spradlin that
he planned to work on April 6, Tomaskevitch acknowledges that these conversations occurred
prior to his receipt of the April 1, 2006 doctor’s note. There is no evidence that Spradlin,
Sparks, or Sandfoss authorized Tomaskevitch to work on April 6 despite his doctor’s note to
the contrary.
As discussed above, I have found that Sparks violated the Act by instructing
Tomaskevitch to never to send him copies of Board documents. I do not, however, find any
nexus between Sparks’ unlawful instruction and his documenting the conversation with
Tomaskevitch about his working without a release from the doctor. Inasmuch as
Tomaskevitch did not even know about the note in his file, there is no evidence that Sparks
communicated to Tomaskevitch any connection between the note and his unlawful
instructions. Accordingly, I do not find sufficient evidence to support the allegation that
Respondent unlawfully threatened Tomaskevitch by placing the written document in his
personnel file.
Conclusions of Law
1. Respondent Louis Trauth Dairy, LLC is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local 89, International Brotherhood of Teamsters is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by ordering an employee not to
serve Respondent with any more Board documents.
4. The foregoing unfair labor practice affects commerce within the meaning of
Section 2(2) and (7) of the Act.
5. Except as found here, Respondent otherwise is not shown to have engaged in
conduct violative of the Act as alleged in the consolidated complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:5

5 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.
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ORDER
The Respondent, Louis Trauth Dairy, LLC, Louisville, Kentucky, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Ordering employees not to serve Respondent with any more Board
documents.
(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
Louisville, Kentucky copies of the attached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region 9, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent 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 April 6, 2006.
(b) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., December 20, 2006.
Margaret G. Brakebusch
Administrative Law Judge

6 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.”
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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 coercively order our employees not to serve us with any more Board
documents.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
LOUIS TRAUTH DAIRY, LLC
(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.
John Weld Peck Federal Building, 550 Main Street, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
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THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (513) 684-3750.