Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board Decisions

Aug 24, 2018

366 NLRB No. 173 (N.L.R.B. 2018)

366 NLRB No. 173
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ozburn-Hessey Logistics, LLC and United Steel, Pa-
per and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers
a/k/a United Steel Workers Union. Case 15–CA–
165554
August 24, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
On September 22, 2016, Administrative Law Judge Ira
Sandron issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.3
In the absence of exceptions, we adopt the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally changing its attendance
policy in October 2013 without affording the Union no-
tice or the opportunity to bargain. For the reasons ex-
plained below, however, we reverse the judge and find
that the Respondent’s subsequent unilateral change to the
new October 2013 policy, and its discharge of employee
Jermaine Brown pursuant to that additional change, also
violated Section 8(a)(5) and (1).

1 We find no merit in the General Counsel’s exception to the judge’s
denial of his motion to amend the complaint to allege that the Respond-
ent unlawfully changed the attendance policy for probationary employ-
ees.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We have amended the judge’s conclusions of law and remedy con-
sistent with our findings herein. We shall modify the judge’s recom-
mended Order to conform to our findings and to the Board’s standard
remedial language, and we shall substitute a new notice to conform to
the Order as modified.
The “2-Hour Rule” and the Discharge of
Jermaine Brown
A. Background
At all relevant times, the Respondent’s attendance pol-
icies provided that employees received “points” for vari-
ous attendance infractions and that employees accruing
13 points in any 52-week period would be subject to dis-
charge. In mid-October 2013, the Respondent unilateral-
ly implemented a new attendance policy without provid-
ing the Union notice and an opportunity to bargain.4 The
new policy was more lenient than the prior one in its
treatment of employees who left work early. Under the
prior policy, employees who left work early would re-
ceive three points for each infraction; under the new pol-
icy, they would receive only one point. The Respondent
announced the new policy in meetings in October 2013
and disseminated it in writing (hereinafter “new written
policy”) at the same time.
At some time after October 2013, the Respondent uni-
laterally modified its new written policy so that employ-
ees who left work before they had worked 2 hours would
receive two attendance points instead of one (the modifi-
cation is referred to by the judge as the “2-hour rule”).5
The 2-hour rule was not incorporated into the Respond-
ent’s new written policy, nor did the Respondent notify
employees contemporaneously about the change.6 On
September 3, 2014, Regional Human Resources Manager
Lisa Johnson sent an email to other managers stating that
they “MUST also make it clear” to employees the num-
ber of points they would be assessed for leaving early.
She stated, “If the employee works for at least 2 hours,
then the employee will receive 1 point for leaving early.
If the employee leaves before working a full 2 hours,
then the employee will receive 2 points.” There is no
evidence that this message was communicated to em-
ployees at that time, either by Johnson or by other man-
agers in response to her email.

4 The events of this case occurred at a time when the Respondent
was challenging the certification of the Union as the bargaining repre-
sentative of the unit of the Respondent’s employees at issue here. See
Ozburn-Hessey Logistics, LLC, 362 NLRB No. 118 (2015), enfd. 833
F.3d 210 (D.C. Cir. 2016).
5 The judge did not make a finding as to when the rule was imple-
mented and announced to employees, except that it occurred after Oc-
tober 2013. On exceptions, the General Counsel asserts that the judge
erred in failing to find that the “2-hour rule” was unilaterally imple-
mented at the same time as the rest of the October 2013 policy changes
but was not communicated to employees until much later. Based on his
credibility determinations, however, the judge expressly rejected this
view of the evidence and found that the 2-hour rule was a subsequent
unilateral change. Because we find no basis to overrule his credibility
determinations, we rely on his factual findings herein.
6 As of the date of the hearing, the change had still not been incor-
porated into the new written policy.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On October 15, 2014, employee Jermaine Brown re-
ceived a written attendance warning that included four
points for leaving early on July 28 and October 10, 2014.
Brown protested that he should have received only one
point for each time he left early, per the new written pol-
icy. He raised this issue with the Respondent’s Director
of Operations Chris Brawley. In November 2014, Braw-
ley informed employees in a meeting that, to receive just
one point for leaving early, they had to work at least 2
hours. If they left before that, they would receive two
points. Several employees told him that was “not right”
because, under the new written policy, employees leav-
ing early were to accrue only one point.
On July 1, 2015, after arriving late to work, Brown
was discharged for having 13 total attendance points,
including the 4 points that he received for leaving early
on July 28 and October 10, 2014.
The General Counsel alleged in the complaint that
“[a]bout October 1, 2013, Respondent, for attendance
violations . . . changed the number of attendance points
charged; and . . . changed the circumstances under which
attendance points are charged” without giving the Union
notice and an opportunity to bargain, in violation of Sec-
tion 8(a)(5) and (1). The General Counsel further alleged
that these changes resulted in Brown’s discharge, also
violating Section 8(a)(5) and (1).
B. Discussion
The judge found that the October 2013 new written
policy change violated Section 8(a)(5) and (1), but dis-
missed the unlawful discharge allegation. He found that
the 2-hour rule applied to Brown was implemented after
October 2013 and therefore amounted to a second inde-
pendent change to the Respondent’s attendance policy.
However, the judge found that, because the General
Counsel had failed to allege specifically that the Re-
spondent had unlawfully made a second change to the
policy, any determination regarding the legality of
Brown’s discharge had to be based on “the policy before
and after the mid-October 2013 change, not whether any
later unilateral modifications of that change worked to
[Brown’s] detriment.”
The General Counsel has excepted to the judge’s find-
ing, and we find merit in the exception. To begin, we
disagree with the judge’s conclusion that the legality of
the Respondent’s unilateral implementation of the 2-hour
rule could not be reached because it was not specifically
alleged in the complaint. Applying Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130
(2d Cir. 1990), we find no infringement of the Respond-
ent’s due process rights in holding that the implementa-
tion of the 2-hour rule and its application to Brown were
unlawful. It is well established that “the Board may find
and remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” Id. (citations omitted). Both crite-
ria are met here.
First, it is apparent that the 2-hour rule is closely con-
nected to the subject matter of the complaint and arises
from the same set of facts as the October 2013 written
policy change. Second, the Respondent’s announcement
and implementation of the 2-hour rule and its application
to Brown were fully and fairly litigated at the hearing.
Indeed, the Respondent knew that those issues would be
litigated well in advance. On March 1, 2016, 3 months
before the hearing, the General Counsel informed coun-
sel for the Respondent by email that the unilateral change
at issue was the change to the attendance policy in Octo-
ber 2013, “including the later decision to assess two at-
tendance points to employees who leave work within the
first two hours of the employees’ shift.” He further stat-
ed that, if there was a hearing, “the General Counsel
would argue that all employees who were disciplined or
discharged pursuant to the unilaterally implemented at-
tendance policy, most specifically those employees who
were assessed two points for leaving early within the first
two hours of a shift” would be entitled to have such dis-
cipline or discharges rescinded.7
At the hearing, Human Resources Director Shannon
Miles and Regional Human Resources Manager Johnson,
who were both involved in the rollout of the October
2013 attendance policy, testified about the implementa-
tion and timing of the 2-hour rule. Miles testified that it
was her decision to implement it. Two Directors of Op-
erations also testified about the 2-hour rule. In addition,
Director of Operations Brawley and Johnson, who dis-
charged Brown, testified about the rule and its applica-
tion to Brown. The Respondent also had the opportunity
to cross-examine the General Counsel’s witnesses about
the rollout of the attendance policy, including the 2-hour
rule. In light of this testimony and the Respondent’s
communications with the General Counsel, there is no
indication that the Respondent would have altered its
litigation strategy had the 2-hour rule been specifically
identified in the complaint.
As to the merits, the Respondent does not dispute that
it unilaterally implemented the 2-hour rule without
providing the Union notice or an opportunity to bargain
and admits that it discharged Brown pursuant to that rule.
Accordingly, we find that the Respondent violated Sec-

7 The judge initially rejected the exhibit containing the above email
exchange but later relied on it when noting that the General Counsel
informed the Respondent that the change in attendance points for leav-
ing early was an issue to be litigated.
OZBURN-HESSEY LOGISTICS, LLC 3
tion 8(a)(5) and (1) by unilaterally announcing and im-
plementing the 2-hour rule, and that it further violated
the Act by discharging Brown in reliance on that unlaw-
ful rule.8
AMENDED CONCLUSIONS OF LAW
Substitute the following paragraph for Conclusion of
Law 3:
“3. By the following conduct, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(5) and (1) of the Act:
(a) Unilaterally announcing and implementing chang-
es in the number of points assessed for employees leav-
ing work early without first having afforded the Union
notice and an opportunity to bargain.
(b) Discharging Jermaine Brown on July 1, 2015, pur-
suant to its unlawful unilateral changes to the number of
attendance points assessed for employees leaving work
early.”
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by discharging Jermaine Brown pursuant to unlawful
unilateral changes to the number of attendance points
assessed for employees leaving work early, we shall or-
der it to offer him full reinstatement to his former job, or
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits. The
Respondent will also be required to remove from its files
any reference to Brown’s unlawful termination, and to

8 We recognize the seeming inconsistency in finding that Brown
was unlawfully discharged because he acted in reliance on one unlaw-
ful change (the new written policy) that benefitted him but was dis-
charged pursuant to a later unlawful change (the 2-hour rule) that did
not. However, this is a dilemma of the Respondent’s own making.
Having unlawfully implemented the new written policy in October
2013, the Respondent in effect created a new status quo, upon which
Brown understandably relied. The Respondent acted at its own peril in
creating the new written policy; therefore, it cannot rely on the pre-
October 2013 attendance policy to assert that Brown would have been
discharged even in the absence of the Respondent’s unlawful imple-
mentation of the 2-hour rule. Furthermore, “the focus of the analysis of
a discharge alleged to constitute a refusal to bargain in violation of
Sec[.] 8(a)(5) must be on the injury to the union’s status as bargaining
representative.” Great Western Produce, 299 NLRB 1004, 1005
(1990), overruled on other grounds by Anheuser-Busch, Inc., 351
NLRB 644 (2007). That status is harmed each time an unlawfully
changed term or condition of employment is applied. Id.
notify him in writing that this has been done and that the
termination will not be used against him in any way.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). As set forth
in AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), the Respondent will also be required to compen-
sate Brown for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and to file with the
Regional Director for Region 15, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar years. In addition, pursuant to
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in
rel. part 859 F.3d 23 (D.C. Cir. 2017), the Respondent
shall further compensate Brown for his search-for-work
and interim employment expenses regardless of whether
those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, above, compounded
daily as prescribed in Kentucky River Medical Center,
above.
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC,
Memphis, Tennessee, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers a/k/a United Steel
Workers Union (the Union) and giving it an opportunity
to bargain.
(b) Discharging or otherwise disciplining employees
based on unlawful unilateral changes made to the terms
and conditions of employment of the unit employees.
(c) In any like or related manner interfering with, re-
straining, 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) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive bargaining representative of employees
in the following bargaining unit:
All full-time custodians, customer service representa-
tives, senior customer service representatives, cycle
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counters, inventory specialists, maintenance, mainte-
nance techs, material handlers, operators 1, operators 2,
operators 3, quality assurance coordinators, returns
clerks, and team leads employed at [its six Memphis,
Tennessee facilities]; excluding all other employees,
including office clerical and professional employees,
guards, and supervisors as defined in the Act.
(b) Upon the Union’s request, rescind the unlawful
changes to the number of attendance points assessed for
employees leaving work early.
(c) Within 14 days from the date of this Order, offer
Jermaine Brown full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Jermaine Brown whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral changes, in the manner set forth in the
amended remedy section of this decision.
(e) Compensate Jermaine Brown for the adverse tax
consequences, if any, of receiving a lump sum backpay
award, and file with the Regional Director for Region 15,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter, notify Jermaine Brown in
writing that this has been done and that the discharge will
not be used against him in any way.
(g) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facilities in Memphis, Tennessee, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
15, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since October 14, 2013.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 24, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
OZBURN-HESSEY LOGISTICS, LLC 5
Choose not to engage in any of these protected
activities.
WE WILL NOT change your terms and conditions of
employment without first notifying United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers a/k/a United Steel Work-
ers Union (the Union) and giving it an opportunity to
bargain.
WE WILL NOT discharge or otherwise discipline any of
you based on unlawful unilateral changes made to your
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full-time custodians, customer service representa-
tives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, mainte-
nance techs, material handlers, operators 1, operators 2,
operators 3, quality assurance coordinators, returns
clerks, and team leads employed at [its six Memphis,
Tennessee facilities]; excluding all other employees,
including office clerical and professional employees,
guards, and supervisors as defined in the Act.
WE WILL, upon the Union’s request, rescind the unlaw-
ful changes to the number of attendance points that you
are assessed for leaving work early.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jermaine Brown full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Jermaine Brown whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make him whole for reasonable search-for-work and
interim employment expenses, plus interest.
WE WILL compensate Jermaine Brown for the adverse
tax consequences, if any, of receiving a lump sum back-
pay award, and WE WILL file with the Regional Director
for Region 15, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
OZBURN-HESSEY LOGISTICS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15-CA-165554 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
William T. Hearne, Esq., for the General Counsel.
Ben H. Bodzy and Stephen D. Goodwin, Esqs. (Baker, Donel-
son, Bearman, Caldwell & Berkowitz, PC), for the Re-
spondent.
Benjamin Brandon, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. The complaint
arises from unfair labor practice (ULP) charges that United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers a/k/a United Steel Work-
ers Union (the Union) filed against Ozburn-Hessey Logistics,
LLC (the Respondent), alleging violations of Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) at the
Respondent’s Memphis, Tennessee facilities.
Pursuant to notice, I conducted a trial in Memphis, Tennes-
see, on July 6 and 7, 2016, at which the parties had full oppor-
tunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. The General Counsel and the Re-
spondent filed helpful posthearing briefs that I have duly con-
sidered.
Issues
1. Did the Respondent in mid-October 2013, following an
election but prior to the Union’s certification, violate Section
8(a)(5) and (1) by admittedly unilaterally announcing and im-
plementing a change in the number of attendance points as-
sessed for employees leaving work early?
2. Should the General Counsel be permitted to amend the
complaint to add the allegation that in mid-October 2013, the
Respondent announced and implemented another undisputed
unilateral change in attendance policy, i.e., reducing the num-
ber of points required to discharge probationary employees?
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Was Jermaine Brown discharged on July 1, 2015, because
the Respondent relied on attendance points that he received as
a result of the unilateral change in assessing leave early
points?
The General Counsel does not dispute that Brown committed
the attendance violations for which he was assessed points, or
contend that his discharge was due to any protected activity on
his part or the result of disparate treatment for an improper
motive. The Respondent’s sole basis for the discharge was his
attendance record
Witnesses and Credibility
Witness titles are given as of the relevant time period.
The General Counsel’s witnesses included Brown; Benjamin
Brandon, international organizer for the Union; and Troy
Hughlett, a current employee with whom Brown worked on the
Fiskars F.A.S.T. Gerber Legendary Blades (Fiskars) account in
the building located at 5510 East Holmes Road (the 5510 build-
ing).
The Respondent called Shannon Miles, senior manager of
human resources (HR) for the southern region, including the
Memphis facilities; Lisa Johnson, regional HR manager for the
Memphis facilities; Kenneth (Chris) Brawley and Kyle Perkins,
directors of operations for the 5510 building at different times;
and Verdia Jones, Brown’s supervisor. The Respondent also
called Brandon and Richard Rouco, the Union’s attorney, as
adverse witnesses under Section 611(c).1
At the outset, I note the well-established precept that a wit-
ness may be found partially credible; the mere fact that the
witness is discredited on one point does not automatically mean
that he or she must be discredited in all respects. Golden Hours
Convalescent Hospitals, 182 NLRB 796, 799 (1970). Rather, a
witness’ testimony is appropriately weighed with the evidence
as a whole and evaluated for plausibility. Id. at 798–799; see
also MEMC Electronic Materials, 342 NLRB 1172, 1183 fn. 13
(2004), quoting Americare Pine Lodge Nursing, 325 NLRB 98,
98 fn. 1 (1997), enf. granted in part, denied in part, 164 F.3d
867 (4th Cir. 1999); Excel Container, 325 NLRB 17, 17 fn. 1
(1997). As Chief Judge Learned Hand stated in NLRB v. Uni-
versal Camera Corp., 179 F.2d 749, 754 (2nd Cir. 1950), re-
garding witness testimony, “[N]othing is more common in all
kinds of judicial decisions than to believe some and not all.”
Credibility in this case is germane to the issue of whether the
Respondent, after mid-October 2013, further changed the at-
tendance policy in the assessment of points for leaving early.
More specifically, witnesses of the Respondent averred that in
mid-October 2013, when Johnson distributed written changes
to the attendance policy that included changing 3 attendance
points for leaving early to one point, she orally stated that
henceforth leaving early up to 2 hours into the shift would re-
sult in two points, and after 2 hours would result in one point.
To the contrary, Brown and Hughlett testified that they first
learned of this “2-hour rule” in 2014.
Regardless, the General Counsel does not allege any changes
after mid-October 2013 as additional violations. Although the

1 Rouco testified by telephone by agreement of all parties.
timing of the announcement and implementation of the 2-hour
rule does not affect my ultimate conclusions in this case, I will
address credibility in the event that a reviewing authority deems
credibility resolution on the issue material.
For the following reasons, I credit Brown and Hughlett. As
to Hughlett, I take into account that “‘the testimony of current
employees which contradicts statements of their supervisors is
likely to be particularly reliable because these witnesses are
testifying adversely to their pecuniary interest.’” PPG Aero-
space Industries, Inc., 355 NLRB 103, 104 (2010), quoting
Flexsteel Industries, 316 NLRB 745, 745 (1995), enfd. mem.
83 F.3d 419 (5th Cir. 1996). Thus, current employee status
may serve as a “significant factor,” among others, on which
reliance can be placed in resolving credibility issues. Avenue
Care & Rehabilitation Center, 360 NLRB 152, 152 fn. 2
(2014); Flexsteel, ibid. Moreover, Hughlett appeared candid,
and he answered questions on direct and cross-examination
without any discernible attempt to slant his answers for or
against the Respondent. I therefore conclude that he was a
reliable witness.
Brown also struck me as sincere and as not embellishing or
exaggerating his testimony to further his case. He did get con-
fused at times as to the sequence of events and when he first
learned of the change in attendance policy to one point for
leave early. However, he did provide well-detailed, unequivo-
cal accounts of his various conversations with Jones and other
representatives of management; and his testimony with regard
to when employees learned of the 2-hour rule and when he first
spoke to Brandon, was consistent with that of Hughlett and
Brandon, respectively.
The Respondent’s admitted failure to document in any way
any 2-hour rule prior to when it purportedly was announced to
employees in mid-October 2013 is extremely suspicious. In-
deed, the first document of record in which the 2-hour rule was
articulated was an email of September 3, 2014, from Johnson to
Memphis management (GC Exh. 21).
Thus, Miles testified as followed. In October 2013, Corpo-
rate Vice President Andrew Tidwell approved changes in the
employee handbook and in attendance policies, which affected
approximately 8000 hourly employees nationwide. One of the
stated changes was that leave early would now be assessed one
attendance point instead of three. Miles had authority over
approximately 40–45 facilities throughout the southern United
States. According to Miles, over the weekend prior to October
14, 2013, she made the decision on her own to add the 2-hour
rule to the new attendance policy, in response to a question
from Manager Johnson about how to treat an employee who
worked only 5 minutes before leaving. She informed Johnson
of this when the latter called her on Monday morning, October
14, 2013, prior to Johnson’s first meeting with employees on
the new attendance policy. However, inexplicably, Shannon
did absolutely nothing to memoralize in writing what she had
stated to Johnson, and she took no steps whatsoever to convey
this in writing to other HR managers.
Shannon’s explanation that it would have been too much
trouble to make the change in writing and that Tidwell told her,
OZBURN-HESSEY LOGISTICS, LLC 7
“It’s gone out; just make sure everybody talks about it,”2 was
unconvincing. She had prior email communications with HR
managers about the new attendance policy and very easily
could have sent out an email to them advising them of her deci-
sion to modify the new leave early provision. Yet, Shannon, an
experienced HR professional with responsibility over 40–45
locations, failed to put anything in writing concerning her pur-
ported change to the new written policy. Equally unexplainable
is that Tidwell issued nothing in writing on a national basis to
announce such a 2-hour rule even though the new attendance
policy applied to all hourly employees across the country. I
find this wholly incredulous.
I also credit Hughlett’s testimony, over Brawley’s, as fol-
lows. When Brawley told Fiskars employees at a meeting in
approximately early November 2014 that they had to work at
least 2 hours to receive one point instead of two, Hughlett and a
couple of other employees protested that was not right because
the handbook stated that leaving early was one point. They
would not have said that in November 2014 had such a policy
been made clear to them in mid-October 2013.
In sum, I do not believe management’s witnesses that as of
October 2013 the Respondent adopted the 2-hour rule and an-
nounced it to employees.
Similarly, I credit Brown and Hughlett where their testimony
diverged from Supervisor Jones, who was frequently vague,
nonresponsive and/or evasive in her answers. Moreover, cer-
tain aspects of her testimony made no sense. Thus, she testified
that when she told Brown on October 15, 2014, to come to her
office after work, he did not ask why, and she gave no reason.
However, she could not recall if he showed her the written
attendance policy prior to his coming to her office. And, de-
spite her testimony that she earlier said nothing about the rea-
son, she further testified that when he came to her office, she
said, “[O]kay, I think you know what this is all about,” and he
said, “Yes.”3 In the absence of evidence that Brown was clair-
voyant, I do not accept this as credible. Nor do I credit her
testimony that she and Brown had no discussion of the attend-
ance policy at their meeting in her office that day.
Further, her testimony was confusing, to the point of inco-
herence, on how and why the subject of the 2-hour rule arose at
the October 16, 2013 meeting on the new attendance policy that
Johnson conducted with Fiskars employees:
“[I]f the question came up, everybody—the question came up.
When she first said, when she was first explaining it to them,
the same way you just read it [1 point in the written docu-
ment], the question came up. So that’s when she went back,
and she thoroughly explained it to them, to all of us, exactly
what it meant in detail.4
Facts
Based on the entire record, including the pleadings, testimo-
ny of witnesses and my observations of their demeanor, docu-
ments, and the parties’ stipulations, I find the facts as follows.
The Respondent is a limited liability company with an office

2 Tr. 375.
3 Tr. 243.
4 Tr. 255–256.
and places of business in Memphis, Tennessee, where it is en-
gaged in providing transportation, warehousing, and logistic
services. The Respondent admits jurisdiction as alleged in the
complaint, and I so find. The Respondent employs about 8,000
hourly employees nationwide.
On July 27, 2011, a representation election was conducted
among the Respondent’s employees in the following unit:
All fulltime custodians, customer service representatives, sen-
ior customer service representatives, cycle counters, inventory
specialists, maintenance, maintenance techs, material han-
dlers, operators 1, operators 2, operators 3, quality assurance
coordinators, returns clerks, and team leads employed at [six
Memphis, Tennessee facilities, including the 5510 building];
excluding all other employees, including office clerical and
professional employees, guards, and supervisors as defined in
the Act.
The tally was 165 votes for the Union, 164 against, with 14
challenged ballots. Subsequently, both the Respondent and the
Union filed objections to each other’s preelection conduct.
Judge Robert A. Ringler addressed these challenges and objec-
tions, as well as ULP charges that the Union had filed against
the Respondent, in his decision of May 15, 2012. The Board,
in 359 NLRB 1025 (2013), affirmed his findings that the Re-
spondent had committed a number of ULPs and engaged in
objectionable preelection conduct, and it adopted his order that
the Regional Director open and count six of the challenged
ballots: if the Union was designated by a majority of the votes
counted, a certification of representative would issue; if not, the
July 27, 2011 election would be set aside and a new election
would be conducted when a fair and free election could be held.
On May 14, 2013, the Regional Director issued a revised tal-
ly of ballots, with 169 votes for the Union, and 166 against; and
10 days later, the Acting Regional Director issued a certifica-
tion of representative.
Following the Supreme Court’s decision in NLRB v. Noel
Canning, et al., 134 S.Ct. 2550 (2014), the Board, on June 27,
2014, set aside its May 2, 2013 decision (2014 WL 2929772).
On November 17, 2014, in 361 NLRB 921 (2014), the Board
reaffirmed that decision and, in light of the revised tally of
ballots, certified the Union as the collective-bargaining repre-
sentative of unit employees.
In a subsequent refusal-to-bargain case, Ozburn-Hessey Lo-
gistics, LLC, 362 NLRB No. 118 (2015), enfd. –F.3d – 2016
WL 4409353 (D.C. Cir. Aug. 19, 2016),5 the Board granted the
General Counsel’s motion for summary judgment, rejecting any
arguments that the Respondent made concerning issues that
were or could have been litigated in the prior representation
proceeding.
The Respondent’s answer raised affirmative defenses con-
testing the validity of the certification. See also Tr. 24–25.
However, the Respondent’s brief does not renew any such ar-

5 The General Counsel on September 12, 2016, filed a motion that I
take judicial notice of the court’s decision. but I need not decide wheth-
er such decision is an “adjudicative fact” within the meaning of Federal
Rules of Evidence Rule 201. See 150 A.L.R. Fed. 543 §6[a] (originally
published in 1998).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gument, which I therefore consider withdrawn.
Building 5510 and the Fiskars Account
Building 5510, a warehouse, services four primary accounts,
including Fiskars. Employees are generally assigned to one
account, although they may be called to work on others if the
need arises. Johnson’s HR department is located near the break
room in the upstairs of the building. Building 5540 is located
on the same premises.
At all times material, there were approximately 30 Fiskars
employees. Each morning, Supervisor Jones held a daily
startup or preshift meeting with them in the Fiskars account
receiving area, to go over the day’s agenda.
The Attendance Policy prior to October 2013
The attendance policy in effect before the October 2013
changes was the revised policy of February 1, 2011.6 It provid-
ed a system of imposition of disciplinary points for absenteeism
and tardiness, with leaving early from work without the super-
visor’s approval being assigned three points. No distinction
was made between regular and probationary employees. It also
set out a schedule for progressive discipline, to be evaluated
over a 52-week rolling basis (points were excised after 1 year
of their accrual): (1) a written warning for four points; (2) a
second written warning for eight points; (3) a final written
warning for 12 points; and (4) termination for 13 combined
points within a 52-week rolling period.
The mid-October 2013 Announcement and Changes
Prior to September 30, 2013, the Respondent’s corporate
headquarters made the decision to make certain changes in the
employee handbook and in the attendance policy, for all hourly
employees, effective October 1. Miles stated in an email of
September 30 to various members of management,7 that the
most significant changes included:
(1) Employees would receive only one point for a “leave ear-
ly”;
(2) Employees would be allowed to leave messages, text or
email, etc. when calling out for a shift if preapproved by their
supervisor; and
(3) An introductory period was being added to the policy:
during the first 90 days of employment, an employee who ac-
cumulated six points could be terminated for excessive absen-
teeism.
During the week of October 14, 2013, Johnson held special
mandatory meetings with buildings 5510 and 5540 full-time
employees on changes in the attendance policy and in the em-
ployee handbook.8 The meeting with Fiskars employees was
held on October 16 in the upstairs break room. Employees
were provided with the new attendance policy that contained
the above changes, and signed an acknowledgment that they
had received it.9
The Respondent did not provide the Union with prior notice
of the announcement and implementation of the changes or,

6 GC Exh. 6.
7 GC Exh. 16 at 3.
8 R. Exh. 4.
9 GC Exh. 7; R. Exh. 1 (Brown’s acknowledgment).
therefore, an opportunity to bargain over them.
For reasons earlier stated, I discredit the Respondent’s wit-
nesses’ testimony that Johnson articulated the 2-hour rule at
these meetings, noting in particular the Respondent’s failure to
provide any written documentation whatsoever showing that a
2-hour rule was adopted in mid-October 2013. I therefore cred-
it Brown and Hughlett and find that as far as leave early, John-
son stated only that henceforth employees would receive one
point rather than three as per the new written policy.
On September 3, 2014, almost a year later, Johnson sent an
email to Memphis management regarding the attendance poli-
cy.10 Therein, she stated, “You MUST also make it clear by
stating to that employee the number of points they will receive
for leaving work,” bold-faced the 2-hour rule, and then asked,
“Am I clear?” She marked the email as “importance high.”
Brown’s Employment
Brown, initially a temporary employee referred by an em-
ployment agency, became a full-time regular employee on
April 22, 2013, and received the attendance policy then in ef-
fect. He was always assigned to the Fiskars account and re-
sponsible for putting on bar codes and price tags and assem-
bling cases that would go out to stores. At times, he was as-
signed work for customers other than Fiskars.
At about 9:30 a.m. on October 15, 2014, Jones came to
Brown’s workstation and told him to come to her office after
work. Later that morning, he went to her desk in the Fiskars
work area and asked what was going on. She replied that John-
son in HR had told her that she had to give him four points for
leaving early on two occasions (on July 28 and October 10,
2014). He asked for permission to see Johnson, which she gave
him.
Immediately afterward, Brown went to Johnson’s office in
HR. He asked what was going on with the points and why he
was receiving two points rather than one for leave early. She
replied, that was stated at a meeting in the break room. He
responded that he did not remember that. She produced the
acknowledgment that he had signed on October 16, 2013.
Brown pointed out that the policy clearly stated one point for
leaving early without permission. She read the absence line
(which states two points for “[a]n employee’s failure to report
to work as scheduled after missing over two hours of the work-
day.”). He asked for permission to see Phil Smith, director of
operations, and she gave it.
On the way to Smith’s office in the 5540 building, Brown
encountered Smith in the parking lot and showed him the poli-
cy stating one point for leave early. Smith responded that the
policy did not say two points but that was what it meant.
Brown then returned to Johnson’s office and asked if she was
really going to give him four points instead of two for leaving
early, and she replied that she had to. Immediately after that,
he encountered Smith in the break room adjourning the HR
office. He stated that it made no sense that an employee re-
ceived two points for leaving early, but an employee who failed
to come to work at all also received two points. Smith did not
verbally respond. At approximately 11 a.m., Brown returned to

10 GC Exh. 21.
OZBURN-HESSEY LOGISTICS, LLC 9
Jones’ desk and showed her the policy, repeating what he had
said to Smith and stating that he would fight it. She responded
that she did not see any reason why he should not.
After the end of the workday, at about 4:50 p.m., Brown
went to Jones’ office, where she handed him a second written
warning for attendance, for nine combined points, including
four for 1.75 hours early leave on July 28 and November 10,
2014.11 He refused to sign it.
About 10 days later, Brown encountered Director of Opera-
tions Brawley, who had recently assumed that position. Brown
explained that he had received two points for leaving early, but
the policy stated that it should have been one. Brawley replied
that he would look into it and get back to him.
In approximately early November 2014, Brawley spoke to
Fiskars employees on the subject of the 2-hour policy, in con-
junction with a regular morning startup meeting. Brawley stat-
ed that an employee had to stay over 2 hours—2 hours and 1
minute—in order to receive just one point; otherwise, it was
two points for leave early. Hughlett and a couple of other em-
ployees responded that was not right because the policy said
leave early was one point, to which Brawley did not respond.
Immediately after the meeting, Brown approached Brawley
and stated that he could not let the issue go and had to find
somebody with whom to address it. Brawley replied fine, that
he could take it up with the Union or the EEOC.
On December 12, 2014, Jones presented Brown with a final
written warning for having 13 combined points, including the
four points for July 28 and October 10, 2014; and on April 27,
2015, she issued him a final written warning for having 12
combined points, again including the four points for July 28
and October 10, 2014.12 Brown refused to sign either one,
stating on both that he disputed receiving two points instead of
one for his arriving late on those dates.
On July 1, 2015, Brown was terminated for having 13 com-
bined points, including the four points for July 28 and October
10, 2014.13 That morning, he arrived late after being delayed
en route because of a traffic accident. He was called to the HR
office at about 10:15 a.m. and met with Manager Jim Windisch,
Brawley, and Johnson. Brawley went over his points and said
that they were going to have to let him go. Brown stated that
he had thought about taking the issue of the two points for leav-
ing early to the Union but had not because he thought that they
were going to reconsider. Windisch responded that they were
not going to talk about that, but Brown could take it up with the
U.S. Government if he wanted. Johnson handed him his sepa-
ration papers.
According to both Brown and Brandon, Brown called him in
July 2015 and informed him that he had been terminated be-
cause the Company had changed the absentee policy. Brandon
was not aware before then of any changes in the attendance
policy made after the election, and he first saw the actual mid-

11 GC Exh. 11.
12 GC Exhs. 12, 13.
13 GC Exhs. 14 (attendance notice), 15 (separation notice - discharge
for violation of OHL attendance policy). In the attendance notice, the
“T” (tardy) notations for the dates July 28 and October 10, 2014, were
in error. Tr. 356 (Johnson).
October 2013 policy on the first day of the hearing.14 Brandon
works out of Birmingham, Alabama, and is principally in-
volved in organizing campaigns in various states. After the
election and the Respondent contested the Union’s representa-
tional status, Brandon had little contact with unit employees,
and no shop stewards operated at the facility.
Analysis and Conclusions
I. Did the Respondent in mid-October 2013, after the election
but before the Union was certified, violate Section 8(a)(5) and
(1) by unilaterally announcing and implementing a change in
the assessment of attendance points for employees leaving
early from work?
An employer violates Section 8(a)(5) and (1) of the Act by
unilaterally making substantial changes on subjects of mandato-
ry bargaining; to wit, employees’ wages, hours, or other terms
and conditions of employment, without first affording notice
and a meaningful opportunity to bargain to the union represent-
ing the employees. NLRB v. Katz, 369 U.S. 736 (1962); United
Cerebral Palsy of New York City, 347 NLRB 603, 608 (2006).
The Board has long held that leave or attendance policies are
mandatory subjects of bargaining. See, e.g., Chino Valley Med-
ical Center, 363 NLRB No. 32, slip op. at 1 fn. 1 (2015);
Dorsey Trailers, Inc., 327 NLRB 835, 852 fn. 26 (1999), enfd.
in relevant part 233 F.3d 831 (4th Cir. 2000); Ciba-Geigy
Pharmaceutical Division, 264 NLRB 1013, 1016 (1982), enfd.
722 F.3d 1120 (3d Cir. 1983).
The Board also has long held that, absent compelling eco-
nomic considerations, an employer acts at its peril in making
changes in terms and conditions of employment during the
period that objections to an election are pending and the final
determination has not yet been made. Thus, where the final
determination on the objections results in the certification of a
representative, the employer is held to have violated Section
8(a)(5) and (1) for having made such unilateral changes. Alta
Vista Regional Hospital, 357 NLRB 326, 327 (2011); Mike
O’Connor Chevrolet, 209 NLRB 701, 703 (1974), enforcement
denied on other grounds, 512 F.2d 684 (8th Cir. 1975) (“Such
changes have the effect of bypassing, undercutting, and under-
mining the union’s status as the statutory representative in the
event a certification is issued.”). Here, the Board on November
17, 2014, certified the Union as the collective-bargaining repre-
sentative of unit employees, and the United States Court of
Appeals for the District of Columbia upheld this determination
on August 16, 2016. As noted, the Respondent’s brief does not
pursue the averment that the Union’s certification was invalid.
Accordingly, the Respondent violated Section 8(a)(5) and (1)
by announcing and changing its attendance policy in mid-
October 2013, to wit, changing the points assessed for leaving
early, without providing the Union with prior notice or an op-
portunity to bargain.
II. Should the General Counsel be permitted to amend the
complaint to add the allegation that in mid-October 2013, the
Respondent announced and implemented another undisputed
unilateral change in attendance policy, i.e., reducing the num-

14 The original and amended charges all give the date of the unilat-
eral change as May or June 2014.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber of attendance points for which probationary employees
could be terminated?
The original and amended charges all aver that the Respond-
ent “unilaterally changed its attendance policy” and thus do not
specify any particular provisions. On the second and last day
of trial, the General Counsel, after presenting all of his witness-
es and prior to resting his case, moved to amend the complaint
to add the above as paragraph 7(a)(iii).
Amendments to a complaint before, during, or after a hearing
are allowed “upon such terms as may be deemed just.” Board’s
Rules, Section 102.17. Under this provision, a judge has wide
discretion to grant or deny such motions. Rogan Bros. Sanita-
tion, Inc., 362 NLRB No. 61, slip op. at 3 fn. 8 (2015); Bruce
Packing Co., 357 NLRB 1084, 1084 at fn. 2 (2011), enforce-
ment denied on point, 795 F.3d 18 (DC Cir. 2015).
Whether it is just to grant a motion to amend a complaint
during a hearing is based on three factors: (1) whether there
was surprise or lack of notice, (2) whether the General Counsel
offered a valid excuse for its delay in moving to amend, and (3)
whether the matter was fully litigated. Remington Lodging &
Hospitality, LLC, 363 NRB No. 112, slip op. at 1 fn. 1 (2016)
(motion made 2 days before the hearing closed); Stagehands
Referral Service, LLC, 347 NRLB 1167, 1171 (2006), enfd.
after remand, 315 Fed.Appx. 318 (4th Cir. 2009) (motion made
at the end of the hearing); Cab Associates, 340 NLRB 1391,
1397 (2003) (motion made after all parties had rested their
cases and during adjournment for the testimony of rebuttal
witnesses).
The Respondent’s Co-Counsel Bodzy objected to the
amendment on the ground that the General Counsel was pro-
vided with GC Exhs. 6 and 7 (the 2011 and 2013 attendance
policies) in early February 2016, and because the General
Counsel previously advised him that the only unilateral change
being alleged was the change in attendance points for leaving
early. To support this representation, he proffered R. Exh. 19, a
March 1, 2016 email string between him and the General Coun-
sel. I rejected that exhibit at trial but, on further reflection, I
reverse my ruling and admit it for the limited purpose for which
it was offered.
The General Counsel responded that the Union had never
seen the mid-October 2013 written policy prior to the hearing
and that the General Counsel could not solicit an amended
charge earlier.
However, even if the General Counsel did not meet with
Brandon until the day of the trial, he could have discussed this
with him before the trial opened and made a motion to amend
at the outset and before any testimony was taken.
R. Exh. 19 is significant. Therein, the General Counsel noti-
fied Attorney Bodzy on March 1 that the Region had found
merit to the allegations that “the Employer made an unlawful
unilateral change concerning the attendance policy and dis-
charged employee Jermaine Brown ….” Bodzy asked, “What
specifically is the alleged unilateral change to the attendance
policy …?” In response, the General Counsel addressed only
the change in attendance points to employees who leave work
early, saying nothing about probationary employees. The rec-
ord does not reflect that the General Counsel advised the Re-
spondent’s counsels at any time thereafter of any change in this
position, prior to concluding the testimony of the General
Counsel’s witnesses.
I recognize that the undisputed change in policy on proba-
tionary employees was in writing and known to the Respond-
ent. Nevertheless, this does not preclude the possibility that the
Respondent’s counsels might have had cross-examination for
the General Counsel’s witnesses on that particular subject, and
might have had other witnesses and documents to present in
defense had they been provided adequate notice of the General
Counsel’s intention to amend.
For the above reasons, I conclude that the General Counsel
failed to meet any of the three pertinent factors described
above, and I therefore deny the motion to amend. In light of
this conclusion, I need not address the Respondent’s argument
(R. Br. at 20–21) that the amendment should be barred as un-
timely under Section 10(b) of the Act because no charge was
ever filed concerning the change to the points required to ter-
minate probationary employees.15
III. Was Brown discharged on July 1, 2015, because the Re-
spondent relied on attendance points that he received as a re-
sult of the unilateral change in assessing leave early points?
The General Counsel alleges only the mid-October 2013
change in attendance points as a violation, regardless of any
later additional unilateral changes. The basis for determining
whether the Respondent’s unilateral action harmed Brown has
to be the policy before and after the mid-October 2013 change,
not whether any later unilateral modifications of that change
worked to his detriment.
There is no dispute that Brown committed all of the attend-
ance infractions for which he was ultimately terminated. It is
true that his discharge on July 1, 2015, was based in part on the
imposition of four points for the two occasions that he left 1.45
hours early. However, the two points that he received for each
violation did not represent increased points vis-à-vis the pre-
mid-October 2013 policy, which would have assigned three
points each. Rather, they represented an increase over the orig-
inal mid-October 2013 revision to the attendance policy that
resulted from the Respondent’s later implementation of the 2-
hour rule in place of a set one point for all leave early occur-
rences.
Thus, under either the original mid-October 2013 change, or
the 2-hour rule into which it evolved, Brown benefitted in that
he accrued the 13 points at a later time and thus delayed rather
than hastened his discharge.
Accordingly, I cannot conclude that Brown’s discharge was
caused by any unilateral change in the Respondent’s attendance
policy and therefore recommend dismissal of this allegation.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.

15 Although the Respondent’s answer asserted a 10(b) bar to the al-
legations in the existing complaint, the Respondent’s brief does not
raise this defense, and I deem it withdrawn.
OZBURN-HESSEY LOGISTICS, LLC 11
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2 (6) and (7) of the Act and violated Section 8(a)(5)
and (1) of the Act: Unilaterally announced and changed the
number of points assessed for employees leaving work early, in
mid-October 2013, without first having afforded the Union
notice and an opportunity to bargain.
REMEDY
Because the Respondent has engaged in unfair labor practic-
es, it must be ordered to cease and desist and to take certain
affirmative action designed to effectuate the policies of the Act.
The Board’s standard remedy in Section 8(a)(5) cases in-
volving unilateral changes resulting to losses to employees is to
make whole any employees affected by the change. Grand
Rapids Press, 325 NLRB 915, 916 (1998), enfd. mem. 208
F.3d 214 (2000); North Star Steel v. NLRB, 974 F.2d 68, 70–71
(8th Cir. 1992), enfg. 305 NLRB 45 (1991). However, inas-
much as the unilateral change regarding points assessed for
leaving work early benefitted, rather than harmed, unit employ-
ees, such a remedy is inapplicable.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Osburne-Hessey Logistics, LLC, Memphis,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally announcing and implementing changes in
the number of attendance points assessed for employees leaving
work early.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights Section
7 of the Act guarantees to them.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
bargaining representative of employees in the following bar-
gaining unit:
All fulltime custodians, customer service representatives, sen-
ior customer service representatives, cycle counters, inventory
specialists, maintenance, maintenance techs, material han-
dlers, operators 1, operators 2, operators 3, quality assurance
coordinators, returns clerks, and team leads employed at [its
six Memphis, Tennessee facilities]; excluding all other em-
ployees, including office clerical and professional employees,
guards, and supervisors as defined in the Act.
(b) Upon the Union’s request, rescind the mid-October 2013
change in the number of attendance points assessed for em-
ployees leaving work early.

16 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(c) Within 14 days after service by the Region, post at its fa-
cilities in Memphis, Tennessee, copies of the attached notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet set, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 October 14, 2013.
(d) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 22, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
An employer subject to the National Labor Relations Act
must collectively bargain with the labor organization that repre-
sents its employees concerning wages, hours, and working
conditions.
United Steel, Paper and Forestry, Rubber, Manufacturing,

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Energy, Allied Industrial and Service Workers a/k/a United
Steelworkers Union (the Union), is the certified bargaining
representative of a unit of our employees in the following unit:
All fulltime custodians, customer service representatives, sen-
ior customer service representatives, cycle counters, inventory
specialists, maintenance, maintenance techs, material han-
dlers, operators 1, operators 2, operators 3, quality assurance
coordinators, returns clerks, and team leads employed at our
six Memphis, Tennessee facilities; excluding all other em-
ployees, including office clerical and professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT announce or implement changes in the number
of attendance points that you are assessed for leaving work
early, without first giving the Union notice and an opportunity
to bargain.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL, before announcing or implementing any changes
in wages, hours, or other terms and conditions of employment
of unit employees, notify and, on request, bargain with the Un-
ion as the exclusive bargaining representative of employees in
the above unit.
WE WILL, upon the Union’s request, rescind the mid-October
2013 change that we made in the number of attendance points
that you are assessed for leaving work early.
OZBURN-HESSEY LOGISTICS, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15–CA–165554 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.