Mid-States Express, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 19, 2008

08-CA-037168 (N.L.R.B. Sep. 19, 2008)

JD-49-08
Cleveland and
Toledo, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MID-STATES EXPRESS, INC.
and Case No. 8-CA-37168
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL UNION NO. 20
and Case No. 8-CA-37302
FREIGHT DRIVERS, DOCKWORKERS
AND HELPERS LOCAL UNION NO. 24,
a/w INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
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
consolidated 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 (herein the Richfield facility), Ohio facilities engaged in
certain unlawful conduct that violated Section 8(a)(1), including threatening to close its facilities
and put employees out of work if they voted for union representation, threatening to discharge
employees for their union activities, interrogating employees 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

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 (herein 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
(herein Local 24) on July 13, and amended September 28, and October 31.
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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 (herein J. Ulch), Merle Ulch (herein M. Ulch),
and Steven Wilson.2
All parties at the hearing were afforded a full and fair opportunity to be heard, to present
oral and written evidence, to examine and cross-examine witnesses, and to argue orally on the
record. On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by Counsel for the General Counsel and the Respondent, I
make the following3
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
facilities 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 Local 20 and Local 24 are labor organizations within the meaning of Section
2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Factual background

2 M. Ulch is J. Ulch’s father, and Wilson is M. Ulch’s brother-in-law.
3 In her post-trial brief, Counsel for the General Counsel, inter alia, moves to correct the
record in certain respects. Thus, she seeks to have Respondent Exhibits ( (RX) 8, 11, and 15
placed in a separate “rejected” exhibit file to reflect that they were not accepted into evidence.
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” 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., Transcript 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 Counsel’s brief (GCB) at page 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 Counsel 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, Missouri, Nebraska, Ohio, North
Dakota, South Dakota, and Wisconsin.
5 Richfield is a suburb of Cleveland.
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The Respondent is a family-owned business. Terry Hartmann serves as its President
and Chairman, and his son, Brad Hartmann (herein B. Hartmann), as its Chief Operating
Officer.6 Tim Marszalkowski has, since April 23, 2007, served as Respondent’s Regional
Manager, with responsibility over six facilities, including the Toledo and Richfield facilities, as
well as facilities in Columbus, and Cincinnati, Ohio, Fort Wayne, Indiana, and Bay City,
Michigan. Prior to assuming his regional manager 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
2(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,
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 Respondent’s facilities experienced
organizational drives by various local unions seeking to represent employees at those facilities.
At Respondent’s Lasalle, Illinois facility, for example, Teamsters 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 GCX-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
negotiate a bargaining agreement. (GCX-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 truck drivers who came in and out of the
Toledo facility to and from said locations.
The complaint alleges that during the course of these ongoing organizing campaigns,
the Respondent, through Marszalkowski and other supervisory or managerial personnel,
directed certain coercive and unlawful conduct towards employees at the Richfield and Toledo
facilities in order to dissuade them from supporting the unions’ organizational efforts. A
discussion of these allegations follows.
1. The Richfield facility
a. The alleged Section 8(a)(1) conduct
(i) Statements attributed to Marszalkowski

6 Other members of the Hartmann family involved in the business include Bruce Hartmann
as Vice-President, and Barbara Hartmann as Secretary.
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 facilities in Decatur, Illinois,
Grand Rapids, Michigan, and facilities in Columbus and Cincinnati, Ohio.
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Paragraphs 6, 7, 9, and 10 of the complaint allege that sometime in February,
Marszalkowski threatened employees at the Richfield facility with plant closure and discharge if
they selected 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 Richfield facility from September
11, 2006, until discharged, allegedly for unlawful reasons, on March 2. At the time of his
termination, Confere worked from 6 a.m.-3:30 p.m., and was being supervised by Stamp and
Marszalkowski. Confere identified 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 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 Richfield facility break room. 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 meetings, 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 employees
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. Marszalkowski, 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 Marszalkowski and, sometimes, Stamp, among drivers and
dockworkers. 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
Marszalkowski 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 attributed 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).
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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 Richfield 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 evidence produced by the Respondent to counter Confere’s account 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 Marszalkowski
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
meetings, including the showing of antiunion videos, Harmon’s testimony regarding these
meetings was his apparent recollection 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 simply 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, Marszalkowski questioned him
about his union sympathies. According to Confere’s undisputed account, on that occasion, he
and Marszalkowski were talking in the latter’s office, the subject of which meeting was not made
clear by Confere in his recitation of these facts, when, “out of the blue,” Marszalkowski asked
him what he thought about the Union. Confere 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
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conversation, Confere asked if Marszalkowski was still planning to attend Confere’s upcoming
trial as a character witness on February 28, to which Marszalkowski replied, “most 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 spokesperson and representative, Marszalkowski did not take the witness stand to
refute or deny the statements and comments attributed 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 facility if they voted to bring in a
union, and that said closure could result in a loss of jobs. The Board has long found that an
employer’s threats of plant closure and loss of jobs in response to employee efforts to unionize,
like those made here by Marszalkowski, naturally tend to have a coercive effect on employees'
exercise of their statutorily protected right to decide freely whether to become represented.
Valerie Manor, Inc. 351 NLRB No. 94, slip op. at 16 (2007); Evergreen America Corp., 348
NLRB 178 (2006); Mid-South Drywall Co., 339 NLRB 480, 481 (2003); Mohawk Industries, Inc.,
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.
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. Marszalkowski’s remark in this regard,
I am convinced, was intended to persuade employees at the Richfield facility that an alternative
to the plant closure and loss of jobs, to wit, employee 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
alleged 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 Union 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

9 Confere’s court appearance related to an alleged violation of a protective 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.
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an employee constitutes an unlawful interrogation.11 There are, however, no particular factors
"to be mechanically applied in each case." Westwood Health Care Center, 330 NLRB 935
(2000); See, also, Benjamin Franklin Plumbing, 352 NLRB No. 71, slip op. at 8 (2008) and River
Ranch Fresh Foods, 351 NLRB No. 15, slip op. at 13-14 (2007), citing to 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 employees during this same time period, and took place in Marszalkowski’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 questioning 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 Marszalkowski’s
questioning of Confere was indeed coercive, and constituted, as alleged in the complaint, an
unlawful interrogation in violation of Section 8(a)(1) of the Act.
(ii) 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 supporter
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 Thorsky to sign. He then handed some blank
authorization cards to Thorsky to distribute to other employees, and took some himself 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 Goodsell
asked what he wanted to discuss, Adkins mentioned that he had overheard or been part of a
conversation involving Marszalkowski where mention was made of rumors going around the

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., Westwood
Health Care Center, 330 NLRB 935, 939 (2000), citing to 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 conduct by B. Hartmann.
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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 Adkins, 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 rumors 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 impression 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 distributing 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 rumors 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 monitored.
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
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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 statements 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
Section 8(a)(1) of the Act.
(iii) Statements by B. Hartmann
Paragraph 12 of the complaint alleges that in or around late March, B. Hartmann
implicitly threatened employees with discharge if the Union were voted in, solicited employee
complaints and grievances, and promised them increased benefits and better terms and
conditions of employment in order to induce them into not supporting the union.
The specifics of this allegation center on comments purportedly made by B. Hartmann
during an anti-union video employees were directed to watch about one month before the
scheduled April 12, election.13 Rial Finney, a line haul driver at the Richfield 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
Finney, 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 following 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 employees 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. Hartman that employees also needed the Union
because their medical payments weren’t being paid by the Respondent. B. Hartmann informed
Finney that some 48 ft. trailers had been ordered, that these would have to be used first and
that the Company would thereafter order 53 ft. trailers. Regarding the medical payments, B.
Hartmann purportedly told him that the Company was taking out a loan with which to cover the
employees’ medical benefits. (Tr. 151-152).
Finney also recalled being directed, on two subsequent occasions, to view antiunion
propaganda films, again in Marszalkowski’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

13 Anti-union videos were apparently shown to employees at Respondent’s other facilities.
Called as a witness by Counsel for the General Counsel, Lach testified, credibly and without
contradiction, to being instructed by B. Hartmann sometime in February to show employees 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).
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talking to different employees. 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 simply answered, “Okay,” and continued loading his trailer. (Tr. 155).
Goodsell, and another line haul driver, Gerry Joseph also testified to viewing videos
similar to that shown to Finney. Goodsell 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 management being present. The second video, he recalled, was shown to
him one 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 antiunion message
played, but that B. Hartmann did address him and the other employees once the video was
over. B. Hartmann, 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 recalled 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 ten years he
had been working at the Richfield facility. (Tr. 289-290). B. Hartmann did not testify.
Accordingly, the testimony provided by Finney, Goodsell, and Joseph regarding B. Hartmann’s
presence 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 anti-union video in Marszalkowski’s
office about the loss of a jobs following 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
witness stand to refute Finney’s account, or to offer some legitimate 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 Brothers, Inc., 321 NLRB 328 (1996); Heartland of Lansing
Nursing Home, 307 NLRB 152, 158 (1992). Here, B. Hartmann’s comment to Finney was
similarly coercive and unlawful, and a violation of Section 8(a)(1) of the Act.

14 Finney displayed overt hostility to Marszalkowski during the latter’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 Respondent’s
deliberate failure to call B. Hartmann, who was present during Finney’s testimony, to deny or
refute Finney’s assertions.
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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
employees had been using, and how the employees medical benefits 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 antiunion video, that the
Respondent was trying to get the medical expenses paid. Said 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 employees 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 embarks 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 program of inquiry and correction will make collective action
unnecessary.” See, Enjo Architectural Millwork, 340 NLRB 1340, 1353 (2003), quoting from
Valley Community Services, 314 NLRB 903, 904 (1994); also, D&F Industries, Inc., 339 NLRB
618, 644 (2003).
Finney, as noted, told B. Hartmann, in response to the latter’s inquiry into why
employees needed a union, of the problems he and others were having with trailers, and with
getting their medical benefits paid, at which point B. Hartmann immediately 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, following 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
Respondent was remedying, and intended to remedy, their grievances, was coercive, and
violated Section 8(a)(1) of the Act, as alleged.
(iv) Rea’s handbilling incident
Rea, as more fully discussed and found below, was terminated 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 testimony if
this was the only instance of handbilling engaged in by him after his firing. Rea testified that in
conducting his handbilling 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.

15 GCX-14 is a photo depicting the road where Rea claims he was standing. The photo
Continued
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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 Marszalkowski using his cell phone
to make a call. Some five minutes 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
Marszalkowski called the police on Rea, but gave no explanation for why he did so.16 (RB:29).
Although not charged or arrested for his handbilling activity, Rea was nevertheless detained 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, handbillers, 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.,
_________________________
shows the Richfield facility on the left side, a fire hydrant on the grassy area off the road, and
the entrance to the Richfield 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 representative, 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 described by them, it is unclear from their testimony if what they
observed 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.
17 According to Rea, he was detained by the police based on a mistaken identity involving
his cousin who lives next door to him and whose social security number is somewhat similar to
Rea’s social security number. The matter was eventually cleared up.
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352 NLRB No. 137, slip op. at 6 (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 Respondent’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 Section 8(a)(3) conduct
(i) 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 Marszalkowski’s office and asked if he was still showing up
in court the following day. He contends, however, that Marsalkowski 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 previously received permission from
Marsalkowski to take the day off to attend the court hearing, explaining that Marsalkowski 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 directed 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 whereabouts. His first call
purportedly occurred at 5:45 a.m. Confere 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.

18 Section 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, GCX-4). Paragraph 3 of the policy, however, assures
employees that “It is not [Respondent’s] intent to unduly discipline employees for a reasonable
“excused” absence.
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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 unsure 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 witnesses 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 Confere 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 received 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.
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 individuals at the
probation office, and had no idea how long it would be. Marsalkowski purportedly replied, “you
do whatever you’ve got to do,” and slammed the phone down on Confere. 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 Marsalkowski 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 disputed by Marszalkowski, leading me to credit Confere’s version of
said 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
Marszalkowski’s office, who was there, to hand him his documents. Marsalkowski, however,
simply walked out of his office without saying a word, but returned a short while later
accompanied by driver, Bill Greenleaf. Confere recalled that on his return, Marszalkowski put
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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 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 credited.
Discussion
The complaint, as noted, alleges, and Counsel for General Counsel contends, that
Confere was discharged for his activities on behalf of, or for supporting, Local 24 in its
organizing campaign 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 said activity was a substantial or motivating
reason for the Respondent’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 engaged
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 definition 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.” Metropolitan
Transportation Services, 351 NLRB No. 43, slip op. at 4 (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
authorization card on its behalf and discussing the union with other Richfield facility employees.

19 The termination letter, received into evidence as GCX-5, appears to have been signed by
Marsalkowski, and contains Greenleaf’s signature as a witness. It gives the following
explanation for the termination:
“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 absence. 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.”
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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. Goodsell’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 animosity towards unions and their supporters.20 There are,
for example, the numerous Section 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 activities, 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 closure 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 uncontradicted 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 conversation 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 one thousand dollars. 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 union 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
sometime 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
remained non-union, including using such coercive tactics as threats, interrogations, promise of
benefits, and, in the final analysis and as shown below, the termination of union adherents.
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 testified, that Confere was
discharged allegedly for his two unexcused absences on the days he had to appear in court on
a family matter. The record does show that the Respondent maintains a written policy that two
unexcused absences by an employee results in a termination, although it is not known to what

20 The Respondent, on brief, concedes that anti-union sentiment was prevalent among
managers at the Richfield facility (RB: 2).
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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 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
contradicted 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, Marszalkowski. 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
implicitly 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 statement 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 facility that day.
In sum, I find that Confere was authorized by Marszalkowski to be absent from work on
February 28, to attend his court hearing, and that, early the following morning, March 1, Confere
called in and left word with Stamp that he had to visit his probation office that day.
Consequently, the stated reason for his discharge, having two consecutive unexcused
absences, is patently false, as Confere, as found above, was authorized to be out on the first of
the two days in question, February 28.
Nor does his absence from work on March 1, fit the definition 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
Confere did not have permission to be at the probation office on March 1. Accordingly, I find
that Confere was indeed authorized 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,
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having two consecutive unexcused absences, is clearly false and pretextual.21 The Respondent
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 violation
of Section 8(a)(3) and (1) of the Act.
(ii) Rea’s termination
Rea, as noted, was terminated on March 14, allegedly for theft, to wit, stealing two bags
of pretzels off the dock (GCX-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. Marszalkowski 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
damaged 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. Marszalkowski 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 Marszalkowski 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 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 disputed 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 testified in this regard that a

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 GCX-6, Rea’s termination letter, contains the signatures of Harmon and Mills, confirming
Rea’s account that they served as witnesses to his discharge. Mills did not testify.
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week before his termination, he retuned to the facility early in the morning after making a
delivery, 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
before 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 Marszalkowski 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 denied 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 regarding 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 Respondent’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 testimony, that Mills and Harmon, in addition of course, to Marszalkowski,
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 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 supporter, 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 surveillance, and promise of benefits, along with the unlawful
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discharge 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 showing
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. According to Rea’s credited and uncontradicted testimony,
Marszalkowski never bothered to ascertain the truth of Rea’s assertion that he had been given
permission by Stamp to take the pretzels. Stamp, it should be noted, did testify that no
“management employee” had ever given OS&D items to employees. He did not, however,
explain how he knew what other managers 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 patently clear that
Marszalkowski fired him practically on the spot without bothering to ask Rea how, where, or
when he had gotten 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 employee’s alleged misconduct before
disciplining or terminating him, or to provide the employee an opportunity to rebut the
accusation, suggests the presence of discriminatory motivation. Aljoma Lumber, Inc., 345
NLRB 261, 285 (2005); Pratt Towers, Inc., 338 NLRB 61, 97 (2002); Traction Wholesale
Center. 328 NLRB 1058, 1072 (1999). Here, the Respondent’s discharge of Rea, purportedly
for “theft of a customer’s property,” (RB:8), to wit, a bag of pretzels, was clearly pretextual as
Rea’s credited and undisputed testimony unmistakably 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 Respondent having failed to provide a legitimate,
nondiscriminatory reason for terminating Rea, I find that Counsel for the General Counsel’s
prima facie case remains intact, and that Rea’s discharge on March 14, was due solely to his
activities on behalf of Local 24. Accordingly, I find, as alleged in the complaint, that Rea’s
discharge violated Section 8(a)(3) and (1) of the Act.
(iii) 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 GCX-7, states his discharge 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, presumably where drivers congregate, and, while there, noticed on
the board used to record problems with tractors and trailers, that the truck he regularly drove
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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. Marszalkowski 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 loading it. Marszalkowski
returned a few minutes later and told Goodsell he wanted to speak with him in the office, and
also 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.
Marszalkowski 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 Marszalkowski, King, who did not testify, noticed the damage on the truck
while doing a pre-trip 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 pre-trip 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
Marszalkowski. Marsalkowski was unsure when the damage to the truck occurred, but was of
the view it occurred sometime during 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 Adkins, who, in turn, called
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Marszalkowski. Marszalkowski informed Adkins that Goodsell would first have to sign his
termination 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 recalled that sometime after
his termination, he had a conversation 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
explained 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 being 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
four month period from September 2006 to mid-January 2007, and to knowing of others who
likewise did not do so, without consequence.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

23 He explained that he began filling out the vehicle inspection reports 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.
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separate log was also maintained in the drivers’ room. Oftentimes, he contended, he, as well as
other drivers, would make their vehicle inspection report entries in the drivers’ room log book.
He was never disciplined for doing so, nor, to his knowledge, was any other driver.
The complaint alleges that Goodsell’s termination was motivated by antiunion
considerations and, thus, unlawful. Goodsell, 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 supported, and was active on behalf of, Local 24. Evidence
of Respondent’s antiunion animus was fully discussed in connection 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 motivated by antiunion reasons.
The Respondent’s claim, that Goodsell was lawfully terminated 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 damaged or who might have done so.
His hearsay testimony reflects 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 Goodsell 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 assumed,
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 damaged 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 before 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. Marszalkowski’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 Marszalkowski, as he did with Confere and Rea, simply used this as one of
various excuses to rid himself of another Local 24 adherent.
Goodsell’s alleged falsification of the vehicle inspection report 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 including something therein that he knew or had reason to believe not to be true. Goodsell’s
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failure to record the damage in the vehicle’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 Goodsell, 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 terminate Goodsell, in part, for this alleged infraction. This unexplained 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 additional 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 No. 396.11 requires 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 operation of the
vehicle or result in its mechanical breakdown.” The regulation does not list a “quarter fender,”
often 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 referred to in
the regulation that would affect the safety operation of the vehicle itself or lead to a mechanical
breakdown. Respondent’s own Director of Safety and Security/Risk Management, 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 inspection report violated DOT regulation 396.11
is simply not supported by a plain reading of the rule in question, and, moreover, is contradicted
by Respondent’s own Safety director, Ferenczi.

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 accessories of the vehicle: Service brakes
including trailer brake connections; 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 further 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 mechanical breakdown. If no defect or
deficiency is discovered by or reported to the driver, the report shall so indicate.”
26 Ferenczi testified that such a provision can be found in Ohio’s DOT regulations, but not in
the Indiana’s DOT regulations. No documentary evidence, such as a copy of the Ohio DOT
regulation, or a citation to where said State regulation can be found, was produced.
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Thus, like the other reasons cited for his discharge, Goodsell’s failure to record the
damaged quarter fender in the vehicle inspection report amounts to nothing more than a pretext
designed to cover up the true reason for his Goodsell’s termination, to wit, his Union activity.
Accordingly, I find that the Respondent has failed to rebut Counsel for the General Counsel’s
prima facie showing that Goodsell was terminated for his Union activity, and that Goodsell’s
discharge was, consequently, unlawful and a violation of Section 8(a)(3) and (1) of the Act. .
2. The Toledo facility
a. The alleged Section 8(a)(1) conduct
Paragraph 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 sympathies
or activities, and created the impression that employee union activity was being kept under
surveillance. Alleged discriminatees 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 hearing.
J. Ulch worked as a second shift dockworker at the Toledo facility from January 2005
until terminated on March 21, allegedly for “unsafe forklift operation.” (Tr. 61; GCX-8). He first
began discussing the need for a union with other employees 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 September 2006, as he and employee Jason Peck were openly discussing the
union near the dispatch office, supervisor Gruic cautioned 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 similar conduct. (Tr. 448). J. Ulch also testified to another
incident that occurred around Labor Day 2006, in former Toledo District Manager Lach’s office.
He recalled being in Lach’s office to turn in a doctor’s note justifying his two-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 email from Gruic
stating that J. Ulch had been seen at a football game on the two 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 questioning 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 testified, 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

27 J Ulch’s description and characterization of Ulrich as OS&D supervisor was not
challenged or denied by the Respondent. Accordingly, I find Ulrich was, at all times relevant
Continued
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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, presumably referring to the Saturday Union
meeting. J. Ulch replied 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, “good luck with Paul Whitman.”
Ulrich also asked if any of the truck drivers had joined the Union. It is unclear from his
testimony if J. Ulch responded to this latter question. (Tr. 462-463). Ulrich did not testify.
Accordingly, J. Ulch’s uncontested 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
truck drivers, 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
numbered 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, GCX-10). He
testified 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 two months later, around
Thanksgiving time 2006, he spoke with Lee in the dispatch 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 reflects that Wilson signed an authorization
card on Local 20’s behalf on March 17, just days before being discharged. (GCX-19).
_________________________
herein, a statutory supervisor as defined by Section 2(11) of the Act.
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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 one 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 LaSalle facility from Richfield facility
driver, Rial Finney. Finney, he recalled, told him when the organizing activity at LaSalle 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 conversation with Finney.
Lee recalled having three more brief conversations with Finney. 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 medical bills. Gruic, Lee recalled, told him he had been told of this
by Marszalkowski at a meeting in the break room. 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 Respondent’s Columbus and Cincinnati, Ohio facilities. Lee claims that on
learning about the promises being made to employees, he spoke with one Mr. Ward, the
Cincinnati facility manager, who confirmed that such a meeting took place with Marszalkowski
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 break room 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 employees in the past had been terminated for discussing union matters, and
that, consequently, employees should avoid engaging 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
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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 convince
other employees to attend the meeting. The next conversation, Lee contends, occurred right
before J. Ulch was terminated, 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 occurred 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, described 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 lunchroom. 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 support 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 attendance 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 Respondent 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 pro-union activity after being directed by Baker back then to do so.
29 The Respondent, on brief, contends that it should not be found liable 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, although 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,
Marszalkowski 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 plant closure, loss of jobs, and discharge for engaging in union
activity. Indeed, like Lee, Marszalkowski, as noted, unlawfully questioned Confere 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
Continued
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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 violations 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 Counsel, as noted, moved, without objection,
to conform her pleadings 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 paragraph 13 (a) and (b). Thus, both Ulrich’s and
Bateson’s interrogations 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 interrogation 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 paragraph 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
creating an impression of surveillance in order to undermine employee support for the Union.
Further, the Respondent’s defense to these additional allegations would be no different than
what would be required of it to defend against the Section 8(a)(1) allegation involving Lee.
Accordingly, I find the allegations involving Ulrich and Bateson are not “time-barred,” and
conclude, 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 surveillance. In so doing, the
Respondent, through Ulrich and Bateson, further violated Section 8(a)(1) of the Act.
_________________________
to apply, to other managers or supervisors like Marszalkowski, B. Hartmann, and Adkins, or
they were simply ignored with the Respondent’s tacit approval. While I doubt, given the similar
unlawful conduct engaged 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 Section 10(b) of the Act provides in pertinent part that “no complaint shall issue based upon
any unfair labor practice occurring more than six 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 Section 10(b) of the Act to be litigated if they are legally and
factually closely related” to allegations of a prior timely filed charge. The Carney Hospital, 350
NLRB No. 56 (2007), citing Redd-I, Inc., 290 NLRB 1115 (1998). Under Redd-I, as clarified in
The Carney Hospital, supra, the Board considers 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. The Earthgrains Co., 351 NLRB No. 45 (2007).
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b. The Section 8(a)(3) conduct
(i) 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 pm 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 maneuver 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 loading 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 approached 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 particular 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, Marszalkowski 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,
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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 returned 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 present – J. Ulch, M. Ulch,
Wilson, and another individual not identified by Marszalkowski, but presumably Whitaker.
Marszalkowski testified that he decided to discharge J. Ulch after purportedly witnessing J. Ulch
operating the forklift in an unsafe 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 putting on a show for him. Asked if J. Ulch was discharged for
reasons other than his “unsafe forklift operation,” Marszalkowski 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 equipment, 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 considerations.
J. Ulch, as previously discussed, was an active Local 20 supporter prior to his discharge, having
attended union meetings, 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 attendance 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 attended the meeting or the level of support
enjoyed by the Union. Further, J. Ulch credibly testified to being told by Lee that Dotson and
Gruic had overheard him, J. Ulch, talking to employees 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 discussed above in
connection with the discharges of Confere, Rea, and Goodson, there is substantial record

31 J. Ulch’s termination notice was, as noted, received into evidence as GCX-8.
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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 terminated 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
inadvertently 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
condition of the dock plates.
The question that needs answering is whether this inadvertent 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 definition of, or what constitutes, a “safe/unsafe forklift
operation.” (RB: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 demonstrate by a preponderance of credible evidence, that its discharge of J. Ulch was done
for reasons unrelated to his union activity. Thus, it was incumbent on the Respondent, not
Counsel 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.” (RB: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. Accordingly, I find that the Respondent has not rebutted Counsel
for the General Counsel’s prima facie case, and that J. Ulch’s termination was unlawful and a
violation of Section 8(a)(3) and (1) of the Act.33

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 endanger
yourself, another person, or company property or equipment.” (See RX-19). RX-19 provides
that engaging in such behavior may subject an employee to “disciplinary action within our work
environment, up to and including suspension/termination.”
33 Other factors point to the alleged “safety violation” defense as nothing more than a
pretext. Thus, while not mentioned in the termination letter as a reason for the discharge,
Marszalkowski in his testimony, 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
Continued
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(ii) 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 scheduled 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 approached 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 Marszalkowski 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
Marszalkowski 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 activity. On leaving the lunchroom, Wilson went to
the timeclock to punch in, and, soon thereafter, was approached by Marszalkowski 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 GCX-10, listing “substandard” performance as the reason for the discharge.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 termination
_________________________
than a post hoc attempt by Marszalkowski to beef up his rather weak explanation for terminating
J. Ulch, rendering it pretextual. Aljoma Lumber, Inc., 345 NLRB No. 19 (2005). Further, J. Ulch,
as noted, testified, credibly and without contradiction, to being told by Dotson, as the latter was
escorting him out of Marszalkowski’s office immediately following the termination, that the
decision to fire him had come from higher up, suggesting implicitly that the decision to terminate
may have been arrived at even before the alleged “tire spinning” incident had occurred. Finally,
it is worth noting that, in addition to firing J. Ulch, Marszalkowski also fired M. Ulch and Wilson
the same day for, as discussed 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 supporters on the same day, shortly after their attendance
at a Union meeting and after being subjected to coercive interrogations by their supervisors,
was, I am convinced, no mere coincidence, but rather part of the Respondent’s plan to defeat
any attempt to unionize the facility.
34 GCX-10 goes on to describe Wilson’s substandard performance as consisting of “multiple
occasions of improper loading, damaging company property, unexcused absences, and
excessive absenteeism,” which “offenses,” the letter further avers, “are documented in Mr.
Wilson’s personnel file.”
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letter. He did not deny any of the assertions made by Wilson regarding the events preceding
the discharge, or the statements attributed to him by Wilson, including the latter’s claim that
Marszalkowski declined, without explanation, to give him 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
authorization card just two days before being discharged. He credible, and without
contradiction, testified to being questioned by Lee about his attendance at the Union meeting a
few days before his termination, and to telling Lee how the meeting had gone. Clearly, from this
conversation, and from Wilson’s admission to Lee several months earlier around August 2006,
that he favored having a union, Lee would have known of Wilson’s pro-union sympathies.
Wilson also revealed his union sympathies to Lach when, in early March, he complained about
being asked to watch an anti-union video which he viewed as slanderous 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
Counsel 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 various infractions or violations of Company rules committed by an
employee. (RX-17). This particular form lists all infractions or violations purportedly committed
by Wilson during a 20-month period beginning “7/19/05” to “3/21/07.” Among the infractions
listed in RX-17 are “improper loading,” “damaging freight,” “taking extended lunch break,”
“sexual harassment” and related allegation, “failure to count freight,” “accidents/crashes,” and
excessive absenteeism. Shown RX-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. Managers have some latitude in determining
how many letters of instructions 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 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 employee. It points to three separate warnings purportedly issued to Wilson
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wherein he is cautioned that further similar infractions could lead to his suspension and/or
termination. 35 It is true that, as shown in RX-17, Wilson had a history dating from July 19, 2005
to March 8, 2007,36 of committing 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
obviously allowed him to continue working following the warning issued to him two 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 warning 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 interrogation 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 “Any 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 infraction of this kind might very well result in his termination. As 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 March 21. Similarly, in the two warnings
referenced by the Respondent in its brief, RX-16 issued 12/29/06, and RX-18 issued 1/20/07,
the Respondent again warned that future “improper loading” infractions might result in a
suspension and/or termination. There is no evidence that, during the three-month period
between the 1/20/07 warning issued to him and his termination, Wilson committed any other
“improper loading” infraction.
As to his absenteeism infractions, RX-17, the employee discussion form, shows only that
Wilson was issued a warning letter on 3/1/07 for excessive absenteeism. It also contains a
notation showing that, on 2/27/07, Wilson had an unexcused absence for calling in one hour
before the start of his shift, but does not reflect if he was issued a letter of instruction or a
warning for this incident. In essence, therefore, all RX-17 shows regarding Wilson’s alleged
absenteeism problem is that, from 7/19/05 to 3/21/07, a period of some 20 months, Wilson only
received one warning on 3/1/07, for excessive absenteeism. The 3/1/07 warning letter was not
produced by the Respondent. Thus, it is not known if, under Respondent’s progressive
disciplinary system, the 3/1/07 warning was intended as a first, or final, warning letter. It is

35 See, RX-16, RX-18, and GCX-34. RX-16 is a warning issued to Wilson on 12/29/06 more
than three months before his discharge for “misloaded freight.” RX-18 is a warning issued to
him on 1/20/07, again for “misloading freight.” GCX-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. GCX-34, therefore, has no relevance to Wilson’s discharge.
36 The next-to-last entry on RX-17 shows a notation of a “warning letter” purportedly having
been issued to Wilson on “3/8/07,” Wilson 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 GCX-22).
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nevertheless patently clear from Respondent’s own documentary evidence, to wit, RX-17, that
Wilson’s, at most two days of absences, on 2/27 and again on 3/21, 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 defined “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 two 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, two missed days of work, it is highly unlikely that the
Respondent was following its progressive disciplinary policy when it discharged 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 3/21. 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 in his termination. As to the former, the Respondent’s own
documentary evidence fails to show that Wilson had an “absenteeism” problem, or that he ever
received the requisite cautions and/or warnings called for by Respondent’s progressive
disciplinary prior to being terminated. As to the “improper loading” infractions, the most recent
one issued to him prior to his discharge, 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 non-existent 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 regarding his
attendance at that meeting a day or so before the termination. 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 activities on behalf of Local 20, and thus
violated Section 8(a)(3) and (1) of the Act.
(iii) Merle Ulch’s termination
M. Ulch worked as a dock worker 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.” (GCX-9; Tr. 67).37

37 Marszalkowski identified GCX-9 as M. Ulch’s termination letter. 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
Continued
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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, one week before being
discharged, he contacted Local 20 on his own and spoke with Local 20 organizer, Norm
Lewallen, about obtaining representation 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 Respondent 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 experiencing a burning in his eyes, a sore throat, an upset
stomach, and drowsiness presumably due to the acid fumes and his proximity 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,
_________________________
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 work
place 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 services 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
termination, 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 GCX-9, for Marszalkowski never claimed to have done so.
The document does contain what appears to be the signature of a supervisor. Marszalkowski,
however, was unable to identify who the signature belonged 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
prepared. Marszalkowski, it should be noted, never claimed to have given, shown, or read the
contents of the termination letter to M. Ulch when discharging him on March 21. (Tr. 66).
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which he handed to Lach. (GCX-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 write-up would be rescinded. According to
M. Ulch, he was never disciplined 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. Wilson, 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 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 ten minutes later, the fire department arrived, explaining 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 somebody.” 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 everybody 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 permission to leave work early. Gruic made no mention in
his testimony 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 manager 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 following 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 employees. 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
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Respondent, that if an employee already at the facility reports being sick either before beginning
a work assignment or after completing 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 justified. 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 write-up prepared by Gruic, nor, for that
matter, was Griec asked if he had prepared any such write-up 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 apparently in the process of being cleaned up when he arrived. Later that
evening, Lee saw M. Ulch enter the break room 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 writing 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 reflecting 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. Although 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 testimony. 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
otherwise threatened Gruic by pointing his finger at Gruic and telling 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 seeing 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 twenty minutes later, Marszalkowski approached him, told
him to shut down his equipment, and to follow him to Marszalkowski’s office. Once there,
Marsazlkowski remarked, “You probably know what this is,” referring to M. Ulch’s termination, 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 discharge meeting, I credit M. Ulch’s account and find
Marszalkowski simply told him, in response to his query on why he was being fired, that
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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 meeting.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
motivated 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 authorization 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
workplace 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
Several factors point to Marszalkowski’s explanation as being 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 Marszalkowski 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 “If 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 Marszalkowski. Third and
foremost, M. Ulch, as found above, credibly denied threatening Gruic, either as described by the

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 preferred discussing the operations of
the Toledo facility with Marszalkowski 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 facility, and Marszalkowski’s statement to M. Ulch that he was being
let go because he was no longer needed, leads me to question whether Marszalkowski was
even aware of the March 8, incident when he discharged M. Ulch on March 21.
39 A review of his answer to Counsel for the General Counsel’s question on whether this
was the only reason for the termination shows Marszalkowski responding, “Correct. That’s why
Mr. Lach was terminated.” (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 the reasons for M.
Ulch’s, not Lach’s, termination, and that the question 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.
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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 discharged
for “leaving the workplace without permission,” referencing in support thereof GCX-9, the
termination letter. (RB:11). Again, there are several problems 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 inconsistent explanations proffered by the Respondent and by Marszalkowski for M.
Ulch’s termination strongly support an inference that they are pretextual in nature and not the
true reason for his discharge. Roosevelt Memorial Medical Center, 348 NLRB No. 64, slip op.
at 15 (2006); GATX Logistics, Inc., 323 NLRB 328, 335 (1997). Second, and as previously
discussed (see footnote 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 departure 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 prepared it, or when it was prepared.
Incredulously, Marszarlkowski, who terminated M. Ulch, never identified who prepared the
document, when it was prepared, or whose signature appears as supervisor on the letter. As
noted, M. Ulch credibly testified that GCX-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 let go
because of his alleged “Violence in the workplace.” The various inconsistencies and
discrepancies surrounding GCX-9, along with its rather dubious and unexplained origin, render
it of little or no value on the question 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 assignment were generally not penalized for leaving work early. Lach
opined, based on his knowledge of what occurred, including 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 two 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 leaving work early on March 8,
nor his alleged insubordinate behavior towards Gruic that day, which I have already found did
not occur, were factors in M. Ulch’s termination. As the Respondent 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, discriminatorily motivated by his union activities and, consequently, a
violation of Section 8(a)(3) and (1) of the Act.
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Conclusions of Law
1. The Respondent, Mid-States Express, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), and (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 organizations 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,
coercively 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 supporting 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 Confere, Justin Rea, and David
Goodsell for their activities on behalf 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 commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
To remedy its unlawful discharge of employees Shawn Confere, 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
discharge 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
thereafter, 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 appropriate notice to employees.40

40 I find it unnecessary to require the Respondent, as requested by Counsel for the General
Continued
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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 exercise 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 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 employee 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 International 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 effectuate 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
discrimination against them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
_________________________
Counsel on brief, to post the notice at all of the Respondent’s facilities, not just at its Richfield
and Toledo, Ohio facilities. 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 employees 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 recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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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 additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
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 facilities 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 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since 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.
Dated, Washington, D.C. September 19, 2008
____________________
George Alemán
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD-49-08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT interfere, restrain, or coerce you in the exercise of your above-described rights
by threatening to close our facilities 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
surveillance, solicit your grievances and promise to remedy them, or promise you increased
benefits, to dissuade you from supporting 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 Teamsters, Local No. 20, or Freight Drivers, Dockworkers and
Helpers 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, restrain, 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.
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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 thereafter, 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.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Federal Building, Room 1695
Cleveland, Ohio 44199-2086
Hours: 8:15 a.m. to 4:45 p.m.
216-522-3716.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 216-522-3723.
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