Mid-States Express

National Labor Relations Board - Board Decisions

Feb 12, 2009

353 N.L.R.B. 864 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 91
864
Mid-States Express, Inc. and International Brother-
hood of Teamsters, Local Union No. 20 and
Freight Drivers, Dockworkers and Helpers Lo-
cal Union No. 24, a/w International Brotherhood
of Teamsters. Cases 8–CA–37168 and 8–CA–
37302
February 12, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On September 19, 2008, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mid-States Express, Inc.,

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Further, the Respondent argues that, during the hearing, the judge
improperly questioned the Respondent’s witnesses. We find that the
judge’s questioning was proper under Sec. 102.35(a)(11) of the Board’s
Rules and Regulations.
In view of the findings that the Respondent interrogated and im-
parted an impression of surveillance to employee Jason Ulch in viola-
tion of Sec. 8(a)(1), we find it unnecessary to pass on the judge’s find-
ings that the Respondent also unlawfully interrogated and imparted an
impression of surveillance to employee Steven Wilson, as such findings
are cumulative and would not affect the remedy.
In adopting the judge’s finding that the Respondent unlawfully dis-
charged employee David Goodsell, we do not rely on his discussion of
United States Department of Transportation regulations. We also ob-
serve with regard to each of the employee discharges at issue that there
are no exceptions to the judge’s finding that the General Counsel satis-
fied his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st 1981), cert. denied 455 U.S. 989 (1982).
Cleveland and Toledo, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Karen Neilsen, Esq., for the General Counsel.
Tim Marszalkowski, Regional Manager, for the Respondent.
Norm Lewallen, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. This case was
tried in Cleveland and Toledo, Ohio, respectively, on March
26–27 and April 21–23, 2008, following issuance of a consoli-
dated complaint by the Regional Director for Region 8 of the
National Labor Relations Board (the Board), alleging that Mid-
States Express, Inc. (the Respondent), had violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).1
Specifically, the complaint alleges that the Respondent,
through various managers and supervisors at its Toledo and
Cleveland (the Richfield facility), Ohio facilities engaged in
certain unlawful conduct that violated Section 8(a)(1), includ-
ing threatening to close its facilities and put employees out of
work if they voted for union representation, threatening to dis-
charge employees for their union activities, interrogating em-
ployees about their union activities, creating an impression of
surveillance of its employees’ union activities, soliciting and
promising to remedy their grievances, and promising improved
benefits, in order to dissuade them from engaging in union
activity; and calling the police on employees engaged in lawful
handbilling activity. The Respondent is also alleged to have
violated Section 8(a)(3) and (1) by unlawfully discharging at its
Richfield facility employees Shawn Confere, Justin Rea, and
David Goodsell, and at its Toledo facility employees Jason
Ulch (J. Ulch), Merle Ulch (M. Ulch), and Steven Wilson.2
All parties at the hearing were afforded a full and fair oppor-
tunity to be heard, to present oral and written evidence, to ex-
amine and cross-examine witnesses, and to argue orally on the
record.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and the Respondent, I make
the following3

1 All dates herein are in 2007, unless otherwise indicated. The
charge in Case 8–CA–37168 was filed by International Brotherhood of
Teamsters, Local No. 20 (Local 20) on May 7, and amended on June
28. The charge in Case 8–CA–37302 was filed by Freight Drivers,
Dockworkers and Helpers Local Union No. 24, a/w International
Brotherhood of Teamsters (Local 24) on July 13, and amended Sep-
tember 28, and October 31.
2 M. Ulch is J. Ulch’s father, and Wilson is M. Ulch’s brother-in-
law.
3 In her posttrial brief, counsel for the General Counsel, inter alia,
moves to correct the record in certain respects. Thus, she seeks to have
Respondent, Exhibits ((R. Exhs.) 8, 11, and 15 placed in a separate
“rejected” exhibit file to reflect that they were not accepted into evi-
dence. While a separate file containing proposed exhibits that have
been rejected is the more suitable approach to take when the record in a
particular case is completed, the absence of such a “rejected exhibit”
MID-STATE EXPRESS 865
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation, is engaged in the
receipt, distribution, and delivery of freight at facilities located
in various States,4 including facilities in Toledo and Richfield,
Ohio.5 In the course and conduct of its business operations, the
Respondent annually derives gross revenues in excess of
$50,000 from the transportation of freight from its Ohio facili-
ties to points and places located out the State of Ohio. The
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, and that Locals 20 and 24 are labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Factual Background
The Respondent is a family-owned business. Terry Hart-
mann serves as its president and chairman, and his son, Brad
Hartmann (B. Hartmann), as its chief operating officer.6 Tim
Marszalkowski has, since April 23, 2007, served as Respon-
dent’s regional manager, with responsibility over six facilities,
including the Toledo and Richfield facilities, as well as facili-
ties in Columbus, and Cincinnati, Ohio, Fort Wayne, Indiana,
and Bay City, Michigan. Prior to assuming his regional man-
ager position, Marszalkowski served as district manager at the
Richfield facility since 2005. Terry Hartman, Brad Hartmann,
and Marszalkowi are admitted supervisors and agents of the
Respondent within the meaning of Section 2(11) and (13) of
Act. Bryan Adkins was, at all times material herein, the night
or “outbound” supervisor at the Richfield facility, and also an
admitted statutory supervisor and agent of the Respondent. At
the Toledo facility, Mark Dotson served as account executive;
Chris Bateson, Chris Benson, Greg Gruic, and Nate Stamp as
dispatchers; Jerry Lach as service center or “district” manager;

will not necessarily cause confusion here, which I suspect is the basis
for this aspect of counsel for the General Counsel’s corrective motion,
since the rejection of each of these three exhibits at the hearing is
clearly identified as such in the appropriate transcript volume where
reference to the exhibit is made. See, e.g., Tr. vol. 2, p. 282; vol. 3, p.
437. Counsel for the General Counsel also moves to correct certain
spelling and other minor inaccuracies in the record. See General Coun-
sel’s brief (GC Br.) at p. 4–5 for proposed corrections. In the absence
of any opposition thereto, her motion to correct the record in this regard
is granted. Finally, at the conclusion of her case-in-chief, counsel for
the General Counsel moved to conform the pleadings to the proof to
allow, based on the record evidence, the finding of additional violations
not specifically alleged in the complaint. Tr. 863, 866. I granted coun-
sel for the General Counsel’s motion by advising that she reference in
her brief the additional misconduct not alleged in the complaint for
which she contends there is supporting record evidence.
4 Indiana, Illinois, Kansas, Kentucky, Michigan, Minnesota, Mis-
souri, Nebraska, Ohio, North Dakota, South Dakota, and Wisconsin.
5 Richfield is a suburb of Cleveland.
6 Other members of the Hartmann family involved in the business
include Bruce Hartmann as vice president, and Barbara Hartmann as
secretary.
and William Lee as third-shift re-ship manager,7 all admitted
supervisors and agents of the Respondent as defined by the Act.
The record reflects that in early 2007, several of Respon-
dent’s facilities experienced organizational drives by various
local unions seeking to represent employees at those facilities.
At Respondent’s Lasalle, Illinois facility, for example, Team-
sters Local 722 filed a petition for a representation election on
January 18, which led to an election being held on February 21,
and to its certification on March 1, as exclusive bargaining
representative for employees in that facility.8 Local 24 engaged
in similar efforts at the Richfield facility and, to this end, filed a
representation petition on March 1, 2007, seeking to represent
“all line haul drivers, P&D drivers, and dockworkers” at that
facility. (See GC Exh.-2.) The day before filing its petition,
Local 24, by letter dated February 27, notified Marszalkowski
that a majority of employees at the Richfield facility had asked
it to represent them, and requested he contact the Union to ne-
gotiate a bargaining agreement. (GC Exh.-3.) An election
among unit employees at the Richfield facility was thereafter
held on April 12, which the Union lost. Alleged discriminatee,
J. Ulch, formerly employed at the Toledo facility, testified,
without contradiction, that he, and presumably others, at the
Toledo facility became aware of the organizing activities at the
Respondent’s various facilities from former employees, and
from truckdrivers who came in and out of the Toledo facility to
and from the locations.
The complaint alleges that during the course of these ongo-
ing organizing campaigns, the Respondent, through Mar-
szalkowski and other supervisory or managerial personnel,
directed certain coercive and unlawful conduct towards em-
ployees at the Richfield and Toledo facilities in order to dis-
suade them from supporting the Unions’ organizational efforts.
A discussion of these allegations follows.
1. The Richfield facility
a. The alleged 8(a)(1) conduct
(1) Statements attributed to Marszalkowski
Paragraphs 6, 7, 9, and 10 of the complaint allege that some-
time in February, Marszalkowski threatened employees at the
Richfield facility with plant closure and discharge if they se-
lected Local 24 to represent them; promised them benefits to
discourage support for Local 24, and unlawfully interrogated an
employee about his union activities.
Shawn Confere was employed as a dockworker at the Rich-
field facility from September 11, 2006, until discharged, alleg-
edly for unlawful reasons, on March 2. At the time of his ter-
mination, Confere worked from 6 a.m.–3:30 p.m., and was
being supervised by Stamp and Marszalkowski. Confere iden-
tified himself as a Local 24 supporter, explaining that he signed
a union authorization card after discussing the matter with his
grandfather, and also spoke with other employees about the

7 Lach was terminated by the Respondent on March 21, and Lee quit
on November 2. Dotson replaced Lach as district or terminal manager
at the Toledo facility.
8 Similar organizing drives were taking place at Respondent’s facili-
ties in Decatur, Illinois, Grand Rapids, Michigan, and facilities in Co-
lumbus and Cincinnati, Ohio.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD866
Union. He testified that as a general rule, Marszalkowski,
along with Stamp, held weekly meetings with city drivers
around 8–8:30 a.m. every Tuesday or Wednesday in the Rich-
field facility breakroom. Items discussed at these meetings
included operational matters, e.g., how the equipment was
working, whether the trucks were running properly, how late
the drivers’ runs had been. Discussion also centered on the
Respondent’s failure to pay employee medical bill. Confere
recalls some employees being more outspoken than others on
the medical bill issue, and being quite upset over it.
Confere also recalled Marszalkowski, at some of these meet-
ings, discussing the organizing efforts at the Lasalle facility,
and telling employees at these meetings that employees at that
facility would receive a dollar raise if the Union did not get
voted in. Confere further testified that during their meetings in
February, Marszalkowski told them that if the Union got voted
in at the Richfield facility, “the Hartmanns” would close down
the facility. Marszalkowski went on to say that he did not
know if employees wanted to remain employed, but that he
didn’t want “the place to get shut down by some damn union.”
Confere recalled Marszalkowski commenting that the “grass
isn’t always greener on the other side,” and again telling em-
ployees at two other meetings he recalled attending in early to
mid-February, that “they would shut this facility down if the
Union come [sic] in here.” (Tr. 93.)
City driver Justin Rea worked at the Richfield facility from
July 2006 until terminated on March 14, allegedly for unlawful
reasons. He testified to being aware of Local 24’s organizing
drive in and around January, and to helping the Union in its
efforts by signing an authorization card and to soliciting some
6–7 other employees to do the same. He recalled having one
conversation with Marszalkowski in mid- to late February, in
the latter’s office during which he asked Marszalkowski how
the Union vote at the LaSalle facility was going. Mar-
szalkowski, he contends, denied knowing what was going on.
Like Confere, Rea testified that, occasionally, when not on
the road, he attended weekly meetings conducted by Mar-
szalkowski and, sometimes, Stamp, among drivers and dock-
workers. The meetings generally involved job-related issues,
such as problems drivers may be having with customers, or
anything that might be going that employees should know
about, which included health insurance problems employees
might be having. Rea, however, recalled these meetings being
held on Thursdays. Unlike Confere, Rea denied hearing Mar-
szalkowski make the union-related comments attributed to him
by Confere. He admitted, however, that there were times he
did not attend the meetings because he would already be out on
the road. Thus, it may very well be that the comments attrib-
uted by Confere to Marszalkowski about the facility closing
down if the Union came in, or promising employees certain
benefits, may very well have been made by Marszalkowski
during the meetings Rea failed to attend. Rea did recall hearing
rumors around the facility just prior to the election that if the
Union came in, the facility would be closed and employees
would be out of jobs. He did not, however, identify the source
of these rumors. (Tr. 218.)
Employee Curtis Harmon, a Richfield driver, was called as a
witness for the Respondent and testified that he attended “some
of” the weekly drivers meetings, but never heard “anyone in
management talk about the union, or not have a union at the
Richfield facility.” He only recalled hearing employees being
told that “you’re not allowed to say anything to sway one way
or the other.” (Tr. 869.) William Greenleaf, a 13-year driver,
also testified on the Respondent’s behalf about attending the
weekly employee meetings which he claims were generally
held on Thursdays, but sometimes on Tuesdays. He testified
that he was never absent during the period from January
through April, and that, at no time during these meetings, did
he hear management ever “talk about the Union at the Richfield
facility,” and that if anyone asked a union-related question, he
(Marszalkowski) would tell them he “couldn’t talk about it.”
(Tr. 887.)
I credit Confere’s testimony and find that at some weekly
meetings in mid-February held by Marszalkowski at the Rich-
field facility, Marszalkowski told employees about Local 20’s
organizing efforts at the LaSalle facility, and mentioned that
employees at that facility would be given raises if the Union
was not voted in, and added that the Richfield facility would be
closed if Local 24 were voted in. Marszalkowski, as noted,
never took the stand to deny Confere’s remarks. The only evi-
dence produced by the Respondent to counter Confere’s ac-
count were the purported assertions by Harmon and Greenleaf
that they never heard Marszalkowski make such comments
during meetings they attended. Harmon, however, apparently
did not attend all such meetings, for he testified that he attended
some meetings. Thus, it is quite likely that Harmon, like Rea,
may not have been present at the meetings during which Mar-
szalkowski made the remarks attributed to him by Confere.
Harmon’s testimony was, in any event, too general and
vague to be reliable. Thus, unlike Confere, who described the
purpose of, and what may have been discussed at, these meet-
ings, including the showing of antiunion videos, Harmon’s
testimony regarding these meetings was his apparent recollec-
tion that “the only thing that was said . . . was that you’re not
allowed to say anything to sway one way or the other.” He
offered no explanation as to who may have said this, or what, if
any other matters, may have been discussed. I doubt seriously
the Respondent would have convened employee meetings sim-
ply to make the statement Harmon claims was made at the
meetings he attended. Harmon’s testimony in this regard is,
therefore, rejected as not credible.
Greenleaf’s testimony is similarly unreliable. Although he
claims not to have been absent from work during the period in
question, and to have been present at drivers meetings that were
held at the facility, it is unclear if he attended each and every
weekly meeting conducted during that period. I note in this
regard that Rea and Harmon, both of whom, like Greenleaf,
were drivers at the Richfield facility, often missed these weekly
meetings, Rea attributing it to his being on the road when the
meetings were held. I am inclined to believe that Greenleaf,
also a driver, may arguably have had occasion to be on the road
and possibly missed some of the weekly meetings. Overall,
Greenleaf’s testimony was not very convincing and, from a
demeanor standpoint, was not particularly credible.
Confere also testified that sometime in mid-February, Mar-
szalkowski questioned him about his union sympathies. Ac-
MID-STATE EXPRESS 867
cording to Confere’s undisputed account, on that occasion, he
and Marszalkowski were talking in the latter’s office, the sub-
ject of which meeting was not made clear by Confere in his
recitation of these facts, when, “out of the blue,” Mar-
szalkowski asked him what he thought about the Union. Con-
fere replied that he had never really given it much thought.
Marszalkowski then asked Confere if he would vote for the
Union, but Confere replied he simply did not know. A few
minutes later, Marszalkowski again turned his attention to the
Union by asking Confere what employees thought was wrong
with the facility that would make them want to bring in a union.
Confere answered that he did not know. Towards the end of
this conversation, Confere asked if Marszalkowski was still
planning to attend Confere’s upcoming trial as a character wit-
ness on February 28, to which Marszalkowski replied, “[M]ost
certainly.”9 Confere apparently viewed Marszalkowski as
somewhat of a friend, describing how he had made plans to go
over to Marszalkowski’s house on February 24, to help him
install a new countertop. He contends, however, that following
this latter conversation with Marszalkowski, their relationship
turned cold, and that they never held any further conversations
in Marszalkowski’s office after that. Although present
throughout the hearing as the Respondent’s principal spokes-
person and representative, Marszalkowski did not take the wit-
ness stand to refute or deny the statements and comments at-
tributed to him by Confere.10 Accordingly, I credit Confere’s
above unchallenged testimony regarding his conversations with
Marszalkowski.
Discussion
The credited and undisputed evidence of record, as found
above, reveals that, on various occasions during employee
meetings at the Richfield facility, Marszalkowski informed
employees that the Respondent’s owners would close the facil-
ity if they voted to bring in a union, and that the closure could
result in a loss of jobs. The Board has long found that an em-
ployer’s threats of plant closure and loss of jobs in response to
employee efforts to unionize, like those made here by Mar-
szalkowski, naturally tend to have a coercive effect on em-
ployees’ exercise of their statutorily protected right to de-
cide freely whether to become represented. Valerie Manor,
Inc., 351 NLRB 1306, 1321 (2007); Evergreen America
Corp., 348 NLRB 178 (2006); Mid-South Drywall Co., 339
NLRB 480, 481 (2003); Mohawk Industries, 334 NLRB
1170, 1176 (2001); Massachusetts Coastal Seafoods, 293
NLRB 496, 498 (1989). Accordingly, I find, as alleged in
the complaint, that the Respondent, through Marszalkowski,
violated Section 8(a)(1) of the Act by threatening employees
with plant closure and loss of their jobs during the February
employee meetings held at the Richfield facility.

9 Confere’s court appearance related to an alleged violation of a pro-
tective order involving his girlfriend.
10 Marszalkowski was called by counsel for the General Counsel as
an adverse witness at the start of the hearing and gave testimony on the
Respondent’s operational structure and other related matters. He did
not, however, take the stand at any time thereafter to refute Confere’s
account, or any other statements attributed to him by other witnesses.
In addition to unlawfully threatening employees with plant
closure and loss of jobs, Marszalkowski also told employees at
the Richfield facility that LaSalle facility employees would
receive raises if they voted against union representation. Mar-
szalkowski’s remark in this regard, I am convinced, was in-
tended to persuade employees at the Richfield facility that an
alternative to the plant closure and loss of jobs, to wit, em-
ployee raises, might also be available to them if they too voted
against being represented by Local 24. Such a promise of
benefits aimed at discouraging employee support for a union is
unlawful and, as alleged in the complaint and found herein, a
violation of Section 8(a)(1) of the Act. Superior Emerald
Park Landfill, LLC, 340 NLRB 449, 459 (2003); Burlington
Times, Inc., 328 NLRB 750, 756 (1999).
As found above, in mid-February, Marszalkowski questioned
Confere on how he felt about the Union, and whether Confere
would vote for it in the upcoming Board election, conduct al-
leged in the complaint to be unlawful. The 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 Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). The Board has identified a number
of factors that are “useful indicia” in determining whether the
questioning of an employee constitutes an unlawful interroga-
tion.11 There are, however, no particular factors “to be me-
chanically applied in each case.” Westwood Health Care Cen-
ter, 330 NLRB 935 (2000); See also Benjamin Franklin Plumb-
ing, 352 NLRB 525, 532 (2008), and River Ranch Fresh Foods,
351 NLRB 115, 327–328 (2007), citing too Westwood, supra.
Here, Marszalkowski’s questioning of Confere on how he felt
about the Union, and how he intended to vote in the Board
election, as noted, occurred against a backdrop of unlawful
threats of plant closure, job loss, and promise of benefits that
had been directed by Marsalkowski at Confere and other em-
ployees during this same time period, and took place in Mar-
szalkowski’s office, which, given the above threats, could
hardly be viewed as a neutral or friendly environment.12 As
noted, it is unclear from Confere’s account, which is the only
version available as Marszalkowski chose not to testify, just
why Confere was meeting with Marszalkowski when the ques-
tioning took place. Thus, while Confere may have viewed
Marszalkowski as a friend, Confere was also a union supporter,
and his ambivalent response to Marszalkowski, when asked
how he intended to vote in the election, suggests that Confere,
despite his feeling of friendship towards Marszalkowski, may
not have felt comfortable making his true prounion intentions
known to him. In these circumstances, I find that Mar-

11 These include the background in which the questioning occurred,
e.g., any prior history of employer hostility and discrimination; the
nature of the information sought; the identity of the questioner; place
and method of interrogation; truthfulness of the reply. See, e.g., West-
wood Health Care Center, 330 NLRB 935, 939 (2000), citing too
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).
12 Indeed, as more fully discussed below, it was in Marszalkowski’s
office that employees were directed to watch antiunion videos, and
where employees were subjected to other coercive and unlawful con-
duct by B. Hartmann.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD868
szalkowski’s questioning of Confere was indeed coercive, and
constituted, as alleged in the complaint, an unlawful interroga-
tion in violation of Section 8(a)(1) of the Act.
(2) Statements by Adkins
Paragraph 8 of the complaint alleges that sometime in mid-
February, Adkins unlawfully created an impression among
employees that their union activities were being kept under
surveillance, and threatened them with unspecified reprisals
because of their union activities, and, in paragraph 11, that, on
or around March 1, he threatened employees that the facility
would be shut down if the union were voted in.
David Goodsell was a city driver at the Richfield facility
from 2005 until discharged on March 21. Goodsell testified,
credibly and without contradiction, to being a Local 24 sup-
porter and assisting Local 24 in its organizational efforts. He
explained, for example, that in late January or early February,
he went to Local 24’s union hall to obtain authorization cards,
signed a card himself, and gave one to employee Donald Thor-
sky to sign. He then handed some blank authorization cards to
Thorsky to distribute to other employees, and took some him-
self and solicited other employees to sign cards.
Goodsell testified that in mid-February, as he was taking a
break inside a trailer in the dock area of the facility, Adkins
entered the trailer and asked to speak with him. When Good-
sell asked what he wanted to discuss, Adkins mentioned that he
had overheard or been part of a conversation involving Mar-
szalkowski where mention was made of rumors going around
the facility that he (Goodsell), Thorsky, Confere, and Rea were
trying to get the Union in. Goodsell claims he simply looked at
Adkins and replied, “Well, you know how rumors float around
this place.” Adkins responded, “Okay,” and then cautioned
Goodsell to watch himself and to be careful. (Tr. 350.)
Goodsell also recalled having another conversation with Ad-
kins, this one towards the end of February, in the main office,
as he was looking over the outbound bills for the night loads.
According to Goodsell, Adkins appeared to be in a “foul mood”
at the time, so he went over and asked Adkins why he seemed
upset. Adkins, he contends, answered, “You know why I’m
upset.” When Goodsell asked if it had anything to do with the
letter Respondent had just received from the Union requesting
recognition, Adkins replied, “Yes.” Goodsell then remarked,
“Well, we had to do something because Mid-States wasn’t
doing anything for us,” to which Adkins replied, “Well, they’re
probably gonna close this place down if you guys keep this up.”
Adkins did not testify. Accordingly, Goodsell’s testimony as to
the comments Adkins made to him in mid- and late February is
credited and accepted as true.
Rea also testified to some union-related comments made to
him by Adkins. He recalls being in the main office one day and
using the computer to look up his route for deliveries he would
be making the following day. Adkins, he contends, came over
to him and asked what he was doing. When Rea explained and
asked why Adkins wanted to know, Adkins answered that
someone had purportedly been using the computer to look up
union activity, and that when “they” find out who it was, that
individual was “going to be in big trouble.”
Discussion
Regarding Adkins’ comment to Goodsell about hearing ru-
mors that Goodsell, along with Thorsky, Confere, and Rea were
trying to bring in the Union, such conduct is alleged to have
created an unlawful impression that Goodsell’s union activities,
and that of the other named individuals, were being kept under
surveillance. The test for determining whether an employer
has created an impression of surveillance is whether the
employee would reasonably assume from the statement that
their union activities had been placed under surveillance.
Flexsteel Industries, 311 NLRB 257 (1993). As explained
by the Board in Flexsteel, the idea behind finding “an im-
pression of surveillance” as a violation of Section 8(a)(1) of
the Act is that employees should be free to participate in
union organizing campaigns without fearing that members
of management are peering over their shoulders, taking note
of who is involved in union activities, and in what particular
ways.
Although admitting to being a union supporter and to dis-
tributing authorization cards to other employees, nothing in
Goodsell’s testimony, or elsewhere in the record, suggests that
he was open and notorious about his support for and activities
on behalf of Local 24. Thus, when told by Adkins about ru-
mors that he and others were trying to bring the Union in to the
Richfield facility, Goodsell could reasonably have believed that
Adkins may have learned of his involvement with Local 24,
and that his activities on Local 24’s behalf were being moni-
tored. Adkins’ remark could further have reasonably caused
Goodsell to refrain from engaging in such protected activity for
fear of retaliation. In these circumstances, I find that Adkins’
remark to Goodsell, about hearing “rumors” of his attempt to
bring the union in, unlawfully created the impression that
Goodsell’s activities, and that of other Local 24 supporters,
were being kept under surveillance, and violated Section
8(a)(1) of the Act, as alleged.
Adkins, as noted, also told Goodsell in late February that if
employees persisted in their efforts to bring the Union in, the
Respondent would probably close down the facility. Adkins, as
credibly explained by Goodsell, was angry that employees were
seeking Local 24’s representation, and made his comment to
Goodsell when the latter remarked that employees had to do
something because the Respondent was not doing anything for
them. As discussed above in connection with similar state-
ments made by Marszalkowski to Confere, a threat to close a
plant in response to employee union activity is coercive and
unlawful. Adkins’ threat of plant closure directed at Goodsell
in late February was therefore unlawful and a violation of Sec-
tion 8(a)(1) of the Act.
(3) Statements by B. Hartmann
Paragraph 12 of the complaint alleges that in or around late
March, B. Hartmann implicitly threatened employees with dis-
charge if the Union were voted in, solicited employee com-
plaints and grievances, and promised them increased benefits
and better terms and conditions of employment in order to in-
duce them into not supporting the Union.
MID-STATE EXPRESS 869
The specifics of this allegation center on comments purport-
edly made by B. Hartmann during an antiunion video employ-
ees were directed to watch about 1 month before the scheduled
April 12 election.13 Rial Finney, a line haul driver at the Rich-
field facility, testified that at around 9 a.m. on the day he was
shown the video, he had just returned from delivering a load
when he was instructed to go to Marszalkowski’s office, where
he found B. Hartmann, but not Marszalkowski, present. He had
never before met B. Hartmann, nor, for that matter, any of the
other Hartmanns. After introducing himself, B. Hartmann slid
a video cassette into a small television set and both sat and
watched the 15–20 minute video. The video, according to Fin-
ney, discussed how a union at an auto plant had gone on strike
to obtain a contract, and how employees had lost their jobs as a
result of the strike. B. Hartmann, he contends, remained quiet
during the showing, but spoke to him for about 5 minutes fol-
lowing the video.
B. Hartmann, he recalled, told him that what had happened
in the video at the auto plant would happen at the Richfield
facility if a union was voted in. B. Hartmann further remarked
that he did not know why anybody at the Richfield facility
would want a union, that unions are not all cracked up to what
they used to be. He then asked Finney why he or the other
employees wanted a union, to which Finney replied that em-
ployees needed new trailers as the ones they were using were
all worn out, and the Company was not making the repairs
needed to make them safe to operate. He further told B. Hart-
man that employees also needed the Union because their medi-
cal payments weren’t being paid by the Respondent. B. Hart-
mann informed Finney that some 48-feet trailers had been or-
dered, that these would have to be used first and that the Com-
pany would thereafter order 53-feet trailers. Regarding the
medical payments, B. Hartmann purportedly told him that the
Company was taking out a loan with which to cover the em-
ployees’ medical benefits. (Tr. 151–152.)
Finney also recalled being directed, on two subsequent occa-
sions, to view antiunion propaganda films, again in Mar-
szalkowski’s office. Unlike the first time, however, when
B. Hartmann remained in the room with him, Finney watched
the films with other employees present. Finney testified that
the next time he saw B. Hartmann was on the day before the
election when, he claims, Marsalkowski and B. Hartmann were
at the facility walking around and talking to different employ-
ees. Finney was in the process of loading his trailer when
B. Hartmann approached, shook his hand, and said he would
appreciate it if Finney did not vote for the Union. Finney sim-
ply answered, “Okay,” and continued loading his trailer. (Tr.
155.)
Goodsell, and another line haul driver, Gerry Joseph also tes-
tified to viewing videos similar to that shown to Finney. Good-

13 Antiunion videos were apparently shown to employees at Re-
spondent’s other facilities. Called as a witness by counsel for the Gen-
eral Counsel, Lach testified, credibly and without contradiction, to
being instructed by B. Hartmann sometime in February to show em-
ployees at the Toledo facility a video regarding unionism, and to send it
back to him, possibly for circulation to other facilities, because the
Respondent “was having problems with the Union throughout the
Company.” Tr. 630–631.
sell recalled viewing two videos, the first in mid-February in
the drivers’ room. He could not recall if another employee
watched it with him at the time, but recalls no one from man-
agement being present. The second video, he recalled, was
shown to him 1 week later in Marszalkowski’s office, with
B. Hartmann and other employees present. He testified that
B. Hartmann did not speak while the video containing an anti-
union message played, but that B. Hartmann did address him
and the other employees once the video was over. B. Hart-
mann, he recalled, mentioned that the Company was trying to
get the employees medical bills paid. (Tr. 347.)
Joseph similarly testified that, prior to the election, he and a
few other employees were directed to watch a 20-minute video,
which was more or less antiunion, in Marszalkowski’s office at
the Richfield facility while B. Hartmann was present. He re-
called that during the showing of the video, B. Hartmann did
not speak, but following the video, he recalled the latter telling
employees “he didn’t want a third party involved with the
Company.” Joseph had never before met B. Hartmann, nor did
he recall ever seeing him during his more then 10 years he had
been working at the Richfield facility. (Tr. 289–290.) B. Hart-
mann did not testify. Accordingly, the testimony provided by
Finney, Goodsell, and Joseph regarding B. Hartmann’s pres-
ence during their viewing of the videos, and as to what he may
have said to them is credited and accepted as true.
Discussion
As found above, after requiring Finney to view an antiunion
video in Marszalkowski’s office about the loss of a jobs follow-
ing a strike at an auto plant, B. Hartmann told Finney that the
same thing would happen at the Richfield facility if Local 24
were brought in. Despite being present in the courtroom during
Finney’s testimony, B. Hartmann, as noted, never took the wit-
ness stand to refute Finney’s account, or to offer some legiti-
mate explanation or reason for his plant closing and job loss
remark to Finney.14
Nothing in Finney’s description of B. Hartmann’s comment
about a strike at the Richfield facility leading to a loss of jobs,
similar, apparently, to what was depicted in the video he was
required to watch, reflects that there was any ambiguity in
B. Hartmann’s statement. Thus, B. Hartmann’s remark, as
credibly described by Finney, was presented to the latter not as
a prediction based on objective fact as to what might occur if
Local 24 were brought in, but rather as an inevitable event that
will occur if employees voted for union representation. The
Board has found similar comments regarding the inevitability
of a strike should a union prevail to be coercive and unlawful.
Smithfield Packing Co., 344 NLRB 1, 8 (2004); Gold Kist, Inc.,
341 NLRB 1040, 1041 (2004); Vasaturo Bros., Inc., 321 NLRB
328 (1996); Heartland of Lansing Nursing Home, 307 NLRB
152, 158 (1992). Here, B. Hartmann’s comment to Finney was

14 Finney displayed overt hostility to Marszalkowski during the lat-
ter’s cross-examination of Finney, leading me to admonish him for his
behavior on the witness stand. Nevertheless, I am crediting Finney’s
account notwithstanding his display of hostility because of the Respon-
dent’s deliberate failure to call B. Hartmann, who was present during
Finney’s testimony, to deny or refute Finney’s assertions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD870
similarly coercive and unlawful, and a violation of Section
8(a)(1) of the Act.
B. Hartmann, as noted, also questioned Finney during this
particular incident on why he and other employees wanted a
union. When Finney complained about the faulty trailers em-
ployees had been using, and how the employees medical bene-
fits were not being paid, B. Hartmann told Finney that new
trailers had been ordered and more were on the way, and that
the issue of the nonpayment of medical benefits would soon be
resolved because the Respondent was taking out a loan to cover
such expenses. B. Hartmann, on another occasion also told
Goodsell, following the latter’s mandated viewing of an anti-
union video, that the Respondent was trying to get the medical
expenses paid. The promises by B. Hartmann to Finney and
Goodsell, which I have found were made since B. Hartmann
was not called to refute them, are alleged to have been unlawful
attempts by B. Hartmann to dissuade Finney and Goodsell from
supporting Local 24. The allegation has merit.
B. Hartmann’s inquiry of Finney as to why he and other em-
ployees wanted a union was, in my view, an attempt by
B. Hartmann to ascertain what problems employees might be
having with the Respondent that would prompt them to turn to
a union for help in resolving them. There is no evidence to
indicate that the Respondent, or B. Hartmann specifically, had
ever before solicited employee grievances or complaints.
“When an employer, who has not previously had a practice of
soliciting employee grievances or complaints, suddenly em-
barks on such a course during an organizational campaign, the
Board may find that the employer is implicitly promising to
correct those inequities discovered as a result of the inquiries,
thereby leading employees to believe that the combined pro-
gram of inquiry and correction will make collective action un-
necessary.” See Enjo Architectural Millwork, 340 NLRB 1340,
1353 (2003), quoting from Valley Community Services, 314
NLRB 903, 904 (1994); also D&F Industries, 339 NLRB 618,
644 (2003).
Finney, as noted, told B. Hartmann, in response to the lat-
ter’s inquiry into why employees needed a union, of the prob-
lems he and others were having with trailers, and with getting
their medical benefits paid, at which point B. Hartmann imme-
diately assured him that both problems were in the process of
being resolved. Clearly, B. Hartmann’s answer was intended to
convince Finney that the problems which were driving him and
others to the Union were being taken care of the Respondent,
thus rendering the union unnecessary. This same message, as
noted, was conveyed to Goodsell and other employees, follow-
ing their viewing of the antiunion video, when B. Hartmann
mentioned that the Respondent was trying to get their medical
bills paid. In these circumstances, B. Hartmann’s solicitation
of grievances from Finney, and his subsequent statements to
Finney, Goodsell, and other employees as to how the Respon-
dent was remedying, and intended to remedy, their grievances,
was coercive, and violated Section 8(a)(1) of the Act, as al-
leged.
(4) Rea’s handbilling incident
Rea, as more fully discussed and found below, was termi-
nated on March 14, for his involvement with, and activities on
behalf of, Local 24. Following his unlawful termination, Rea
continued with his union activities and, on April 3, went to the
Richfield facility to hand out union literature to Respondent’s
drivers returning from their routes. It is unclear from his testi-
mony if this was the only instance of handbilling engaged in by
him after his firing. Rea testified that in conducting his hand-
billing activity that day, he positioned himself on the paved
road, off the Respondent’s property, between a fire hydrant and
the driveway entrance to the Richfield facility.15 At around 5
p.m., Supervisor Adkins approached Rea and asked what he
was doing. Rea told Adkins what he was doing, and Adkins
asked to see the flyers. Rea handed Adkins copies of three
union flyers he was distributing, after which Adkins told Rea
that Marszalkowski was not going to be happy with what Rea
was doing.
Soon thereafter, Marszalkowski appeared and, after he and
Rea exchanged greetings, Adkins handed Marszalkowski the
flyers. Marszalkowski and Adkins then walked away from Rea
without saying anything else. At one point, Rea noticed Mar-
szalkowski using his cell phone to make a call. Some 5 min-
utes later, the Richfield police arrived, asked Rea what he was
doing, and then asked to see the flyers Rea was distributing.
The police, according to Rea, told him they simply wanted to
make sure the material he was handing out was not “slanderous
to Mid-States Electric.” Adkins did not testify, and no mention
was made by Marszalkowski in his testimony regarding this
incident. On brief, however, the Respondent admits that Mar-
szalkowski called the police on Rea, but gave no explanation
for why he did so.16 (R. Br. 29.) Although not charged or ar-

15 GC Exh.-14 is a photo depicting the road where Rea claims he was
standing. The photo shows the Richfield facility on the left side, a fire
hydrant on the grassy area off the road, and the entrance to the Rich-
field facility a little further up in the photo. According to Rea, he stood
on the paved area between the fire hydrant and facility’s entrance.
16 The Respondent did elicit some testimony from employees
Harmon and Greenleaf which seemingly contradicts Rea’s claim that he
conducted his handbilling activity on public property. Thus, Harmon
testified he saw Rea “standing on the apron and on the grass of the
terminal where the drivers were coming in” handing out leaflets.
Greenleaf claimed to have seen Rea doing so “right at the driveway
where we pull into the yard.” Tr. 883, 892. Their testimony, which
was rather vague and lacked specificity, was, however, elicited through
some very leading questions posed to them by Respondent’s represen-
tative, rendering said testimony, like the testimony provided by them on
other matters, highly suspect and unreliable. Neither Harmon nor
Greenleaf, it should be noted, testified as to when their observations
purportedly occurred. Thus, assuming, arguendo, that Harmon and
Greenleaf in fact saw Rea handing out leaflets in the locations de-
scribed by them, it is unclear from their testimony if what they ob-
served occurred on April 3, when the police were called on Rea, or on
some other day. As noted, nothing in Rea’s testimony suggests that his
handbilling activity was limited to the April 3 date. Nor, in any event,
was any evidence produced by the Respondent to confirm that the areas
where Harmon and Greenleaf contend Rea was standing during his
handbilling activity was company property. In sum, I credit Rea over
Harmon and Greenleaf and find that he was indeed standing on public
property during his April 3, handbilling activity. In any event, the
Respondent, as previously noted, has not claimed that it called the
police on Rea for allegedly trespassing on its property.
MID-STATE EXPRESS 871
rested for his handbilling activity, Rea was nevertheless de-
tained by the police on some other unrelated matter.17
The Respondent’s sole defense to this allegation, as argued
in its brief, is that it could not have committed any unfair labor
practice when it called the police on Rea on April 3, because
the latter was no longer an employee at the time. (Tr. 29.) I
disagree.
It is well established that an employer may seek to have
police take action against pickets, or, as in this case, hand-
billers, where the employer is motivated by some reasonable
concern, such as public safety or interference with legally
protected interests. Nations Rent, Inc., 342 NLRB 179, 181
(2004). However, an employer violates Section 8(a)(1)
when it calls police to have nonemployee union organizers
removed from public property. Walgreen Co., 352 NLRB
1188, 1193 (2008); Corporate Interiors, Inc., 340 NLRB
732, 746 (2003). Here, the Respondent has not shown, nor
for that matter contended, that the police were called on Rea
because the latter was trespassing on its property during his
handbilling activity. In these circumstances, the Respon-
dent’s decision to call the police on Rea amounted to an
unlawful interference with Rea’s Section 7 right to handbill
on public property, and violated Section 8(a)(1) of the Act,
as alleged.
b. The 8(a)(3) conduct
(1) Confere’s termination
Confere, as noted, was terminated on March 2, allegedly for
having “two consecutive unexcused absences” in violation of
company policy.18 The events leading up to the termination
involved Confere’s previously mentioned court appearance
which was scheduled for February 28. Marsalkowski, as found
above, had, several days earlier, assured Confere that he would
appear as a character witness for Confere. On February 27, the
day before Confere’s trial date, Confere claims he went to Mar-
szalkowski’s office and asked if he was still showing up in
court the following day. He contends, however, that Mar-
salkowski did not respond and simply kept looking down at his
desk and never looked up at him. Confere then walked out of
Marszalkowski’s office. Confere testified that he had previ-
ously received permission from Marsalkowski to take the day
off to attend the court hearing, explaining that Marsalkowski

17 According to Rea, he was detained by the police based on a mis-
taken identity involving his cousin who lives next door to him and
whose social security number is somewhat similar to Rea’s social secu-
rity number. The matter was eventually cleared up.
18 Sec. 704 of the Respondent’s personnel policy manual, entitled
“ATTENDANCE AND PUNCTUALITY,” provides, inter alia, that
“Two (2) unexcused absences will result in termination. (The first
requires a Final Warning Letter.)” The policy defines an “unexcused”
absence as when “the employee fails to properly notify his supervisor
two hours in advance of his/her start time,” “when the supervisor does
not approve the absence and the employee nevertheless is absent,” or
“when an employee says that they will be late and fails to report to
work at any time that day.” (See GC Exh.-4.) Par. 3 of the policy,
however, assures employees that “[i]t is not [Respondent’s] intent to
unduly discipline employees for a reasonable “excused” absence.
had, in his office, a chalkboard which he observed contained a
notation showing Confere’s scheduled February 28 hearing.
Despite promising to do so, Marsalkowski did not appear at
Confere’s court hearing. Confere contends that at some point
in the afternoon on February 28, he called the facility and spoke
with Stamp, as Marsalkowski apparently was not in the office.
According to Confere, he informed Stamp that he was still in
court and, while he was almost done, he had no idea how much
longer he would be there. Stamp purportedly told him that
Marsalkowski was not in the office but he would let him know
about Confere’s call. Confere, it appears, spent the whole day
in court.
Confere did not report for work on March 1, having been di-
rected the day before, presumably by the court, to report to the
probation office that day. Confere claims he called the facility
on three different occasions on March 1, to report his where-
abouts. His first call purportedly occurred at 5:45 a.m. Con-
fere recalls speaking with Stamp, telling him he had to go to the
probation office, and did not know how long he might be there
or what he had to do.
Called as a witness by the Respondent, Stamp denied ever
receiving phone calls from Confere, including on February 28
or March 1. (Tr. 931.) Certain inconsistencies and ambiguities
in Stamp’s testimony, however, render it unreliable and not
particularly trustworthy. Stamp, for example, claimed he began
working for Respondent in April 2001, and purportedly left in
early March 2007, although he was somewhat vague and un-
sure as to his departure. Testimony by Curtis Harmon, one of
Respondent’s witnesses, that Stamp was supervising him in
April 2007, seemed to undermine Stamp’s claim of having left
the Respondent’s employ in March. Stamp also testified that
no member of management “ever gave OS&D (over, short &
damaged department) items to employees. This rather broad,
sweeping assertion by Stamp is somewhat hard to accept, since
Stamp never explained how he would have known what other
supervisors may or may not have done vis-à-vis employees and
OS&D products, in his absence, and testimony from other wit-
nesses makes clear that the distribution of OS&D products to
employees by supervisor was a common occurrence.
Stamp’s blanket denial of having spoken by phone to Con-
fere on either February 28 or March 1, also lacked the ring of
truth. Thus, the question put to Stamp by Respondent, to which
he answered, “No” without hesitation or equivocation, was
whether Confere had called him on either of the above dates.
Stamp’s ability, more than a year later, to aver with the degree
of certainty exhibited by him on the witness stand and without
giving it any thought, that he had never received any phone
calls from Confere, including on February 28 or March 1, was
not convincing, particularly given his inability to recall with
any degree of certainty when he terminated his employment
with the Respondent. Stamp’s testimony of not having re-
ceived any phone calls from Confere on February 28, and
March 1, is rejected as not credible. I find instead, as credibly
testified to by Confere, that the latter indeed called and spoke
with Stamp on February 1, to update him on the status of his
court appearance, and again on the morning of March 1, to
advise of his required meeting with the probation office.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD872
His second phone call on March 1, Confere explained, took
place at around 8 a.m. and was with Marsalkowski. He told
Marsalkowski during this phone call that he was still at the
probation office waiting to hear what was going on, and that he
had not yet met with his probation officer or been told what he
had to do. Marsalkowski, he contends, made no mention of
why he did not appear at his February 28 court date. The third
phone call, Confere contends, was made at 12:30 p.m. and he
again spoke with Marsalkowski. He informed the latter that he
was being required to watch a video with some other 30 indi-
viduals at the probation office, and had no idea how long it
would be. Marsalkowski purportedly replied, “[Y]ou do what-
ever you’ve got to do,” and slammed the phone down on Con-
fere. Confere described Marsalkowski as being “a little angry,
a little upset” during that brief conversation. He denied being
told by Marszalkowski during this latter phone conversation
that the facility was swamped with freight. He never told Mar-
salkowski whether or not he would make it in to work that day
because he had no idea how long he would have to remain at
the probation office. Confere contends that he eventually got
out of the probation office at around 2:45 p.m. His testimony
as to the substance of his two phone conversations he had with
Marszalkowski on March 1, was not denied or otherwise dis-
puted by Marszalkowski, leading me to credit Confere’s ver-
sion of the conversations.
Confere reported to work the following day, March 2, at 5:45
a.m. His starting time was 6 a.m. He testified he arrived a few
minutes early in order to give Stamp copies of his court and
probation papers, presumably to confirm his February 28 court
appearance and his March 1, attendance at the probation office.
Stamp, however, had not yet arrived, so Confere went to Mar-
szalkowski’s office, who was there, to hand him his documents.
Marsalkowski, however, simply walked out of his office with-
out saying a word, but returned a short while later accompanied
by driver, Bill Greenleaf. Confere recalled that on his return,
Marszalkowski put some papers on the desk and told him, in
any angry tone, that he was being terminated for “unexcused
absence.” (Tr. 108.) Marszalkowski asked Confere to sign a
termination notice, which was to be witnessed by Greenleaf,
and Confere did so without reading it, explaining that he was
too upset at the time about being fired for no reason to read
anything.19
Other than identifying the termination notice he issued to
Confere for two unexcused absences, Marsalkowski did not
testify as to the circumstances surrounding the discharge. His
failure and refusal to do so, despite being present at the hearing

19 The termination letter, received into evidence as GC Exh.-5, ap-
pears to have been signed by Marsalkowski, and contains Greenleaf’s
signature as a witness. It gives the following explanation for the termi-
nation:
You had a court appointment on Wed. 2/28/07. After your court date
you did not call the terminal to see if you were needed. It was end of
the month and we were swamped. That constitutes an unexcused ab-
sence. On Thursday 3/1/07 you called me and said you were at your
parole officers office. You needed to watch a movie with 30 others. I
told you we were swamped with freight. You said you would call. I
never received a call and you did not show up for work again. You
are terminated for 2 consecutive unexcused absences.
and being advised by me of his right to take the stand to refute
such testimony, supports an inference that Marszalkowski
chose not do so for fear that any such sworn testimony would
be detrimental to Respondent’s case. Confere’s undisputed
testimony regarding his discussions with Marsalkowski before
and during the discharge is, as noted, accepted as true and cred-
ited.
Discussion
The complaint, as noted, alleges, and counsel for the General
Counsel contends, that Confere was discharged for his activities
on behalf of, or for supporting, Local 24 in its organizing cam-
paign at the Richfield facility. The Respondent insists Confere
was lawfully discharged for having two unexcused absences in
violation of company policy. When, as here, the motivation for
an employer’s actions, here Confere’s discharge, is at issue, the
Board utilizes the test set out in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 395 (1983), to determine if the action
taken was lawful or unlawful under the Act. Hahner, Foreman
& Harness, Inc., 343 NLRB 1423, 1426 at fn. 8 (2004). Thus,
to establish that Confere’s discharge was unlawfully motivated,
counsel for the General Counsel, under Wright Line, must first
show that Confere was engaged in protected or union activity,
that the Respondent was aware of his activity, and that the ac-
tivity was a substantial or motivating reason for the Respon-
dent’s action. See Manno Electric, 321 NLRB 278, 283 at fn. 8
(1996).
Once the General Counsel makes this initial showing, the
burden of persuasion shifts to the Respondent to prove that it
would have taken the same action even if Confere had not en-
gaged in protected or union activity. But where it is shown that
the employer’s proffered reasons “are pretextual—that is, either
false or not, in fact, relied upon—the employer fails by defini-
tion to show that it would have taken the same action for those
reason, absent the protected conduct, and thus there is no need
to perform the second part of the Wright Line analysis.” Metro-
politan Transportation Services, 351 NLRB 657, 660 (2007),
and cases cited therein.
Confere’s support for and involvement with Local 24 is not
disputed. Thus, he testified, credibly and without contradiction,
to being a Local 24 supporter, and to having signed an authori-
zation card on its behalf and discussing the Union with other
Richfield facility employees. Credible evidence of record also
makes clear that the Respondent knew, or strongly suspected,
that Confere was assisting Local 24 in its organizing efforts, for
Goodsell, as noted, testified, without contradiction, to being
told by Adkins sometime in mid-February that Marszalkowski
suspected him, Confere, and others of trying to bring in the
Union. Adkins was not called to refute Goodsell’s testimony,
and Marszalkowski, who was present at the hearing, simply
chose not to take the stand to deny Goodsell’s assertion. Good-
sell’s testimony, which I have credited, thus establishes that the
Respondent was aware of Confere’s union activity before it
fired him on March 2.
The record is replete with credible and undisputed evidence
of Respondent’s, and in particular Marszalkowski’s, strong
MID-STATE EXPRESS 873
animosity towards unions and their supporters.20 There are, for
example, the numerous 8(a)(1) violations committed by the
Respondent, through its various supervisors and/or managers at
its Richfield and, as shown below, at the Toledo facilities, that
included coercive interrogation of employees regarding their
activities, creating an impression of surveillance of their activi-
ties, promising to improve their benefits, including paying their
medical bills and giving them raises, to induce them into not
supporting the Union, and threatening employees with the clo-
sure of facilities and loss of jobs if they were to vote the Union
in.
Marszalkowski’s own personal animosity towards unions
and their supporters was further revealed through uncontra-
dicted testimony provided by Lach regarding statements made
by Marszalkowski in conversations between the two. One such
conversation, Lach recalled, occurred in Lach’s office when
Marszalkowski entered smoking a cigarette. Lach asked him
not to smoke in his office and, after some exchange, the con-
versation turned to some prior attempts that had been made by
unions to organize the Respondent’s facilities. At one point,
Marszalkowski stated that he had been brought in to clean up
the union problem. When Lach asked how Marszalkowski had
managed to do that, the latter replied that he had solved the
problem by taking employees out to a “topless” bar, and buying
them drinks, boasting that it had only cost him about $1000.
During another conversation, Lach recalled Marszalkowski
mentioning how the Respondent had moved one of its terminals
from Ann Arbor, Michigan, to Toledo, Ohio, because of a un-
ion problem it allegedly was having at Ann Arbor, and, during
another conversation, Marszalkowski described how he had
fired a driver at the Richfield facility because the driver had
been to the union hall. This latter conversation occurred some-
time in 2005 or early 2006. As noted, Marszalkowski chose not
to take the witness stand to deny Lach’s assertions, leading me
to accept Lach’s testimony in this regard as true.
The above undisputed facts thus show that the Respondent
harbored strong antiunion animus, and that it had no qualms
about doing whatever it took to ensure that its facilities re-
mained nonunion, including using such coercive tactics as
threats, interrogations, promise of benefits, and, in the final
analysis and as shown below, the termination of union adher-
ents. Accordingly, I find that counsel for the General Counsel
has satisfied her initial Wright Line burden of proof, and that
the burden now rests with the Respondent to demonstrate that it
would have discharged Confere even if he had not taken part in
union activity.
The Respondent, as noted, contends, and Marszalkowski tes-
tified, that Confere was discharged allegedly for his two unex-
cused absences on the days he had to appear in court on a fam-
ily matter. The record does show that the Respondent main-
tains a written policy that two unexcused absences by an em-
ployee results in a termination, although it is not known to what
extent, if any, this policy has been adhered to in the past as no
evidence was produced to show that other employees have
previously been discharged pursuant to this policy. Whether or

20 The Respondent, on brief, concedes that anti-union sentiment was
prevalent among managers at the Richfield facility (R. Br. 2).
not the Respondent, in fact, adheres to its policy is, in any
event, of no real consequence here, for the evidence of record
convinces me that Confere did not violate the policy.
Thus, Confere testified, credibly and without contradiction,
that Marszalkowski was fully aware, as early as mid-February,
that he was scheduled to be absent on February 28, due to a
court appearance. Marszalkowski, in fact, recorded Confere’s
anticipated absence from work on February 28, on a chalkboard
in his office, a fact that again was neither denied or contra-
dicted by Marszalkowski. Indeed, Marszalkowski had assured
Confere that he would appear as a character witness on latter’s
behalf on the day in question. In sum, there is no question, and
I so find, that Confere’s absence from work on February 28,
was well-known to, and authorized in advance by, Mar-
szalkowski. His absence from work that day, therefore, was not
unexcused, as claimed in his letter of termination but rather, I
find, authorized.
Confere’s termination letter, as noted, states that he was told
by Marszalkowski during his last phone call on March 1, that
the facility had “a large amount of freight,” suggesting implic-
itly that Confere knew or should have known he was needed at
the facility that day. As found above, Confere credibly denied
being told any such thing by Marszalkowski. Marszalkowski’s
failure and/or refusal to take the stand to corroborate the state-
ment contained in the discharge letter purportedly made by him
to Confere renders the statement nothing more than hearsay
and, therefore, unreliable. I credit instead Confere’s denial that
Marszalkowski told him about the amount of work at the facil-
ity that day.
In sum, I find that Confere was authorized by Marszalkowski
to be absent from work on February 28, to attend his court hear-
ing, and that, early the following morning, March 1, Confere
called in and left word with Stamp that he had to visit his pro-
bation office that day. Consequently, the stated reason for his
discharge, having two consecutive unexcused absences, is pat-
ently false, as Confere, as found above, was authorized to be
out on the first of the 2 days in question, February 28.
Nor does his absence from work on March 1, fit the defini-
tion of “unexcused” as set forth in Respondent’s absenteeism
policy. Thus, as credibly testified by Confere, he did notify
Stamp early in the morning on March 1, about his required
attendance at the probation office that day, and also notified
Marszalkowski in two separate phone conversations later that
morning as to his whereabouts. In neither of his conversations
with Marszalkowski did the latter ever inform Confere that he
was required to report for work that day, or that he expected
Confere to come to work on leaving the probation office.
Rather, during the second phone conversation, Marszalkowski
simply instructed him to do what he had to do. Nothing in
Confere’s credited description of this conversation indicates
that Confere assured Marszalkowski he would report for work
once he was finished at the probation office. Confere credibly
explained that he could not have done so as he had no clue
when he would be finished and allowed to leave the probation
office.
In these circumstances, I am convinced that Confere had
good reason to believe that his absence from work on March 1,
was excused. Notably, Marszalkowski never testified that Con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD874
fere did not have permission to be at the probation office on
March 1. Accordingly, I find that Confere was indeed author-
ized to be absent from work on March 1. As Confere’s absence
from work on February 28 and March 1, was authorized, the
stated reason for his discharge, having two consecutive unex-
cused absences, is clearly false and pretextual.21 The Respon-
dent has, consequently, failed to rebut Counsel for the General
Counsel’s prima facie case. I therefore find, as alleged in the
complaint, that Confere’s discharge was unlawful and a viola-
tion of Section 8(a)(3) and (1) of the Act.
(2) Rea’s termination
Rea, as noted, was terminated on March 14, allegedly for
theft, to wit, stealing two bags of pretzels off the dock (GC
Exh.-6; Tr. 47). He testified to arriving for work that day at
around 5:45 a.m. to begin his 6 a.m. shift. As he got to the
timeclock, he noticed his timecard was not in its usual slot and
went over to Marszalkowski, who was in his office, to tell him
about his missing timecard. Marszalkowski, he contends, told
him he was aware of it and that he had to speak with Rea. Mar-
szalkowski then left the office and returned a few minutes later
with drivers Mike Mills and Curtis Harmon as witnesses.22 On
re-entering his office, Marszalkowski showed Rea his “vehicle
inspection” book, and told Rea that, when the latter returned to
the facility from making deliveries the day before, his truck was
missing a mud flap and that Rea had not written it up in his
book. Marszalkowski told Rea that, when he went out to the
truck to get his “vehicle inspection” book, he found an opened
bag of pretzels in Rea’s vehicle, and then showed Rea a dam-
aged box of pretzels Marszalkowski said were found on his
dock, along with a can of cake frosting also found in the truck.
Rea contends Marszalkowski next sat down at his desk and
informed him he was being terminated for theft. Mar-
szalkowski then typed up a termination letter and gave it to Rea
to sign, which he did.
Mills, as noted, did not testify. Harmon, on other hand, did,
and testified that Marszalkowski asked Rea if had taken “the
stuff” off the OS&D without permission, and Rea admitted he
had. Marszalkowski, Harmon contends, then read the contents
of the termination letter aloud to Rea. Rea, according to
Harmon, then asked to meet in private with Marszalkowski but
the latter refused, and simply told Rea he was terminated. (Tr.
875.) Notably, Greenleaf also claimed to have been present
when Rea was terminated, and testified to hearing Mar-
szalkowski confront Rea about “finding the stolen merchandise
from OS & D in the truck,” and hearing Rea admit having done
so. He contends Marszalkowski asked Rea if he had gotten

21 Even if Confere’s absence from work on March 1, was deemed to
be “unexcused,” the discharge would not have been justified since his
absence from work on February 28, was excused. As set forth in his
discharge letter, Confere purportedly was terminated for having “2
consecutive unexcused absences.” As his February 28, absence from
work was undisputedly approved he could not have been terminated for
having two consecutive unexcused absences.
22 GC Exh.-6, Rea’s termination letter, contains the signatures of
Harmon and Mills, confirming Rea’s account that they served as wit-
nesses to his discharge. Mills did not testify.
permission to take the merchandise, and Rea responded he had
not. (Tr. 894.)
Rea denied telling Marszalkowski that he had taken “the
stuff,” as testified to by Harmon and Greenleaf, and also dis-
puted Harmon’s claim that Marszalkowski refused his request
for a private meeting. Rather, according to Rea, he did meet
with Marszalkowski in private after Harmon and Mills left the
office. During this private meeting with Marszalkowski, which
occurred after he had been told he was terminated, Rea denied
stealing the pretzels and insisted he had gotten them from the
office, explaining that his supervisor, Stamp, had given him
permission about a week earlier to take the pretzels. Rea testi-
fied in this regard that a week before his termination, he re-
tuned to the facility early in the morning after making a deliv-
ery, noticed the pretzels on counter, and saw other employees,
including secretary Karen Larkman, eating pretzels. He asked
Stamp at the time if he could take some pretzels with him be-
fore leaving on his next run, and Stamp said it was OK.
According to Rea, when goods or food products are damaged
at the facility, they are turned over to the OS&D department.
He contends that, from time to time, supervisors and others in
the OS&D department would hand out or authorize employees
to take these goods for their own personal use. He recalled, for
example, seeing such items as small soup packages, e.g.,
Healthy Choice or Progresso brand, “Slim Jims,” “Tabasco”
sauce, given out. On other occasions, he claims to have been
authorized by various members of management to use certain
products from a customer’s damaged cartons, such as garbage
bags and paint. He recalls on one occasion being given a
“grease gun” for his personal use by Adkins.
As to the can of cake frosting, Rea explained to Mar-
szalkowski it was given to him by a customer during one of his
deliveries. The customer, he contends, was discarding the item
and Rea simply asked if he could have it. Marszalkowski told
Rea it didn’t matter, that he was still being terminated for theft.
(Tr. 226.) Rea was then escorted to his truck to retrieve his
personal belongings, turned in his fuel card, and left. Rea de-
nied ever admitting to stealing the bag of pretzels or the cake
frosting to Marszalkowski. Rea never received a copy of his
termination letter. Goodsell corroborated Rea’s testimony re-
garding the practice at the facility of allowing employees to
take damaged goods or food products for their own use. (Tr.
375–376.)
I credit Rea over Harmon and Greenleaf as to what occurred
and was said at his March 14 termination meeting. Harmon
and Greenleaf, as previously discussed, were not particularly
credible witnesses, and struck me as having embellished, if not
outright fabricated, their testimony to comport to the Respon-
dent’s version of events. Greenleaf’s claim of being present
during Rea’s termination is particularly difficult to accept, for
Rea’s termination letter shows, consistent with Rea’s testi-
mony, that Mills and Harmon, in addition of course, to Mar-
szalkowski, were the only witnesses present at this meeting.
Neither Mills nor Marszalkowski, as noted, testified, and
Harmon, the only witness who could have corroborated
Greenleaf’s purported presence at the discharge meeting, was
not asked to do so. I am convinced that Greenleaf was not
present during Rea’s termination meeting and that he simply
MID-STATE EXPRESS 875
lied about being there to curry favor with the Respondent. In
short, I find that Marszalkowski never asked Rea where or how
he obtained the bag of pretzels, and that, as credibly testified to
by Rea, he simply accused the latter of theft and informed him
he was being discharged for stealing the bag of pretzels.
Counsel for the General Counsel contends, and I agree, that
Rea was unlawfully discharged for his union activities, and that
the Respondent used the alleged theft as a pretext to mask its
unlawful conduct. Rea, as noted, was an active Local 24 sup-
porter, having signed an authorization card on its behalf, and
solicited other employees to do the same. Further, Adkins’
statement to Goodsell about having overheard, of been part of,
a conversation involving Marszalkowski, during which Rea’s
name was mentioned as one of several employees trying to
bring in the Union, makes clear that the Respondent either
knew or strongly suspected that Rea was a Local 24 supporter.
That the Respondent harbored strong animosity towards Local
24 and its supporters was, as discussed above in connection
with Confere’s discharge, clearly demonstrated by the coercive
conduct it directed at employees in order to dissuade them from
supporting Local 24, conduct which, as noted, included threats
of plant closure, job loss, interrogations, impression of surveil-
lance, and promise of benefits, along with the unlawful dis-
charge of Confere, another union supporter, for engaging in
activities on behalf of Local 24. On these facts, I find that
counsel for the General Counsel has made a prima facie show-
ing under Wright Line that Rea’s discharge was, like Confere’s
discharge, motivated by antiunion considerations.
The Respondent’s claim that Rea was lawfully discharged
for stealing a bag of pretzels does not withstand scrutiny. Ac-
cording to Rea’s credited and uncontradicted testimony, Mar-
szalkowski never bothered to ascertain the truth of Rea’s asser-
tion that he had been given permission by Stamp to take the
pretzels. Stamp, it should be noted, did testify that no “man-
agement employee” had ever given OS&D items to employees.
He did not, however, explain how he knew what other manag-
ers may or may not have given to employees in the past from
the OS&D department. As to the incident with Rea and the
pretzels, Stamp was never specifically asked what he knew
about this incident, or whether he, himself, had authorized Rea
to take the pretzels. Nor was Larkman, who could have refuted
or denied Rea’s claim that she too was eating pretzels when
Rea received permission from Stamp to take some, called to
testify, warranting an adverse inference that, had she been
called, her testimony would not have supported Respondent’s
claim. Accordingly, in the absence of any specific denial from
Stamp, I credit Rea and find that he had, in fact, been allowed
by Stamp to take the bag of pretzels Marszalkowski found in
his truck on March 14.
But even if Stamp had not authorized Rea to take the bags of
pretzels, and I believe Rea’s undisputed account that he did,
nothing in Marszalkowski’s sparse testimony suggests he knew
this when he fired Rea, for Rea’s credited account makes pat-
ently clear that Marszalkowski fired him practically on the spot
without bothering to ask Rea how, where, or when he had got-
ten the pretzels. Without questioning Rea, Marszalkowski
could not have known if Rea purchased the pretzels himself, or,
if Rea had gotten it from the OS&D department, as it turns out
was the case here, or who, if anyone, authorized him to do so.
An employer’s failure to fully and fairly investigate an em-
ployee’s alleged misconduct before disciplining or terminating
him, or to provide the employee an opportunity to rebut the
accusation, suggests the presence of discriminatory motiva-
tion. Aljoma Lumber, Inc., 345 NLRB 261, 285 (2005);
Pratt Towers, Inc., 338 NLRB 61, 97 (2002); Traction Whole-
sale Center, 328 NLRB 1058, 1072 (1999). Here, the Respon-
dent’s discharge of Rea, purportedly for “theft of a customer’s
property” (R. Br. 8), to wit, a bag of pretzels, was clearly pre-
textual as Rea’s credited and undisputed testimony unmistaka-
bly establishes that Rea was given the pretzels by Supervisor
Stamp. Marszalkowski’s accusation and discharge of Rea for
“stealing” the pretzels is, therefore, patently false. The Re-
spondent having failed to provide a legitimate, nondiscrimina-
tory reason for terminating Rea, I find that counsel for the Gen-
eral Counsel’s prima facie case remains intact, and that Rea’s
discharge on March 14, was due solely to his activities on be-
half of Local 24. Accordingly, I find, as alleged in the com-
plaint, that Rea’s discharge violated Section 8(a)(3) and (1) of
the Act.
(3) Goodsell’s termination
Goodsell, as testified to by Marszalkowski, was terminated
on March 21, allegedly for “falsifying reports” and “damaging
company property.” (Tr. 47.) His termination notice, received
into evidence as General Counsel’s Exhibit-7, states his dis-
charge was for “Falsification of reports, misrepresentation of
reports, failure to follow DOT [Department of Transportation]
requirements, destruction of company property.”
Regarding his discharge, Goodsell testified that he reported
for work on March 21, and went to the drivers’ room, presuma-
bly where drivers congregate, and, while there, noticed on the
board used to record problems with tractors and trailers, that the
truck he regularly drove had been written up as containing
some damage. According to Goodsell, the truck in question
was also regularly used by another employee, Steven King.
While unsure who had written the damage report on the board,
Goodsell believes King may have done so. Goodsell drove the
truck on March 20, and, prior to that, last used the truck on
March 14, at which time, he contends, the truck had no damage.
Goodsell recalled that after leaving the drivers’ room, he
went out and began hooking up a trailer to his truck to prepare
it for loading, when Marszalkowski approached him and asked
to see the damage on the truck, which consisted of a broken
splash guard or quarter fender over the left rear tire. Mar-
szalkowski then reviewed the truck’s vehicle inspection book
and, on not finding an entry of the damage in the book, asked
Goodsell about it. Goodsell replied that he kept a duplicate
book inside the terminal with his own belongings, at which
point Marszalkowski walked away. Goodsell, as it turned out,
had not entered the damage in his own duplicate book either,
explaining that he had run out of entry pages in the duplicate
book and, consequently, had also failed to record the damage in
his duplicate book. (Tr. 355.)
Goodsell then pulled the trailer into the dock and began load-
ing it. Marszalkowski returned a few minutes later and told
Goodsell he wanted to speak with him in the office, and also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD876
asked to see Goodsell’s own inspection book containing the
write-up on the truck. Once inside the office, Goodsell noticed
employees Eric Poe and Mark DeBaer were also present. Mar-
szalkowski then told Goodsell he was being terminated for “not
filling out an inspection report.” The entire meeting, Goodsell
contends, lasted less than a minute after which he turned and
left to retrieve his personal belongings. Marszalkowski never
questioned him about the damage to the truck, nor did he read,
or give Goodsell a copy of, the termination letter at that time.
After retrieving his personal belongings, Goodsell returned to
Marszalkowski’s office, shook the latter’s hand, and told him
there were “no hard feelings,” explaining that he didn’t harbor
any resentment towards Marszalkowski for discharging him,
and admitting that he had made a mistake in not filling out the
truck’s vehicle inspection report. Goodsell, however, denied
damaging the truck. (Tr. 357–358, 364.)
Marszalkowski testified he first learned of the damaged
quarter fender on the truck from King. According to Mar-
szalkowski, King, who did not testify, noticed the damage on
the truck while doing a pretrip inspection of the vehicle on
March 20, reviewed the vehicle inspection report to see if the
damage had been entered and, on not finding any such entry,
reported the matter to him. Marszalkowski’s understanding as
to sequence of events leading to the discovery of the damage is
that, on March 20, King was apparently waiting for Goodsell to
return from his road trip, and that, on Goodsell’s arrival at the
facility, and after the latter had backed the truck into the dock,
King went out to do his pretrip inspection and discovered the
damage. There was, according to Marszalkowski, only about a
15-minute gap between Goodsell’s arrival and King’s discovery
of the damage on the truck and subsequent report to Mar-
szalkowski. Marsalkowski was unsure when the damage to the
truck occurred, but was of the view it occurred sometime dur-
ing the 10–12 hours Goodsell was in possession of the truck,
admitting, however, that he simply did not know.
Later that same day, Adkins called Goodsell and informed
him he could appeal his termination by writing a letter to upper
management. When Goodsell asked what he should put in the
letter, Adkins suggested that the only way he could get his job
back was for Goodsell to “kiss their ass and tell them what they
want to hear.” After speaking with Adkins, Goodsell prepared
an appeal letter, returned to the facility, and handed it to Ad-
kins, who, in turn, called Marszalkowski. Marszalkowski in-
formed Adkins that Goodsell would first have to sign his termi-
nation letter before his appeal could be considered. Goodsell
was then given his termination letter for the first time which he
signed. Goodsell then left the facility and, later that evening,
received a call from Adkins who told him his appeal had been
denied.
Goodsell, as noted, denied damaging the truck. Goodsell re-
called that sometime after his termination, he had a conversa-
tion Joseph in which the latter told him that, the night before
Goodsell was fired, he, Joseph, had driven the truck in question
and had seen the damage on truck. In other words, Joseph,
according to Goodsell, had noticed the damage on the truck on
the evening before Goodsell drove it, and the night before King
first noticed it.
Joseph corroborated Goodsell’s above testimony. Joseph
testified that he drove the truck on March 19, and, at the time,
saw that a piece of the quarter fender was broken off. He ex-
plained that the damage was obvious because the truck was
fairly new making the damage more obvious. Joseph, however,
contends that on examining the damage, he concluded it had
not occurred recently because the break did not appear clean as
would be noticeable from a recent break, but rather was dirty
and did not seem fresh. Joseph chose not to write it up in the
vehicle inspection report because, given his conclusion that the
breakage occurred some time ago, he assumed some other
driver must have already written it up. He further explained
that writing up this particular type of damage in the vehicle
inspection report is not a requirement but more of an option,
noting that many of the Respondent’s other trucks have also
had quarter fenders break off or become damaged without be-
ing written up. (Tr. 295.)
Joseph confirmed having a conversation with Goodsell the
day after the latter’s termination. He testified he did not feel
Goodsell’s termination was justified because he had noticed the
damage on the truck’s quarter fender before Goodsell drove it
on March 20. As to Goodsell’s failure to record the damage in
the vehicle inspection report, Joseph pointed out that failing to
fill out such reports was not uncommon among drivers, a claim
corroborated by Rea who testified, without contradiction, to not
having filled out his vehicle inspection report during a 4-month
period from September 2006 to mid-January 2007, and to
knowing of others who likewise did not do so, without conse-
quence.23 He explained that, oftentimes, inspection books
would be missing from the trucks, notably when the book was
all filled in and new books were not readily available.24 In
Joseph’s opinion, the Respondent did not strictly enforce the
requirement that vehicle inspection reports be filled out, and, to
his knowledge, no one has ever been discharged for not doing
so. He testified that, following Goodsell’s termination, the
practice regarding vehicle inspection reports was changed, so
that, instead of just maintaining one book in the vehicle to be
used for night- and day-shift drivers to write their reports, now
night-shift drivers would maintain their own separate book, and
day-shift drivers would have their own. Joseph also pointed out
that, in addition to the vehicle inspection reports, drivers used a
log book to record their hours, and that, while a log book is
generally kept with the vehicle, a separate log was also main-
tained in the drivers’ room. Oftentimes, he contended, he, as
well as other drivers, would make their vehicle inspection re-
port entries in the drivers’ room log book. He was never disci-

23 He explained that he began filling out the vehicle inspection re-
ports after mid-January on becoming involved with the Union because
he did not want to give the Respondent an excuse to take action against
him for his union activity by claiming he was not filling out the report.
(Tr. 257.) Rea further claimed that another employee, Kevin Jewel,
told him in December 2006 that he too was not filling out his vehicle
inspection reports.
24 The vehicle inspection books apparently contain about a 30-day
supply of receipts. Thus, once an entry is made in the book, a copy of
the entry slip is torn out and turned in at the end of the workday, while
the book presumably remains with the vehicle.
MID-STATE EXPRESS 877
plined for doing so, nor, to his knowledge, was any other
driver.
The complaint alleges that Goodsell’s termination was moti-
vated by antiunion considerations and, thus, unlawful. Good-
sell, as noted, was a Local 24 supporter. Thus, he signed an
authorization card for Local 24, and distributed cards to other
employees to sign. Goodsell’s credited and undisputed account
of how Adkins told him the Respondent believed he, along with
Rea and Confere were responsible for bringing in the Union,
supports a finding that the Respondent knew Goodsell sup-
ported, and was active on behalf of, Local 24. Evidence of
Respondent’s antiunion animus was fully discussed in connec-
tion with the analysis of Confere’s and Rea’s termination and
will not be repeated here. On these facts, I find that counsel for
the General Counsel has met her initial Wright Line burden of
showing that Goodsell’s termination was discriminatorily moti-
vated by antiunion reasons.
The Respondent’s claim, that Goodsell was lawfully termi-
nated for damaging the quarter fender on one of its trucks, and
for falsifying a report, lacks credible evidentiary support and
amounts to nothing more than a pretext. Thus, it produced no
evidence to show that Goodsell was responsible for causing the
damage in question. Marszalkowski, who made the decision,
did not have personal knowledge of how the truck was dam-
aged or who might have done so. His hearsay testimony re-
flects only that employee King, who did not testify, reported
the damage to him. Marszalkowski, however, never claimed to
have been told by King that the latter actually witnessed Good-
sell damage the truck. Rather, Marszalkowski simply assumed
that Goodsell had done so because Goodsell had driven the
truck just prior to King’s alleged discovery of the damage.
Indeed, Marszalkowski’s description of what King told him, to
wit, that because Goodsell had driven the truck earlier that day,
he “must have been the person that damaged the truck,” makes
clear that King did not know for certain, and also simply as-
sumed, that Goodsell was responsible for the damage. (Tr. 51.)
Goodsell, as noted, denied damaging the truck, and Joseph’s
testimony, which went unchallenged, that he noticed the dam-
aged quarter fender on the vehicle in question a day before
Goodsell last drove it on March 20, supports Goodsell’s denial,
and suggests that someone other than Goodsell may very well
have caused the damage. Marszalkowski made no attempt to
question other employees who may have driven the truck be-
fore March 20, or anyone else for that matter, before abruptly
terminating Goodsell, without explanation or affording him an
opportunity to defend against the charge. Such an inquiry,
which presumably would have included questioning Joseph
since the latter was also employed as a driver, would, at a
minimum, have raised a doubt in Marszalkowski’s mind as to
Goodsell’s culpability for the damaged quarter fender. Mar-
szalkowski’s rush to judgment regarding Goodsell’s alleged
responsibility for the truck’s damage, without so much as a
cursory inquiry into how the damage occurred or who might
have caused it, and based on nothing more than an unsupported
assumption, convinces me that the damage to the truck had
nothing to do with Goodsell’s discharge, and that Mar-
szalkowski, as he did with Confere and Rea, simply used this as
one of various excuses to rid himself of another Local 24 ad-
herent.
Goodsell’s alleged falsification of the vehicle inspection re-
port is another of the pretextual reasons used by Marszalkowski
to justify Goodsell’s discharge. No evidence, however, was
produced by the Respondent to show that any such falsification
of a report by Goodsell occurred. While Goodsell, as noted,
admittedly failed to record the damaged quarter fender in the
vehicle inspection report and in his duplicate book, his conduct
in this regard was more one of omission or neglect, and not of
intentionally falsifying the vehicle inspection report by includ-
ing something therein that he knew or had reason to believe not
to be true. Goodsell’s failure to record the damage in the vehi-
cle’s inspection book or report, however, does not appear to be
dischargeable offense for, as Joseph credibly pointed out, this
was not uncommon among employees and, to his knowledge,
no one has ever disciplined or discharged for failing to do so.
No evidence, documentary or otherwise, was produced by the
Respondent to contradict Joseph’s claim, or to show that it has,
in the past, discharged other employees for failing, like Good-
sell, to record an entry in the vehicle inspection report. Nor did
it explain why, having ignored or implicitly condoned similar
infractions by other employees in the past, it now chose to ter-
minate Goodsell, in part, for this alleged infraction. This unex-
plained disparity in treatment supports a finding that Goodsell’s
failure to record the damage in the vehicle inspection report, as
well as the Respondent’s unsubstantiated claim that he falsified
a report, are nothing more than pretexts designed to mask the
true reason for his discharge, Goodsell’s union activity.
Finally, Goodsell’s termination letter cites “failing to follow
DOT requirements,” presumably stemming from his failure to
record the damage in the vehicle inspection report, as an addi-
tional reason for his discharge. Notably, Marszalkowski, in his
testimony, mentioned only that Goodsell “was terminated for
falsifying reports and damaged Company property,” but did not
mention his alleged failure to follow DOT requirements, as a
reason. This too, however, is nothing more than a pretext.
According to Marszalkowski, DOT Regulation 396.11 re-
quires that “any damage to a vehicle “must be reported” and,
under company policy, the failure to do so is a “termination”
offense.25 Review of the regulation in question, however, does
not fully support Marszalkowski’s assertion, for the regulation
does not appear to require the reporting of any damage found
on a vehicle, but rather that which would “affect the safety of

25 A copy of the Federal regulation in question, 49 CFR § 396.11,
was not produced at the hearing. I take judicial notice of 49 CFR
§ 396.11, which requires a driver of a motor vehicle subject to this
regulation to “prepare a report in writing at the completion of each
day’s work” which should cover at least the following parts and acces-
sories of the vehicle: Service brakes including trailer brake connec-
tions; parking (hand) brake; steering mechanism; lighting devices and
reflectors; tires; horn; windshield wipers; rear vision mirrors; coupling
devices; wheels and rims; emergency equipment. The regulation fur-
ther provides that the report “shall identify the vehicle and list any
defect or deficiency discovered by or reported to the driver which
would affect the safety of operation of the vehicle or result in its me-
chanical breakdown. If no defect or deficiency is discovered by or
reported to the driver, the report shall so indicate.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD878
operation of the vehicle or result in its mechanical break-
down.” The regulation does not list a “quarter fender,” of-
ten referred to also as a “splash guard,” as one of the items
that must be reported on a daily basis, nor is it clear that a
cracked or broken quarter fender is the type of damage re-
ferred to in the regulation that would affect the safety opera-
tion of the vehicle itself or lead to a mechanical breakdown.
Respondent’s own director of safety and security/risk manage-
ment, Harold Ferenczi, called presumably, in part, to bolster
Marszalkowski’s assertion, did not do so. Rather, he testified,
contrary to Marszalkowski, that a broken quarter fender is not
covered under Federal DOT regulations, but did proffer that
this is something that might be covered under a State DOT
regulation.26 Marszalkowski’s claim, therefore, that Goodsell’s
failure to record the broken quarter fender in his vehicle inspec-
tion report violated DOT regulation 396.11 is simply not sup-
ported by a plain reading of the rule in question, and, moreover,
is contradicted by Respondent’s own safety director, Ferenczi.
Thus, like the other reasons cited for his discharge, Good-
sell’s failure to record the damaged quarter fender in the vehi-
cle inspection report amounts to nothing more than a pretext
designed to cover up the true reason for his Goodsell’s termina-
tion, to wit, his union activity. Accordingly, I find that the
Respondent has failed to rebut counsel for the General Coun-
sel’s prima facie showing that Goodsell was terminated for his
union activity, and that Goodsell’s discharge was, conse-
quently, unlawful and a violation of Section 8(a)(3) and (1) of
the Act. .
2. The Toledo facility
a. The alleged 8(a)(1) conduct
Paragraphs 13(a) and (b) of the complaint alleges that on or
about March 20, admitted Toledo Facility Supervisor Lee
unlawfully interrogated employees about their union sympa-
thies or activities, and created the impression that employee
union activity was being kept under surveillance. Alleged dis-
criminatees J. Ulch and Wilson provided testimony regarding
these allegations, and other conduct that, while not specifically
alleged in the complaint, were raised and addressed at the hear-
ing.
J. Ulch worked as a second shift dockworker at the Toledo
facility from January 2005 until terminated on March 21, alleg-
edly for “unsafe forklift operation.” (Tr. 61; GC Exh.-8.) He
first began discussing the need for a union with other employ-
ees in September 2006, explaining that the discussion was
prompted by employee complaints that their medical bills were
not being paid, and that they were being asked to drive faulty
trucks and trailers. He claims that on one occasion in Septem-
ber 2006, as he and employee Jason Peck were openly discuss-
ing the union near the dispatch office, Supervisor Gruic cau-
tioned them that if Dotson were to hear them discussing the
union, they would be fired like some other employees who
were terminated a few years earlier by Marszalkowski for simi-

26 Ferenczi testified that such a provision can be found in Ohio’s
DOT regulations, but not in the Indiana’s DOT regulations. No docu-
mentary evidence, such as a copy of the Ohio DOT regulation, or a
citation to where the State regulation can be found, was produced.
lar conduct. (Tr. 448.) J. Ulch also testified to another incident
that occurred around Labor Day 2006, in former Toledo Dis-
trict Manager Lach’s office. He recalled being in Lach’s office
to turn in a doctor’s note justifying his 2-day absence from
work.
J. Ulch contends that once in Lach’s office, Lach phoned Joe
Baker, head of operations at the LaSalle facility to clarify the
matter. Baker apparently had received an e-mail from Gruic
stating that J. Ulch had been seen at a football game on the 2
days he was off work. During that phone conversation, J. Ulch
informed Baker that he had not been at a football game, and
had turned in a doctor’s note to Lach justifying his absences.
Baker seemed to accept the explanation, but then began ques-
tioning J. Ulch about ongoing union activities, including what
he knew about the “Vote Union 20” comment that had been
found written on freight. J. Ulch denied responsibility for the
writings, but did admit he and other employees were discussing
the union. Baker told J. Ulch that he did not want to hear any
more talk about union activities or about the Union. J. Ulch
contends he then stopped talking about the Union, but resumed
his union discussions with employees in early 2007 when Local
20 began its organizing drive at the Toledo facility. (Tr. 452–
453.)
On Saturday, March 17, J. Ulch attended a Local 20 meeting
and signed a Local 20 authorization card that day. J. Ulch testi-
fied, without contradiction, that when he reported for work
around 1:30 p.m., Monday, March 19, OS&D supervisor, Tim
Ulrich,27 approached him at the timeclock and asked how the
Union was going. J. Ulch replied it was going fine. Ulrich
then asked J. Ulch to help him find some freight in a trailer and
the latter agreed. Once inside the trailer, Ulrich again asked
how the Union was going, and when J. Ulch repeated things
were fine, Ulrich asked how many people had shown up, pre-
sumably referring to the Saturday union meeting. J. Ulch re-
plied that some 5–10 persons had attended. Ulrich then asked
how many dockworkers had attended, and J. Ulch identified
himself, his father M. Ulch, and Wilson. Ulrich further asked
J. Ulch if he was going to try and get the other dockworkers to
support the Union, and J. Ulch answered yes. J. Ulch named
some of the employees he was going to talk to about the Union,
including one Paul Whitman, to which Ulrich replied, “[G]ood
luck with Paul Whitman.” Ulrich also asked if any of the
truckdrivers had joined the Union. It is unclear from his testi-
mony if J. Ulch responded to this latter question. (Tr. 462–
463.) Ulrich did not testify. Accordingly, J. Ulch’s uncon-
tested account of his conversation with Ulrich is credited.
J. Ulch also testified that, at the end of his shift on Monday,
March 19, as he was about to clock out, Supervisor Lee came
up and asked him how the union drive was going, and whether
he had enough people to vote the Union in. J. Ulch replied that
he believed he had. Lee then told J. Ulch that Dotson and
Gruic appeared to have overheard him (J. Ulch) talking to

27 J Ulch’s description and characterization of Ulrich as OS&D su-
pervisor was not challenged or denied by the Respondent. Accord-
ingly, I find Ulrich was, at all times relevant herein, a statutory supervi-
sor as defined by Sec. 2(11) of the Act.
MID-STATE EXPRESS 879
truckdrivers, dockworkers, and other former employees about
the Union, and cautioned J. Ulch to be careful. (Tr. 467.)
The following day, March 20, J. Ulch was also questioned
about his union activities by Supervisor Bateson. He testified,
without contradiction, that as he was clocking in to begin work
that day, Bateson, like Lee and Ulrich the day before, asked
him how the union campaign was going, and how many people
were involved. J. Ulch replied he was not sure, but that it num-
bered somewhere between 5–15. Bateson then asked if the
Union was promising them anything, to which J. Ulch replied
that no promises were being made. Bateson continued probing,
asking if the Union was promising raises, and J. Ulch again
replied it was not, and that the Union only agreed to try and
help employees with their medical bills. Bateson then told
J. Ulch to let him know if the Union offers them more money
because he really did not want to be a supervisor and preferred
being back on the dock. (Tr. 468.)
Wilson also worked as a dockworker at the Toledo facility
from July 2005 until discharged on March 21, allegedly for
being a “substandard employee.” (See GC Exh.-10.) He testi-
fied that around August 2006, he took part in discussions with
other employees about getting a union to represent them to help
employees address issues relating to their medical bills and
their hourly wage rate. Wilson claims that some 2 months later,
around Thanksgiving time 2006, he spoke with Lee in the dis-
patch office about the unpaid medical bills he was receiving,
told him that other employees were having similar problems
with their bills, and commented to Lee that something had to be
done, explaining to Lee that he wanted the facility to become
unionized. Lee, according to Wilson, complained that he too
was having problems with his medical bills, and that others had
already complained about their bills not being paid. Wilson
claims that he then personally spoke to fellow employees about
getting Local 20 to represent them. (Tr. 542.) The record re-
flects that Wilson signed an authorization card on Local 20’s
behalf on March 17, just days before being discharged. (GC
Exh.-19.)
Wilson testified to having a conversation with Lee in the
Toledo facility lunchroom, but could not recall if it occurred on
March 18, 19, or 20, but was sure it was on 1 of those days.
Lee, he recalled, asked him how the March 17, union meeting
had gone. When Wilson answered it had gone fine, Lee asked
if many people had attended. Lee told him not too many had
attended, but that, hopefully, there will be many more at the
next meeting. (Tr. 553.)
Lee, who, as noted, voluntarily left the Respondent’s employ
in November, was called to testify by counsel for the General
Counsel. Lee’s testimony, for the most part, corroborated
J. Ulch’s above account and, moreover, provided some insight
into the nature, as well as Respondent’s awareness, of the union
activity at the facility. Lee testified that, prior to March 21,
there was much talk going on among employees at the Toledo
facility and at other facilities about the Union, and about the
organizational activity going on at the LaSalle facility. He
recalled first hearing about the organizing activity at the La-
Salle facility from Richfield facility driver, Rial Finney. Fin-
ney, he recalled, told him when the organizing activity at La-
Salle was just commencing, that employees at that facility had
petitioned for a Board election because they were fed up with
the situation involving the nonpayment of medical bills and
other matters occurring at the Company. Lee testified, without
contradiction, that the next day, he told Dotson about his con-
versation with Finney.
Lee recalled having three more brief conversations with Fin-
ney. The second such conversation occurred the following
evening. Finney purportedly told him that, on his return to the
Richfield facility, he was stopped by Marszalkowski at the
front gate and taken to the office. During the third conversation
with Finney, Lee contends he told the latter how he was told by
Gruic and others that the Respondent had promised to, within
90 days, give employees up to $4 raises, and pay all their medi-
cal bills. Gruic, Lee recalled, told him he had been told of this
by Marszalkowski at a meeting in the breakroom. The fourth
and last discussion he purportedly had with Finney occurred
several weeks later during which he recalled telling Finney that
the promise of wage increases and payment of medical bills
within 90 days had also been made to employees at the Re-
spondent’s Columbus and Cincinnati, Ohio facilities. Lee
claims that on learning about the promises being made to em-
ployees, he spoke with one Ward, the Cincinnati facility man-
ager, who confirmed that such a meeting took place with Mar-
szalkowski during which the latter promised that all medical
bills would be paid, and up to $4 raises for employees within 90
days. (Tr. 766–768.)
As to the Toledo facility, Lee claimed that, in late February,
he saw the words “Local 20” and “Union Yes” scrawled in the
breakroom bathroom wall, and was fully aware, as of February,
that J. Ulch, M. Ulch, and Wilson were personally involved in
union activities. (Tr. 751.) In this regard, Lee testified that, at
one point, an unidentified driver came to him and said these
three individuals needed to stop discussing the Union. Lee did
not say whether this individual was simply another employee or
a member of management, or whether the union conversations
purportedly engaged in by J. Ulch, M. Ulch, and Wilson, and
presumably overheard by this unidentified individual, occurred
away from or at the Toledo facility. Lee explained that em-
ployees in the past had been terminated for discussing union
matters, and that, consequently, employees should avoid engag-
ing any such discussions. (Tr. 751–752.)
Lee testified that he spoke with J. Ulch soon after receiving
this message from the unidentified driver. He recalled telling
J. Ulch how drivers had alerted him to the fact that the dock
employees were talking more than any of the other drivers
about the Union, and then cautioned him to watch what he said
because “people have been known to be terminated . . . for
being involved with the union if they are talking too much
about it.” (Tr. 754.) J. Ulch, he contends, mentioned to him
that employees had contacted a union business agent and they
were in the process of arranging a meeting for employees. Lee
recalled having two additional conversations with J. Ulch, the
first, consistent with the latter’s testimony, took place right
after the union meeting referenced by J. Ulch. Lee testified that
as J. Ulch was about to clock out for the day, he asked J. Ulch
how the meeting had gone, and if they had been able to con-
vince other employees to attend the meeting. The next conver-
sation, Lee contends, occurred right before J. Ulch was termi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD880
nated, around March 10 or so. He recalls telling J. Ulch, and
also Wilson who approached them as they were chatting, that
the union at the LaSalle facility had won the Board election.
(Tr. 760.) As to Wilson’s claim that Lee also questioned him
on how the March 17, union meeting had gone, Lee was never
asked to confirm or deny this particular allegation. I credit
Wilson and find that Lee, as he did with J. Ulch, questioned
Wilson about the union meeting, and whether it was well-
attended by employees.
Discussion
Complaint paragraph 13 is directed at Lee’s questioning of
J. Ulch and Wilson on how the union meeting had gone and
how much employee support the Union had. The evidence, as
discussed above, makes clear that the questioning indeed oc-
curred as testified to by J. Ulch and Wilson. Thus, there is no
evidence that the relationship between Lee on the one hand, and
J. Ulch and Wilson on the other, was anything other than a
working one. Neither J. Ulch or Wilson, for example, de-
scribed Lee as a friend, and nothing in Lee’s testimony suggests
otherwise. The questioning of J. Ulch and Wilson, as noted,
occurred in the workplace, Lee’s having taken place by the
timeclock as he was leaving work, and Wilson’s in the lunch-
room. In neither case did Lee explain to J. Ulch or Wilson how
he knew they had attended the union meeting, and why he
needed to know how the meeting had gone or how much sup-
port the Union already enjoyed. Nor is there any indication in
their respective testimony regarding these incidents to suggest
that Lee assured J. Ulch or Wilson that he was questioning
them in his personal capacity and not as a supervisor acting on
Respondent’s behalf and with its approval. There is likewise
no evidence to indicate that J. Ulch and Wilson were, at that
point in time, open and overt in their support of Local 20.28 In
these circumstances, I find Lee’s questioning of J. Ulch and
Wilson, without explanation or justification, about their atten-
dance at the union meeting and as to the amount of support
Local 20 enjoyed, constituted an unlawful interrogation, and,
moreover, unlawfully created the impression that the Respon-
dent was keeping its employees activities under surveillance.
By engaging in such conduct, the Respondent, through Lee,
violated Section 8(a)(1) of the Act, as alleged.29

28 Although J. Ulch had been open about his support for the Union in
September 2006, he ceased his prounion activity after being directed by
Baker back then to do so.
29 The Respondent, on brief, contends that it should not be found li-
able for Lee’s misconduct given the latter’s admission at the hearing
that he talked to employees about their union activity on his own and
that management had not instructed him to do so. Tr. 822. Lee did, in
fact, further testify, in response to questioning by me, to being told
“several times” not to ask employees about their union activities, al-
though he never identified who gave him such instructions. Tr. 852.
Lee’s above admissions, however, the reliability of which I find highly
suspect, do not absolve the Respondent of liability for his coercive
comments. Lee, as noted, was not the only supervisor to engage in
coercive conduct towards employees. As found above, at the Richfield
facility, two of Respondent’s highest management officials, Mar-
szalkowski and B. Hartmann, as well as supervisor Adkins, engaged in
conduct as, if not more, coercive than that engaged in by Lee at the
Toledo facility that included, inter alia, threatening employees with
Counsel for the General Counsel also contends that similar
questioning of J. Ulch by Ulrich as he was about to begin his
shift on March 19, and by Bateson on March 20, on how the
union organizing was going, and how many employees had
shown up at the union meeting a few days earlier, was also
unlawful. While not specifically alleged as independent viola-
tions in the complaint, this conduct was raised and litigated at
the hearing. The Respondent offered no evidence to contradict
J. Ulch’s claim that they occurred, nor did it bother to question
J. Ulch regarding these matters. Counsel for the General Coun-
sel, as noted, moved, without objection, to conform her plead-
ings to proof, which motion was granted. I find the allegations
are properly before me for consideration, and, moreover, that
they are not time barred under Section 10(b) of the Act,30 for
the alleged misconduct by Ulrich and Bateson are, in my view,
closely related to the allegations set forth in complaint para-
graphs 13(a) and (b). Thus, both Ulrich’s and Bateson’s inter-
rogations and related comments were directed at J. Ulch, who
was the recipient of the virtually identical coercive comment
directed at him by Lee. Ulrich’s questioning of J. Ulch, as
noted, occurred on the same day as Lee’s unlawful interroga-
tion of J. Ulch, while Bateson’s questioning of J. Ulch occurred
the following day. Both sets of allegations, to wit, that set forth
in complaint paragraphs 13(a) and (b) and those raised at the
hearing involving Ulrich and Bateson, involve the same legal
theory, e.g., unlawful use of coercive interrogations and creat-
ing an impression of surveillance in order to undermine em-

plant closure, loss of jobs, and discharge for engaging in union activity.
Indeed, like Lee, Marszalkowski, as noted, unlawfully questioned Con-
fere about his views on the Union and as to how he intended to vote.
Clearly, if Lee was instructed not to talk to employees about their union
activities, said instructions either were not conveyed, or intended to
apply, to other managers or supervisors like Marszalkowski, B. Hart-
mann, and Adkins, or they were simply ignored with the Respondent’s
tacit approval. While I doubt, given the similar unlawful conduct en-
gaged in by Lee’s superiors Marszalkowski and B. Hartmann, and by
supervisor Adkins, that Lee was instructed not to talk to employees
about their union activity, I am convinced that, even if he did receive
any such instruction, it came with the proverbial “wink and a nod,” for
Lee apparently ignored the instruction without repercussion. In these
circumstances, I find the Respondent is indeed liable for Lee’s coercive
comments to J. Ulch and Wilson.
30 Sec. 10(b) of the Act provides in pertinent part that “no complaint
shall issue based upon any unfair labor practice occurring more than 6
months prior to the filing of the charge with the Board and the service
of a copy thereof upon the person against whom such charge is made.”
The Board, however, permits unfair labor practice allegations that are
otherwise time barred by the 6-month limitations period in Sec. 10(b)
of the Act to be litigated if they are legally and factually closely re-
lated” to allegations of a prior timely filed charge. Carney Hospital,
350 NLRB 627 (2007), citing Redd-I, Inc., 290 NLRB 1115 (1998).
Under Redd-I, as clarified in Carney Hospital, supra, the Board consid-
ers the following three criteria to determine if an otherwise untimely
allegation is sufficiently related to a timely allegation so as to allow it
to be added to the complaint: (1) whether the timely and the untimely
allegations involve the same legal theory; (2) whether the otherwise
untimely allegations arise from the same factual situation or sequence
of events as the allegations in the timely charge; and (3) “may look” at
whether a respondent would raise the same or similar defenses to both
the timely and untimely allegations. Earthgrains Co., 351 NLRB 733
(2007).
MID-STATE EXPRESS 881
ployee support for the Union. Further, the Respondent’s de-
fense to these additional allegations would be no different than
what would be required of it to defend against the 8(a)(1) alle-
gation involving Lee. Accordingly, I find the allegations in-
volving Ulrich and Bateson are not “time barred,” and con-
clude, based on J. Ulch’s undisputed and credited testimony,
that Ulrich and Bateson, like Lee, unlawfully interrogated
J. Ulch about his attendance at the union meeting, and created
the impression his union activities were being kept under sur-
veillance. In so doing, the Respondent, through Ulrich and
Bateson, further violated Section 8(a)(1) of the Act.
b. The 8(a)(3) conduct
(1) Jason Ulch’s termination
J. Ulch, as noted, was terminated on March 21, either for his
union activities, as claimed by counsel for the General Counsel,
or justifiably for operating a forklift in an unsafe manner, as
argued by the Respondent. The facts surrounding his discharge
are as follows.
J. Ulch arrived for work at 1:30 p.m. on March 21, a rainy
day, he recalled, and was approached by Ulrich who told him
Marszalkowski was coming to the facility later that day to
“probably” get rid of Lach. A few hours later, around 5 p.m.,
Ulrich notified him that Lach had indeed been fired, and that, if
anything else happens at the dock, to call him (Ulrich) at home
and let him know. Ulrich’s work shift ended around 5 p.m.
J. Ulch continued the work he was doing of “breaking down”
two trailers, which essentially involved removing freight from
the trailers using a forklift to sort and store it in various areas of
the terminal for shipment to other terminals. J. Ulch testified
that during the loading process, he was having some difficulty
getting his forklift to function properly due to some problem
with the dock plate which the forklift had to travel over. He
recalled that on two separate occasions, this particular problem
caused his forklift to spin its tires, but that he was able to ma-
neuver the forklift adequately and continue with the loading.
As he was doing so, J. Ulch recalled seeing Marszalkowski and
Dotson in the dock area hiding behind freight and observing
what was going on, conduct which he found somewhat unusual
as he had not seen either of them engaging in such behavior in
the past.
Soon thereafter, he responded to a call from Gruic over the
intercom asking for a dockworker to come to the front office.
Once at the office, Gruic handed him a bill and told him that a
pickup truck sitting out by the ramp needed to have a skid
loaded onto it. With bill in hand, J. Ulch left the office, went to
his forklift and proceeded to load the skid on the truck. As he
was doing so, he noticed Marszalkowski standing alongside
another dockworker, Jeff Whitaker, watching him. After load-
ing the truck, J. Ulch had difficulty making it up the ramp to the
dock on the forklift because the rain had made the ramp wet
and slippery. J. Ulch then asked Whitaker to get him a skid to
add additional weight to the forklift and give him the traction
needed to go up the ramp. After getting up the ramp, J. Ulch
returned to the trailer he had been breaking down before being
called by Gruic.
Soon after returning to the trailer, Marszalkowski ap-
proached and asked what he was doing. J. Ulch explained what
he was doing, and continued working. J. Ulch claims that at
one point in his unloading process, as he was exiting the trailer
to come down the ramp, his forklift got hung up on a damaged
portion of the dock plate which bridges the path between the
dock and the trailers. According to J. Ulch, most of the dock
plates at the facility are damaged and unsafe, and curled up at
their sides. J. Ulch simply backed the forklift back into the
trailer and drove the forklift out using the center portion of the
dock plate. At one point, J. Ulch contends, Marszalkowski
came to him and asked what was taking so long with a particu-
lar trailer. J. Ulch jokingly replied that Marszalkowski could
help him by preparing the bills for him. Marszalkowski simply
looked at him and told J. Ulch to get off the forklift and come
to the office, that he was being terminated immediately for
“spinning your tires.”
Once inside the office, and with Dotson also present, Mar-
szalkowski asked J. Ulch how his name was spelled. The latter
replied that he had been working at the facility long enough and
that Marszalkowski already had his file before him and should
know how to spell his name. Marszalkowski replied by calling
J. Ulch an “asshole.” Marsalkowski then asked Dotson to go
out and make copies of the termination papers. When Dotson
left to make copies, J. Ulch asked Marszalkowski why “you
guys got to be backstabbers and two-faced” since he, J. Ulch,
had done so much for the Company. Marszalkowski, at that
point, jumped out of his seat and yelled to J. Ulch, “Get the
fuck out of here now. Get the fuck out of my office.” (Tr.
484.) J. Ulch recalls at one point asking Marszalkowski for a
copy of his termination paper, and the latter telling J. Ulch that
he “wasn’t fucking getting one.”31 Dotson had apparently re-
turned by then, at which time Marszalkowski instructed Dotson
to escort J. Ulch off the premises. J. Ulch asked Dotson if he
could make a quick phone call before he left, but he was told
no. On his way out, Wilson came up to him and asked what
had happened, that he had heard yelling, and J. Ulch told him
he had just been fired and that Wilson would be next. J. Ulch
then asked Wilson to phone his brother, Kenny Ulch, and have
him come and pick him up. As he waited outside for his
brother to arrive, J. Ulch asked Dotson why he was being fired,
and Dotson replied that he had no control over it, that it had
come from “someone higher above.”
Marszalkowski provided some testimony regarding J. Ulch’s
discharge. He admits being present at the Toledo facility that
day to terminate Lach and to observe the operation. At the time
of his arrival around 6 p.m., there were four dockworkers pre-
sent—J. Ulch, M. Ulch, Wilson, and another individual not
identified by Marszalkowski, but presumably Whitaker. Mar-
szalkowski testified that he decided to discharge J. Ulch after
purportedly witnessing J. Ulch operating the forklift in an un-
safe manner. As described by Marszalkowski, J. Ulch “drove
the tow motor” of the forklift “over the top, actually almost
airborne as fast as it could go, flipped the lever in reverse”
causing the tires “to spin completely backwards.” As he did so,
J. Ulch, Marszalkowski contends, “smiled and thought it was
awfully funny.” According to Marszalkowski, J. Ulch was

31 J. Ulch’s termination notice was, as noted, received into evidence
as GC Exh.-8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD882
putting on a show for him. Asked if J. Ulch was discharged for
reasons other than his “unsafe forklift operation,” Mar-
szalkowski answered, somewhat ambiguously, that J. Ulch’s
termination letter should also have included “damaging the
equipment,” e.g., the forklift, as a reason for the termination.
Asked if J. Ulch was then also terminated for damaging equip-
ment, Marszalkowski evasively answered, “He should have
been, but that wasn’t put in there at the time.” (Tr. 62.)
Discussion
Regarding J. Ulch’s discharge, counsel for the General
Counsel has, I find, made a strong prima facie showing that
J. Ulch’s termination was motivated by antiunion considera-
tions. J. Ulch, as previously discussed, was an active Local 20
supporter prior to his discharge, having attended union meet-
ings, signed an authorization card, and solicited signed cards
from other employees on Local 20’s behalf. The record also
makes clear that the Respondent was fully aware of his union
sympathies when it fired him on March 21. Thus, Supervisors
Ulrich, Lee, and Bateson all questioned J. Ulch about his atten-
dance at the union meeting on March 17, making clear that they
either knew or had reason to suspect, that J. Ulch was involved
with the Union. To the extent they may have doubts about his
attendance at the union meeting before questioning him, those
doubts clearly dissipated when J. Ulch, on further questioning
by these supervisors, disclosed how many individuals had at-
tended the meeting or the level of support enjoyed by the Un-
ion. Further, J. Ulch credibly testified to being told by Lee that
Dotson and Gruic had overheard him, J. Ulch, talking to em-
ployees about the Union. Although present in the courtroom,
Dotson was not called to refute or deny the claim made by Lee
to J. Ulch that he, Dotson, had overheard J. Ulch discussing the
Union with other employees, and thus must have known of
J. Ulch’s union involvement and sympathies. As already dis-
cussed above in connection with the discharges of Confere,
Rea, and Goodson, there is substantial record evidence of the
Respondent’s strong antiunion animus. On these facts, I find
that counsel for the General Counsel has met her initial Wright
Line burden of proving that J. Ulch’s discharge was motivated
by antiunion reasons.
The Respondent contends that J. Ulch was lawfully termi-
nated for operating a forklift in an unsafe manner, notably for
causing the tires to spin which, it points out, J. Ulch readily
admitted doing.32 While J. Ulch did admit that the tires on his
forklift spun on the day in question as he was loading freight,
he credibly explained that the spinning of the tires was inadver-
tently caused by the wet and slippery ramp and the damaged
dock plates. No evidence was produced to dispute J. Ulch’s
description of the weather conditions that day or the poor con-
dition of the dock plates.

32 The Respondent, on brief, cites to its “Employee Conduct and
Work Rules” which define “Safety Violations” as including, inter alia,
“Failure or refusal to follow safety policies, standard safety practices,
or safety instructions from management,” and “actions that might en-
danger yourself, another person, or company property or equipment.”
See R. Exh.-19. R. Exh.-19 provides that engaging in such behavior
may subject an employee to “disciplinary action within our work envi-
ronment, up to and including suspension/termination.”
The question that needs answering is whether this inadver-
tent spinning of the tires constitutes an unsafe operation of the
forklift, such as to render J. Ulch’s conduct a “safety violation”
under Respondent’s rules. The Respondent, on brief, readily
admits no evidence was produced by either party on the defini-
tion of, or what constitutes, a “safe/unsafe forklift operation.”
(R. Br. 11.) It contends, however, that the burden of proof on
this question rests with counsel for the General Counsel. The
Respondent is clearly mistaken in this regard, for under Wright
Line, supra, the burden of proof, once a prima facie case has
been established by counsel for the General Counsel, as I have
found has occurred here, shifts to the Respondent to demon-
strate by a preponderance of credible evidence, that its dis-
charge of J. Ulch was done for reasons unrelated to his union
activity. Thus, it was incumbent on the Respondent, not coun-
sel for the General Counsel, to show that the spinning of the
forklift tires constitutes a safety violation for which discipline,
including discharge, would be warranted.
The Respondent readily concedes, on brief, that it “failed to
establish [J. Ulch’s] operation as unsafe via expert testimony.”
(R. Br. 10.) The Respondent, however, did not need an expert
witness to makes its case, for it could simply have produced
other witnesses to testify, or documentary evidence (warnings,
discharges, etc.) to show, that it has, in the past, disciplined or
discharged employees for similar conduct. Such evidence
might have gone a long way towards rebutting counsel for
General Counsel’s prima face case. No such evidence, or for
that matter any evidence, other than Marszalkowski’s dubious
claim of what he observed J. Ulch doing with the forklift, was
produced to establish any misconduct by J. Ulch. The most
than can be said is that, as credibly testified to by J. Ulch, the
tires on his forklift spun inadvertently while traveling over a
wet, slippery, damaged dock plate. No evidence, as admitted
by the Respondent, was produced to show that his conduct in
this regard amounted to a violation of its safety rules. Accord-
ingly, I find that the Respondent has not rebutted counsel for
the General Counsel’s prima facie case, and that J. Ulch’s ter-
mination was unlawful and a violation of Section 8(a)(3) and
(1) of the Act.33

33 Other factors point to the alleged “safety violation” defense as
nothing more than a pretext. Thus, while not mentioned in the termina-
tion letter as a reason for the discharge, Marszalkowski in his testi-
mony, as noted, suggested, somewhat ambiguously, that J. Ulch was
also terminated for causing damage to the forklift. No evidence was
produced to show what, if any, damage may have been caused by
J. Ulch to the forklift. This strikes me as nothing more than a posthoc
attempt by Marszalkowski to beef up his rather weak explanation for
terminating J. Ulch, rendering it pretextual. Aljoma Lumber, Inc., 345
NLRB 261 (2005). Further, J. Ulch, as noted, testified, credibly and
without contradiction, to being told by Dotson, as the latter was escort-
ing him out of Marszalkowski’s office immediately following the ter-
mination, that the decision to fire him had come from higher up, sug-
gesting implicitly that the decision to terminate may have been arrived
at even before the alleged “tire spinning” incident had occurred. Fi-
nally, it is worth noting that, in addition to firing J. Ulch, Mar-
szalkowski also fired M. Ulch and Wilson the same day for, as dis-
cussed and found below, their union activities, thereby decimating
practically its entire evening shift of dockworkers which was comprised
of only four employees. The termination of these three union support-
MID-STATE EXPRESS 883
(2) Steven Wilson’s termination
Wilson began work at 1:30 p.m. on March 21, the day he
was fired. Like J. Ulch, Wilson was operating a forklift that
afternoon, moving tires from the dock area to a trailer sched-
uled for Cincinnati. He too noticed Marszalkowski and Dotson
hiding behind some freight and spying on him and other dock
employees. At one point, Marszalkowski and Dotson ap-
proached and asked him how much longer he would be with the
work he was doing. Wilson replied that he had just gotten
started, and that it was going to take a while longer. Both Mar-
szalkowski and Dotson then left his area and walked over and
stopped J. Ulch who was on the forklift. He next saw J. Ulch
going into the office. Wilson claims he entered the office a
short while later to ask for some help with the tires, and saw
J. Ulch walking down the forklift ramp followed by Mar-
szalkowski and Dotson. As J. Ulch went by him, the latter
asked him to call his brother, at which point Marszalkowski
angrily ordered Wilson back to work. Wilson did return to
work, and after finishing with the tires, went to lunchroom
where he encountered Gruic. Wilson asked Gruic if he could
take his lunch break before he got fired. Wilson explained that
he believed he was about to be fired because of his union activ-
ity. On leaving the lunchroom, Wilson went to the timeclock to
punch in, and, soon thereafter, was approached by Mar-
szalkowski and Dotson who told him they needed to see him in
the office.
Wilson then met with Marszalkowski and Dotson in Lach’s
office. Once inside, Wilson was asked to sit down and, on
doing so, was met with silence from Marszalkowski and
Dotson who simply stared at him for a minute or so. After this
staring event, Dotson stood up and Marszalkowski informed
Wilson that he was being terminated. When Wilson asked
why, Marszalkowski stated he could not give Wilson a reason
at that time, at which point Wilson and Marsalkowski shook
hands. Marszalkowski and Dotson then escorted Wilson out of
the facility and watched as he entered his automobile and drove
away. Wilson was not given a termination letter when fired,
although, as noted, a termination letter was, in fact, prepared
and received into evidence as General Counsel’s Exhibit-10,
listing “substandard” performance as the reason for the dis-
charge.34 Although dated March 21, it is unclear when the
termination letter was prepared.
Marszalkowski’s testimony regarding Wilson’s discharge
was limited only to confirming that the discharge occurred on
March 21, and that it was for the reason stated in the termina-
tion letter. He did not deny any of the assertions made by Wil-
son regarding the events preceding the discharge, or the state-
ments attributed to him by Wilson, including the latter’s claim
that Marszalkowski declined, without explanation, to give him

ers on the same day, shortly after their attendance at a union meeting
and after being subjected to coercive interrogations by their supervi-
sors, was, I am convinced, no mere coincidence, but rather part of the
Respondent’s plan to defeat any attempt to unionize the facility.
34 GC Exh.-10 goes on to describe Wilson’s substandard perform-
ance as consisting of “multiple occasions of improper loading, damag-
ing company property, unexcused absences, and excessive absentee-
ism,” which “offenses,” the letter further avers, “are documented in Mr.
Wilson’s personnel file.”
a reason for the termination at that time. Wilson’s undisputed
testimony regarding his discharge and the events preceding it is
credited.
Discussion
Wilson is alleged in the complaint to have been discharged
for his union activities. Undisputed evidence makes clear that
Wilson was a Local 20, supporter, having signed a union au-
thorization card just 2 days before being discharged. He credi-
ble, and without contradiction, testified to being questioned by
Lee about his attendance at the union meeting a few days be-
fore his termination, and to telling Lee how the meeting had
gone. Clearly, from this conversation, and from Wilson’s ad-
mission to Lee several months earlier around August 2006, that
he favored having a union, Lee would have known of Wilson’s
prounion sympathies. Wilson also revealed his union sympa-
thies to Lach when, in early March, he complained about being
asked to watch an antiunion video which he viewed as slander-
ous to the Union. Evidence of Respondent’s animus towards
the Union and its supporters has previously been described in
connection with the unlawful, union-related terminations of
Confere, Rea, Goodsell, and J. Ulch and will not be repeated
here. On these facts, I find that counsel for the General Coun-
sel has satisfied her initial Wright Line burden and shown that
Wilson’s discharge was motivated by antiunion considerations.
The Respondent, as briefly testified to by Marszalkowski,
claims it lawfully discharged Wilson for being “a substandard
employee” with performance and absenteeism problems. (Tr.
68.) In support of the discharge, the Respondent produced an
“Employee Discussion Form” which is used to record the vari-
ous infractions or violations of company rules committed by an
employee. (R. Exh.-17.) This particular form lists all infrac-
tions or violations purportedly committed by Wilson during a
20-month period beginning “7/19/05” to “3/21/07.” Among the
infractions listed in Respondent’s Exhibit-17 are “improper
loading,” “damaging freight,” “taking extended lunchbreak,”
“sexual harassment” and related allegation, “failure to count
freight,” “accidents/crashes,” and excessive absenteeism.
Shown Respondent’s Exhibit-17, Wilson was able to recognize
the document but had difficulty recalling the specific incidents
set forth therein.
Marszalkowski testified that the Respondent maintains a
progressive disciplinary policy which calls for issuance of an
initial letter of instruction, followed by a warning letter, then a
final warning letter, and finally a letter of termination. Manag-
ers have some latitude in determining how many letters of in-
structions to issue before proceeding to a warning letter, but
may, depending on the nature of the infraction, issue a warning
letter without first issuing a letter of instruction. According to
Marszalkowski, the Respondent maintains different tracks for
different offenses. For example, attendance infractions are kept
on one track, infractions involving production-related work,
such as damaging freight or improper loading of freight, would
be on different tracks. Thus, the nature of the violation will
determine which track will be used in applying the progressive
disciplinary policy. Marszalkowski also testified that while the
Respondent does not have a set period of time after which an
infraction will be removed from an employee’s file or no longer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD884
considered under the progressive disciplinary policy, he did
admit that, informally, infractions more than a year old are
generally not considered. (Tr. 32, 35.)
The Respondent’s claim that it fired Wilson for being a
“substandard” employee simply does not withstand scrutiny.
The discharge was not the result of anything Wilson had done
that day, or recently, but rather for what the Respondent would
have me believe was his overall poor performance as an em-
ployee. It points to three separate warnings purportedly issued
to Wilson wherein he is cautioned that further similar infrac-
tions could lead to his suspension and/or termination.35 It is
true that, as shown in Respondenet’s Exhibit-17, Wilson had a
history dating from July 19, 2005, to March 8, 2007,36 of com-
mitting a variety of different work-related infractions. It is
equally true, however, that the Respondent, at no point prior to
March 21, viewed his overall performance/attendance problems
to be sufficiently serious as to merit his termination, for it obvi-
ously allowed him to continue working following the warning
issued to him 2 weeks earlier for mishandling freight containing
hazardous material. The fact that he was not terminated on
March 8, for the “mishandling freight” warning suggests that
the Respondent was not overly troubled by this infraction, at
least not to the point of discharging him. The Respondent has
offered no explanation as to why, having allowed Wilson to
continue working despite these past infractions, it chose to
abruptly terminate Wilson on March 21, without providing a
reason or explanation for doing so. The record reveals that the
only intervening events of any significance between the warn-
ing issued to him on March 8, and his discharge on March 21,
was Wilson’s attendance at the March 17, union meeting, his
signing of a union card for Local 20, and his coercive interroga-
tion by Lee about his the union meeting just days before the
discharge.
As to Respondent’s claim that Wilson was fired pursuant to
its progressive disciplinary policy, there are sound reasons for
doubting its assertion. Thus, the record, as noted, shows that
the last discipline imposed on Wilson before his March 21,
termination was the warning letter issued to him on March 8,
allegedly for mishandling some hazardous material. In that
letter, the Respondent cautioned Wilson that “[a]ny further
instances of this nature will result in further disciplinary action
leading up to and including suspension and/or termination.”
Clearly, the Respondent chose not to terminate him for this
infraction but instead simply warned him that a future infrac-
tion of this kind might very well result in his termination. As

35 See, R. Exhs.-16, -18 and GC Exh.-34. R. Exh.-16 is a warning
issued to Wilson on December 29, 2006, more than 3 months before his
discharge for “misloaded freight.” R. Exh.-18 is a warning issued to
him on January 20, 2007, again for “misloading freight.” GC Exh.-34,
however, cited by the Respondent on brief (p. 17) as another warning
presumably issued to Wilson, is, in fact, a warning issued to Bill Lee,
and not to Wilson. GC Exh.-34, therefore, has no relevance to Wil-
son’s discharge.
36 The next-to-last entry on R. Exh.-17 shows a notation of a “warn-
ing letter” purportedly having been issued to Wilson on “3/8/07,” Wil-
son recalls receiving this warning but refusing to sign it. The warning
allegedly was issued for mishandling freight labeled hazardous material
and containing sulfuric acid. See GC Exh.-22.
stated, however, there is no evidence to indicate that Wilson
engaged in any kind of misconduct or committed any other type
of infraction between March 8 and 21. Similarly, in the two
warnings referenced by the Respondent in its brief, Respon-
dent’s Exhibit-16 issued December 29, 2006, and Respondent’s
Exhibit-18 issued January 20, 2007, the Respondent again
warned that future “improper loading” infractions might result
in a suspension and/or termination. There is no evidence that,
during the 3-month period between the January 20, 2007 warn-
ing issued to him and his termination, Wilson committed any
other “improper loading” infraction.
As to his absenteeism infractions (R. Exh.-17), the employee
discussion form, shows only that Wilson was issued a warning
letter on March 1, 2007, for excessive absenteeism. It also
contains a notation showing that, on February 27, 2007, Wilson
had an unexcused absence for calling in 1 hour before the start
of his shift, but does not reflect if he was issued a letter of in-
struction or a warning for this incident. In essence, therefore,
all Respondent’s Exhibit-17 shows regarding Wilson’s alleged
absenteeism problem is that, from July 19, 2005, to March 21,
2007, a period of some 20 months, Wilson only received one
warning on March 1, 2007, for excessive absenteeism. The
March 1, 2007 warning letter was not produced by the Respon-
dent. Thus, it is not known if, under Respondent’s progressive
disciplinary system, the March 1, 2007 warning was intended
as a first, or final, warning letter. It is nevertheless patently
clear from Respondent’s own documentary evidence, to wit (R.
Exh.-17), that Wilson’s, at most 2 days of absences, on Febru-
ary 27 and again on March 21, during a 20-month period hardly
fits the description of an “excessive absenteeism” problem. No
evidence was produced by the Respondent to show how it de-
fined “excessive absenteeism,” or to show that other employees
with a similar absentee record as Wilson’s were treated in like
manner, e.g., suspended or discharged for missing work twice
in an almost a 2-year period. I am convinced no such evidence
was produced because none exists.
As the only evidence produced by the Respondent shows that
Wilson’s absenteeism from work amounted to, at most, 2
missed days of work, it is highly unlikely that the Respondent
was following its progressive disciplinary policy when it dis-
charged him, in part, for this reason. Thus, under that policy,
Wilson would have had to receive an initial letter of instruction,
an initial warning letter, a final warning letter, and finally a
termination letter for his alleged excessive absenteeism which,
by implication, suggests he would have had to have at least
three absences before being subject to termination. Clearly, he
did not, as the Respondent’s records show, at most, only two
absences for Wilson during a 20-month period, and no evidence
was produced to show he received anything other than the one
written warning issued to him on March 21. In light of the
above, I am convinced, and so find, based on the near total lack
of evidence showing Wilson had an “absenteeism” problem,
that the Respondent’s claim of having discharged Wilson, in
part, for his alleged “excessive absenteeism” and “unexcused
absence” problem is nothing more than a pretext intended to
hide its true reason for the discharge, his union activities.
In sum, neither Wilson’s alleged “excessive absenteeism”
nor his “improper loading” infractions could have been factors
MID-STATE EXPRESS 885
in his termination. As to the former, the Respondent’s own
documentary evidence fails to show that Wilson had an “absen-
teeism” problem, or that he ever received the requisite cautions
and/or warnings called for by Respondent’s progressive disci-
plinary prior to being terminated. As to the “improper loading”
infractions, the most recent one issued to him prior to his dis-
charge, as stated, occurred on March 8, for mishandling some
hazardous material freight. However, this infraction led only to
him being cautioned against “further instances of this nature.”
The Respondent produced no evidence to show that from
March 8, when he was issued this warning, to March 21, when
he was discharged, Wilson committed any such infraction, or
any other infraction for that matter. Clearly, something other
than some workplace infraction by Wilson, or his nonexistent
absenteeism problem must have triggered Respondent’s rather
rash decision to terminate him on March 21. As stated, the
only intervening events that occurred during this period were
Wilson’s decision to attend the union meeting and sign a union
card on March 17, and his unlawful questioning by Lee regard-
ing his attendance at that meeting a day or so before the termi-
nation. In these circumstances, and given the pretextual and/or
false reasons proffered by Respondent for terminating Wilson, I
find that Wilson’s discharge was motivated solely by his activi-
ties on behalf of Local 20, and thus violated Section 8(a)(3) and
(1) of the Act.
(3) Merle Ulch’s termination
M. Ulch worked as a dockworker from 5 p.m.–5 a.m. at the
Toledo facility from sometime in 2006 until fired on March 21,
for, according to the Respondent, “insubordination,” or, as
more explicitly spelled out in his termination letter, “violence
in the workplace.” (GC Exh.-9; Tr. 67.)37

37 Marszalkowski identified GC Exh.-9 as M. Ulch’s termination let-
ter. The letter is somewhat ambiguous and confusing as to the precise
reason for M. Ulch’s termination. The letter, for example, cites “3)
insubordination” as a grounds for the discharge, but then contains the
following brief narrative under the subsection “9) OTHER” purporting
to explain the reason(s) for the discharge: “Express violence in the
workplace, gross insubordination and leaving the workplace without
permission. On 3/8/07 Merle Ulch threatened Outbound Supervisor
Greg Gruic while using aggressive and profane language in response to
a question that was asked by Greg Gruic. Merle Ulch then said he was
ill and punched out and left the terminal. This is in direct violation of
company policy and Merle Ulch was terminated. He was told his ser-
vices were no longer needed because of the Violence in the work
place.” Thus, while the letter states, on the one hand, that M. Ulch’s
“leaving the work place without permission” was a factor in his termi-
nation, the last sentence in the narrative, on the other hand, suggests
that his early departure from work on March 8, may not have been a
factor since it reflects that M. Ulch was told only that his “services
were no longer needed because of the Violence in the workplace.” This
apparent ambiguity was not explained by Marszalkowski during his
limited testimony. Nor is it clear who may have prepared GC Exh.-9,
for Marszalkowski never claimed to have done so. The document does
contain what appears to be the signature of a supervisor. Mar-
szalkowski, however, was unable to identify who the signature be-
longed to, admitting that it was not his. Further, while the letter is
dated “03/21/07,” no evidence was produced as to when it was pre-
pared. Marszalkowski, it should be noted, never claimed to have given,
M. Ulch appeared to have been one of the employees most
responsible for trying to bring in the Union. Thus, he testified,
without contradiction, that on March 14, 1 week before being
discharged, he contacted Local 20 on his own and spoke with
Local 20 organizer, Norm Lewallen, about obtaining represen-
tation at the Toledo facility. After discussing the matter with
Lewallen, M. Ulch signed a Local 20 authorization card and
took other blank cards to hand out to other employees. M. Ulch
explained that he and other employees sought out the Union
because they were having problems at work, including unsafe
working conditions, and their inability to get their hospital and
other medical bills paid because Respondent was not paying its
share of the premiums.
M. Ulch recalled that sometime after his March 14, union
meeting and before his March 21, discharge, he and Supervisor
Lee were talking in the dispatch office when Lee asked him
how the Union had gotten started at the Toledo facility, and
how it was proceeding. At one point during that conversation,
Lee mentioned that employees at the Cleveland facility were
about ready to vote in a union. (Tr. 724.) Lee, as noted, claims
he learned of M. Ulch’s involvement with Local 20 sometime
in February.
M. Ulch testified to an incident that occurred on March 8,
several days before he contacted the Union, and which the Re-
spondent claims was the basis for his eventual termination on
March 21. Thus, on March 8, there was spill of sulfuric acid at
the facility resulting in the fire department being called, which,
in turn, summoned a HAZMAT team. At the time of the spill,
M. Ulch was assigned to load a truck situated right next to the
spill site. M. Ulch proceeded to load the truck despite experi-
encing a burning in his eyes, a sore throat, an upset stomach,
and drowsiness presumably due to the acid fumes and his prox-
imity to the spill as he performed his work. On completing his
assignment, M. Ulch approached Gruic in the dispatch office
and complained about his symptoms. Gruic, he contends, was
reluctant to let him leave to obtain treatment for his symptoms,
at which point M. Ulch told Gruic, and others who were there
at the time, that he was not quitting, but was going to punch out
because he was sick and was going to the hospital.
M. Ulch did in fact go straight to the hospital. The following
day, M. Ulch returned to work with a hospital slip showing he
had been treated at the Toledo Hospital Medical Center, which
he handed to Lach. (GC Exh.-32.) Lach, M. Ulch claims, told
him that Gruic had written him up presumably for leaving work
early the night before, but that, since M. Ulch had gone straight
to the hospital and had a hospital slip to prove it, the writeup
would be rescinded. According to M. Ulch, he was never dis-
ciplined for this particular incident.
Gruic testified that on the day of the acid spill, he was out on
the dock talking with J. Ulch somewhere between 5–7 p.m.,
when Wilson, who was in the process of unloading a straight
truck, dropped a box as he was backing out of the truck. Wil-
son, he contends, simply picked up the box and set it aside near
a pole. A few minutes later, the box began leaking some liquid
which began to smoke as it touched the concrete floor. On

shown, or read the contents of the termination letter to M. Ulch when
discharging him on March 21. (Tr. 66.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD886
noticing a puddle forming on the floor, Gruic instructed Wilson
to clean up the spill. Wilson, he contends, declined to do so
because it was “hazardous” material, at which point J. Ulch
agreed to do it.
Some 10 minutes later, the fire department arrived, explain-
ing they had received a call about a hazardous material spill.
Gruic escorted the firemen to the location of the spill and, on
reviewing the site, purportedly told Gruic that “it looks like you
guys are doing the right job, but let’s go ahead and call some-
body.” Gruic proceeded to call Respondent’s safety director,
John Ferenczi, who instructed Gruic to call in a cleanup crew.
Gruic did so, and about a half hour later, a member of the
cleanup crew showed up and finished cleaning the spill. (Tr.
1002.)
According to Gruic, later that evening, around 9 p.m., he
called out over the PA system, as he did nightly, for employees
to bring him their bills. M. Ulch, he contends, showed up about
one half hour later with his bill, and Gruic asked what took him
so long. M. Ulch purportedly threw his bills on the counter and
walked away as if nothing had happened. Gruic then asked
M. Ulch what was wrong, and the latter replied that he was sick
and was going home. When Gruic asked what he (M. Ulch)
was so “pissed off about,” M. Ulch purportedly replied, “This
Company’s messed up, this is bullshit. If you’re going to get on
my case, why don’t you get on everybody’s case because eve-
rybody else is working just as slow as I am.” Gruic asked
M. Ulch what he was talking about, and M. Ulch allegedly
answered, “If you keep pushing me, you’re going to regret it,”
pointing his finger at Gruic as he did so. M. Ulch, he recalled,
looked at everyone in the break room and said, “I’m sick, I’m
going to go home. I’m sick. You guys all hear this, right? I’m
sick.” M. Ulch then punched out and left. Gruic claims that
M. Ulch did not seem sick to him, and did not receive permis-
sion to leave work early. Gruic made no mention in his testi-
mony of having issued M. Ulch a warning or taking any other
disciplinary measure against him for leaving early, or for his
conduct and “you’re going to regret it” comment to Gruic. Nor
was any documentary evidence produced to show that M. Ulch
was cautioned, warned, reprimanded, or otherwise disciplined
for his alleged misconduct on March 8.
Lach worked for Respondent from August 2005, through
March 21, when, as noted, he was fired from his district man-
ager position at the Toledo facility. He testified he first heard
that the Toledo employees had contacted a union on March 19,
from an employee, Rick Estes, who informed him of a union
meeting which had been held the previous Sunday. The follow-
ing day, March 20, before leaving the facility, Lach sent
B. Hartmann a voicemail telling him that “the Union problems
were progressing at Toledo, and we needed someone higher up
to come out and talk to them,” presumably referring to employ-
ees. Lach was terminated the following day by Marszalkowski
who, according to Lach’s undisputed and credited account,
simply approached Lach as he sat in his office and told him,
without explanation, “Clean out your desk, you’re fired.”
Regarding M. Ulch’s March 8, incident when the latter left
work complaining of fumes-related medical problems, Lach
was not at work that day and, consequently, had little to say as
to what may have occurred. He did, however, testify that he
did not discipline M. Ulch for leaving work early that day. He
explained that he had been trained, presumably by the Respon-
dent, that if an employee already at the facility reports being
sick either before beginning a work assignment or after com-
pleting one, it was his practice to let the sick employee go
home. Lach claims that, based on what he had been told,
M. Ulch had completed his assignment when he asked to leave
the facility and, for this reason, did not feel discipline was justi-
fied. He further expressed the view that M. Ulch’s subsequent
termination was not warranted. Lach made no mention in his
testimony of having told M. Ulch about a writeup prepared by
Gruic, nor, for that matter, was Griec asked if he had prepared
any such writeup on M. Ulch, as M. Ulch claims he was told by
Lach.
Unlike Lach, Lee did witness the exchange between Gruic
and M. Ulch on March 8. Lee testified that on arriving to work
March 8, he observed chaos on the dock, and that the rear part
of the dock had been quarantined and cordoned off by
HAZMAT personnel due to the acid spill. The spill was appar-
ently in the process of being cleaned up when he arrived. Later
that evening, Lee saw M. Ulch enter the breakroom with some
bills in his hand reflecting that he had just finished unloading a
trailer. As M. Ulch entered the room, Gruic asked the latter if
he had the bills from another trailer that had been loaded, and
M. Ulch replied he had, and that he was in the process of writ-
ing up the bill for the other trailer. Gruic, Lee contends, told
M. Ulch that he would have to unload the other trailer to find
out what had been loaded and to ensure that the correct freight
was put on, even though M. Ulch told him he had the bills re-
flecting what had been loaded. M. Ulch, according to Lee,
became upset and told Gruic he was going home, that he was
feeling sick from having to help clean up the acid spill, and was
going to the hospital. Gruic insisted that M. Ulch remain and
get the work done so that the drivers could get out. M. Ulch
replied that he was leaving for the hospital and would bring
back a hospital slip in the morning to confirm his visit. Al-
though he admits that M. Ulch was angry at being asked by
Gruic to unload a trailer truck, in his version of the exchange
between Gruic and M. Ulch, Lee makes no mention of seeing
M. Ulch point his finger at Gruic or say to him, “If you keep
pushing me, you’re going to regret it,” as testified to by Gruic.
M. Ulch, as noted, likewise made no mention of it in his testi-
mony. Rather, Lee’s testimony appears to be more in line with
M. Ulch’s version of the incident, than with Gruic’s. I credit
M. Ulch’s account and find that he never implicitly or other-
wise threatened Gruic by pointing his finger at Gruic and tell-
ing him he would regret it if he, Gruic, kept pushing him.
On the day he was fired, M. Ulch, like J. Ulch and Wilson,
recalled seeing Marszalkowski and Dotson hiding behind some
freight observing him and others working. At the time, he did
not know who Marszalkowski was, but apparently learned later
that day who he was from J. Ulch. He recalls at one point see-
ing some police officers in the main office. Wilson approached
him a bit later and told him J. Ulch had just been terminated
and that he, M. Ulch, was next. M. Ulch then returned to work
and, some 20 minutes later, Marszalkowski approached him,
told him to shut down his equipment, and to follow him to Mar-
szalkowski’s office. Once there, Marsazlkowski remarked,
MID-STATE EXPRESS 887
“You probably know what this is,” referring to M. Ulch’s ter-
mination, to which the latter replied, “yeah,” and then asked for
a reason for his termination. Marszalkowski told M. Ulch that
his position was no longer needed, and then angrily instructed
him to “just punch out and get the fuck off the property.”
M. Ulch left the premises at that point. M. Ulch claims he
never received or was shown a copy of his termination notice.
As Marszalkowski did not refute M. Ulch’s version of his dis-
charge meeting, I credit M. Ulch’s account and find Mar-
szalkowski simply told him, in response to his query on why he
was being fired, that M. Ulch’s position was no longer needed.
Marszalkowski, I find, made no mention of the March 8, events
between M. Ulch and Gruic at the former’s discharge meet-
ing.38 I also credit M. Ulch and find he was never given or
shown a copy of his termination notice.
Discussion
Applying a Wright Line analysis to M. Ulch’s discharge, I
find that counsel for the General Counsel has made a prima
facie showing that M. Ulch’s discharge was unlawfully moti-
vated by antiunion considerations. M. Ulch, as noted, was one
of Local 20’s initial proponents and supporters. He credibly
explained that he visited Local 20’s office on his own to obtain
information on how to obtain representation, signed an authori-
zation card on its behalf, solicited others to do so, and attended
union meetings. The record, in particular, Lee’s undisputed
testimony, makes clear that the Respondent was fully aware of
M. Ulch’s involvement with Local 20 as early as February, one
month before terminating him. It is equally clear, as already
pointed out above in connection with the unlawful, union-
motivated terminations of Confere, Rea, Goodsell, J. Ulch, and
Wilson that the Respondent harbored animosity towards the
Union and its supporters, and was determined to eliminate the
union threat by ridding itself of its more ardent supporters.
The Respondent has proffered mixed reasons for terminating
M. Ulch. Thus, at the hearing, Marszalkowski stated that
M. Ulch was terminated for expressing violence in the work-
place by telling Gruic on March 8, that he was “going to knock
him on his ass.” Asked if this was the sole reason for
M. Ulch’s termination, Marszalkowski answered that it was.39

38 It is unclear how or when Marszalkowski first learned of the
March 8 incident, for he never provided any such explanation during
his limited testimony on M. Ulch’s discharge. Nor did Gruic claim to
have informed Marszalkowski of the incident. Indeed, when asked on
cross-examination if an assertion made by Lach, that he, Gruic pre-
ferred discussing the operations of the Toledo facility with Mar-
szalkowski rather than with Lach, Gruic answered that he did not think
Lach would have said such a thing because, Gruic readily explained, “I
don’t talk to Tim [Marszalkowski].” Gruic’s admission, that he did not
speak with Marszalkowski during his employment at the Toledo facil-
ity, and Marszalkowski’s statement to M. Ulch that he was being let go
because he was no longer needed, leads me to question whether Mar-
szalkowski was even aware of the March 8 incident when he dis-
charged M. Ulch on March 21.
39 A review of his answer to counsel for the General Counsel’s ques-
tion on whether this was the only reason for the termination shows
Marszalkowski responding, “Correct. That’s why Mr. Lach was termi-
nated.” Tr. 67. It is clear from the record that Marszalkowski misspoke
when he mentioned Lach, for he was at the time being questioned as to
Several factors point to Marszalkowski’s explanation as be-
ing nothing more than a pretext. First, Marszalkowski himself
never witnessed the incident, so that his claim as to what
M. Ulch may have said to Gruic on March 8, is obviously based
on second-hand information. Marszalkowski, however, never
identified who may have reported this incident to him, or when.
Gruic, for his part, never claimed to have informed Mar-
szalkowski of what occurred on March 8, between him and
M. Ulch. Second, according to Gruic’s account, what M. Ulch
said to him was that “[i]f you keep pushing me you’re going to
regret it.” Gruic never claimed that M. Ulch threatened to
“knock him [Gruic] on his ass,” as testified to by Mar-
szalkowski. Third and foremost, M. Ulch, as found above,
credibly denied threatening Gruic, either as described by the
latter, and much less as testified to by Marszalkowski, whose
testimony in this regard, I find, to be a pure fabrication given
the inconsistency between his and Gruic’s account, and his
failure to identify who reported the incident to him, or when he
first learned of it.
Further, notwithstanding Marszalkowski’s claim that
M. Ulch was terminated only for threatening Gruic on March 8,
the Respondent, on brief, avers that M. Ulch was also dis-
charged for “leaving the workplace without permission,” refer-
encing in support thereof General Counsel’s Exhibit-9, the
termination letter. (R. Br. 11.) Again, there are several prob-
lems with this particular explanation. First, it is inconsistent
with Marszalkowski’s admission at the hearing that M. Ulch
was discharged solely for his alleged threat to Gruic on
March 8, and not for leaving work early that day. These incon-
sistent explanations proffered by the Respondent and by Mar-
szalkowski for M. Ulch’s termination strongly support an infer-
ence that they are pretextual in nature and not the true reason
for his discharge. Roosevelt Memorial Medical Center, 348
NLRB 1016 1030 (2006); GATX Logistics, Inc., 323 NLRB
328, 335 (1997). Second, and as previously discussed (see fn.
37, supra), the termination letter itself is ambiguous as to the
reasons for the termination, as it implicitly suggests, contrary to
the Respondent’s proffer on brief, that M. Ulch’s early depar-
ture from work on March 8, was not a factor in his termination.
Third, any reliance by the Respondent on the termination letter
to explain M. Ulch’s discharge is misplaced, as there is strong
reason to question, if not doubt, its authenticity and reliability.
Thus, no evidence was produced to show who authored or pre-
pared it, or when it was prepared. Incredulously, Marszar-
lkowski, who terminated M. Ulch, never identified who pre-
pared the document, when it was prepared, or whose signature
appears as supervisor on the letter. As noted, M. Ulch credibly
testified that General Counsel’s Exhibit-9 was never read,
shown, or given to him before his discharge, an assertion that
was not disputed by Marszalkowski. M. Ulch’s further claim
that he was only told he was no longer needed without being
given an explanation credibly contradicts the unsubstantiated
statement in the discharge letter that he was told he was being

the reasons for M. Ulch’s, not Lach’s, termination, and that the ques-
tion which preceded his above-described answer related directly to
M. Ulch’s discharge. There is nothing in the record to suggest that
Lach was fired for the same reason.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD888
let go because of his alleged “[v]iolence in the workplace.”
The various inconsistencies and discrepancies surrounding
General Counsel’s Exhibit-9, along with its rather dubious and
unexplained origin, render it of little or no value on the ques-
tion of M. Ulch’s termination, and thus offers no support for the
Respondent’s stated explanation for the discharge.
As to the Respondent’s claim on brief that M. Ulch was also
terminated for leaving work early without approval on March 8,
this too does not withstand scrutiny, for, according to Lach’s
credited and undisputed testimony, employees who became ill
at the workplace either before or after completing an assign-
ment were generally not penalized for leaving work early.
Lach opined, based on his knowledge of what occurred, includ-
ing the fact that M. Ulch had completed his assignment before
leaving work on March 8, that disciplining M. Ulch for doing
so that day would not have been justified. In fact, M. Ulch,
who came in the following day with a document confirming his
visit to the hospital the night before, was never disciplined for
leaving work early. The Respondent’s decision, therefore,
some 2 weeks after the fact, to terminate M. Ulch purportedly
for leaving work early without authorization on March 8, after
declining to do so on the day in question, strikes me as purely
pretextual. See Traction Wholesale Center, Inc., 328 NLRB
1058, 1073 (1999). I find, instead, that neither M. Ulch’s leav-
ing work early on March 8, nor his alleged insubordinate be-
havior towards Gruic that day, which I have already found did
not occur, were factors in M. Ulch’s termination. As the Re-
spondent has failed to provide a legitimate reason for M. Ulch’s
termination, it follows that it has not overcome counsel for the
General Counsel’s prima facie case. Accordingly, I find that
M. Ulch’s termination was, as alleged in the complaint, dis-
criminatorily motivated by his union activities and, conse-
quently, a violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Mid-States Express, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Brotherhood of Teamsters, Local No. 20 and
Freight Drivers, Dockworkers and Helpers Local Union No. 24,
a/w International Brotherhood of Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By threatening to close its facilities and with job losses if
employees chose the Unions to represent them, threatening to
discharge employees because they supported the Unions, coer-
cively interrogating employees, creating the impression that it
was keeping their union activities under surveillance, soliciting
employee grievances, and promising to resolve them, promising
to improve the employees’ benefits to dissuade them from sup-
porting the Unions, and interfering with the right of individuals
to distribute union literature on public property by calling the
police, the Respondent violated Section 8(a)(1) of the Act.
4. By terminating Richfield facility employees Shawn Con-
fere, Justin Rea, and David Goodsell for their activities on be-
half of Local 24, and Toledo facility employees Jason Ulch,
Merle Ulch, and Steven Wilson for their activities on behalf of
Local 20, the Respondent violated Section 8(a)(3) and (1) of the
Act.
5. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy its unlawful discharge of employees Shawn Con-
fere, Justin Rea, David Goodsell, Jason Ulch, Steven Wilson,
and Merle Ulch Jr., the Respondent shall be required to offer
them, within 14 days from the date of the Order, reinstatement
to their former positions or, if their positions no longer exist, to
substantially equivalent positions, without prejudice to the
rights and privileges they previously enjoyed.
The Respondent will also be required to make the above-
named employees whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of dis-
charge to the date of a proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall further be required to, within 14 days
from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges and, within 3 days thereaf-
ter, to notify the above employees, in writing, that this has been
done and that the discharges will not be used against them in
any way.
Finally, the Respondent shall be required to post an appro-
priate notice to employees.40
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended41
ORDER
The Respondent, Mid-States Express, Inc., Toledo and
Cleveland, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interfering, restraining, or coercing employees in the ex-
ercise of the rights afforded them under Section 7 of the Act by
threatening to close its facilities and put employees out of work
if they selected the Union to represent them, threatening to
discharge employees for supporting the Union, interrogating
employees about their union activities, creating the impression
it is keeping their union activities under surveillance, soliciting

40 I find it unnecessary to require the Respondent, as requested by
counsel for the General Counsel on brief, to post the notice at all of the
Respondent’s facilities, not just at its Richfield and Toledo, Ohio facili-
ties. Nor do I find it necessary to require the Respondent to mail copies
of the notice to former employees who were employed at the Richfield
and Toledo facilities during the relevant time period herein, or to have
the contents of the posted “Notice to Employees” read aloud to em-
ployees at those facilities, as I find the standard posting requirements
are sufficient satisfy the Board’s remedial purposes.
41 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
MID-STATE EXPRESS 889
and promising to resolve employee grievances to dissuade them
from supporting the Union, promising to improve their benefits
if they withdrew their support for the Union, and by interfering
with their right to handbill on public property by calling the
police.
(b) Discharging or otherwise discriminating against any em-
ployee at its Toledo, Ohio facility for supporting International
Brotherhood of Teamsters, Local No. 20, or at its Richfield
facility in Cleveland, Ohio, for supporting Freight Drivers,
Dockworkers and Helpers Local Union No. 24, a/w Interna-
tional Brotherhood of Teamsters, or for supporting any other
union.
(c) 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Merle
Ulch, and Steven Wilson full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Shawn Confere, Justin Rea, David Goodsell, Jason
Ulch, Merle Ulch, and Steven Wilson whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Cleveland (Richfield) and Toledo, Ohio, copies of the
attached notice marked “Appendix.”42 Copies of the notice, on
forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive 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 Re-

42 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 15, 2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere, restrain, or coerce you in the exercise
of your above-described rights by threatening to close our fa-
cilities and put employees out of work if they choose to have a
union represent them, threaten to discharge you for supporting
a union, interrogate you about your union activities, create the
impression that your union activities are being kept under sur-
veillance, solicit your grievances and promise to remedy them,
or promise you increased benefits, to dissuade you from sup-
porting a union, or interfere with your right to distribute union
literature on public property by calling the police.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting International Brotherhood of Team-
sters, Local No. 20, or Freight Drivers, Dockworkers and Help-
ers Local Union No. 24, a/w International Brotherhood of
Teamsters, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Merle
Ulch, and Steven Wilson full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Shawn Confere, Justin Rea, David Goodsell,
Jason Ulch, Merle Ulch, and Steven Wilson whole for any loss
of earnings and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD890
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of
Shawn Confere, Justin Rea, David Goodsell, Jason Ulch, Merle
Ulch, and Steven Wilson, and WE WILL, within 3 days thereaf-
ter, notify each of them in writing that this has been done and
that the discharges will not be used against them in any way.
MID-STATES EXPRESS, INC.