TNT Logistics

National Labor Relations Board - Board Decisions

Jul 24, 2006

347 N.L.R.B. 568 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 55
568
TNT Logistics North America, Inc. and Emerson
Young, and John Jolliff. Cases 8–CA–33664–1
and 8–CA–33810–1
July 24, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On July 16, 2003, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
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, findings, and conclusions only
to the extent consistent with this Decision and Order.
The issue presented is whether a letter sent by employ-
ees to the Respondent’s corporate management and to
Honda of America (Honda), the Respondent’s primary
customer at its East Liberty, Ohio facility, constituted
unprotected activity because it was maliciously false,
warranting three employees’ discharges for cause. The
judge found that the discharges violated Section 8(a)(1)
of the Act because the employees’ involvement in pre-
paring and sending the letter was protected concerted
activity. For the following reasons, we find the employ-
ees’ activity was not protected and, accordingly, we find
that the employees were discharged for cause.1
I. THE RELEVANT FACTS
The Respondent engages in the interstate transporta-
tion of freight at its East Liberty, Ohio facility. Employ-
ees Emerson Young, John Jolliff, and Steven Daniels
worked for the Respondent as truckdrivers at East Lib-
erty until their terminations on August 26, 2002.2 In
May, a few employees approached Young, who had ear-
lier contacted the United Auto Workers (UAW) about
organizing the employees at the facility, with problems
about working conditions and expressed interest in orga-
nizing. The employees also suggested sending a letter to
the Respondent’s corporate management describing
problems with working conditions. Young agreed to
draft the letter after the employees gave him their com-
plaints. Jolliff and Daniels were among those who

1 The judge also found that the Respondent violated Sec. 8(a)(1) of
the Act by threatening to discharge an employee because of his union
sympathies, asking union supporters to resign their employment if they
were dissatisfied with working conditions, coercively interrogating
employees concerning employees’ protected concerted activities, giv-
ing the impression to employees that it was surveilling their protected
concerted activity, and coercively interrogating an employee concern-
ing his union sympathy and support. In the absence of exceptions, we
adopt these other findings of the judge.
2 All dates are in 2002.
voiced complaints to Young. Jolliff earlier voiced com-
plaints with management during a safety meeting and
said that management should be “disciplined” because
the employees were not getting runs to which they felt
they were entitled.
On August 12, Young sent a letter to the Respondent’s
corporate management in Jacksonville, Florida, and to
Honda. The letter indicated that “[c]opies and informa-
tion” would be sent to two Columbus, Ohio television
stations at a later date “if the Respondent did not resolve
this situation.” The letter was not signed individually but
indicated that it was sent from the dock workers and
drivers at the facility.
The letter, which is quoted in full in the judge’s deci-
sion, stated that it was a “protest” of the “management
[and] managers” at the facility. The letter listed items
that the employees believed constituted mistreatment and
discrimination by two named managers. It accused one
of the managers of rarely being present to hear employee
complaints and of lying to employees. It accused the
other of being interested in his own needs and his own
friends and of once pushing an employee. It listed and
described four particular areas of concern at the facility:
health, funerals, insurance, and logbooks.
Of particular relevance are the letter’s statements
about logbooks. The employees’ concern about log-
books arose when management changed the length of
time expected for delivery routes from 1 hour and 30
minutes to 1 hour and 15 minutes. Despite the change in
route times, the employees claimed that it still took 1
hour and 30 minutes to legally drive the routes. Em-
ployee bonuses were affected by whether or not employ-
ees made timely deliveries. The employees’ letter ex-
pressed their concern as follows:
LOGBOOKS
Some drivers are being asked to fix their log-
books to make extra runs. These drivers are being
asked by dispatchers and management to do these
runs and either fix their logbooks or turn their heads
on it. Mr. John Cox once said he would not go to
jail for fixing logbooks for anyone. Well Mr. Cox
pack your suitcase, it has and is presently being done
at [East Liberty].
Although the letter clearly and unequivocally stated
that employees were “asked” by management to “fix”
logbooks, Jolliff testified to the contrary at the unfair
labor practice hearing. Specifically, Jolliff testified that
employees were not asked to “fix” logbooks, but that he
felt they had to “fix” them in order to drive legally and
make their performance bonuses.
TNT LOGISTICS NORTH AMERICA, INC. 569
After receiving the letter, Honda contacted the Re-
spondent and asked for assurances that there would be no
“disruption” at the East Liberty facility. The Respondent
discharged Young, Jolliff, and Daniels on August 26 for
their participation in the letter.
II. THE JUDGE’S DECISION AND THE RESPONDENT’S
EXCEPTIONS
The judge found, inter alia, that the discharges of
Young, Jolliff, and Daniels violated Section 8(a)(1) of
the Act. In making this finding, the judge noted that the
test for determining whether employee statements are
protected is not whether such statements are unsupported
or unfounded but whether they are maliciously false.
Without applying this test to the statements in the letter,
the judge concluded that the letter was protected activity.
He rejected, also without analysis, the Respondent’s con-
cern that the letter was sent to its primary customer at
East Liberty. The judge said that “absent a malicious
motive [an employee’s] right to appeal to the public is
not dependent on the sensitivity of Respondent to his
choice of forum,” quoting Allied Aviation Service, 248
NLRB 229, 231 (1980), enfd. 636 F.2d 1210 (3d Cir.
1980) mem.
The Respondent has excepted to the judge’s finding
that the letter was protected and argues, inter alia, that
the statements accusing the Respondent of asking em-
ployees to “fix” logbooks—activity Respondent asserts
could result in civil if not criminal penalties—rendered
the letter unprotected. We find merit in the Respon-
dent’s argument.
III. ANALYSIS
Section 7 of the Act protects “concerted activities for
the purpose of bargaining or other mutual aid or protec-
tion.” The letter, which was discussed among employees
and jointly drafted with input from various individuals,
clearly constituted concerted activity. The question is
whether it also constituted protected activity. The letter
was sent to both the Respondent and its most important
customer at East Liberty, with threats that further dis-
semination to media outlets might follow. As the Board
recently reiterated, “employee appeals concerning work-
ing conditions made to parties outside the immediate
employer-employee relationship may be protected by the
Act.” Endicott Interconnect Technologies, 345 NLRB
448, 450 (2005). However, such communications are not
protected without limit, and will lose the protection of
the Act if maliciously false, i.e., statements made with
knowledge of their falsity or with reckless disregard for
their truth or falsity. See Sprint/United Management
Co., 339 NLRB 1012, 1018 (2003). Such communica-
tions may also lose protection where they constitute a
“public disparagement of the employer’s product or [an]
undermining of its reputation.” Veeder-Root Co., 237
NLRB 1175, 1177 (1978). We find the letter unpro-
tected because it was maliciously false.3
We find that the letter lost the protection of the Act
because the statements in the letter accusing the Respon-
dent of asking employees to “fix” the logbooks were
maliciously false. The evidence supports a finding that
the employees made this statement with knowledge of its
falsity or at least reckless disregard for its truth. The em-
ployees’ letter affirmatively represents that management
“asked” employees to “fix” logbooks, but employee
Jolliff admitted that management never made such a re-
quest, and there was no evidence whatsoever to contra-
dict this explicit admission.4 While the Respondent
changed the route times, this was hardly a request from
management that employees fraudulently record their log
book entries, as described by the employees in the letter.
Yet, the letter made this factual representation to Re-
spondent’s single largest customer. Thus, the letter
evinced, at the very least, a reckless disregard for the
truth. Further, Jolliff’s earlier statement during a safety
meeting that management should be “disciplined” sug-
gests that the employees intended to effectuate their de-
sire to “discipline” management by disseminating a dam-
aging and false accusation to a vital customer, one likely
to be sensitive to allegations of willful disregard of trans-
portation regulations by its carrier. Thus, contrary to our
colleague, we find that this false accusation, in context,
was more than mere “exaggeration.”
Accordingly, contrary to the judge and our colleague,
we find that the letter lost the protection of the Act and
that the Respondent did not violate Section 8(a)(1) of the
Act by discharging employees Young, Jolliff, and
Daniels for their participation in the letter.5

3 Chairman Battista agrees that the letter was unprotected because it
contained the maliciously false assertion that officials of the Respon-
dent engaged in unlawful conduct, i.e., asked employees to falsify
logbooks. Because the letter here was unprotected as maliciously false,
Chairman Battista finds it unnecessary to pass on the issue of whether
the letter would be unprotected for the additional reason that it assert-
edly disparages the Respondent.
4 Our dissenting colleague asserts that because Young and Jolliff
raised their concerns to Cox, and because Cox failed to contradict or
challenge Jolliff’s statement that drivers were forced to falsify log-
books, it was “not unreasonable for Jolliff and Young to feel, even if
incorrectly, that management was at least implicitly condoning the
falsification of logbooks.” This assertion is unsupported conjecture.
Notwithstanding Cox’s apparent failure to follow through, his response
to Jolliff that he would “check into it,” rather than indicating approval
of the falsification of logbooks, suggests that management would dis-
approve of such falsification.
5 We recognize that only Young drafted the letter. However, the
letter indicated that it was sent from the dock workers and drivers at the
facility. Indeed, the General Counsel acknowledges (and contends) that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
ORDER
The National Labor Relations Board orders that the
Respondent, TNT Logistics North America, Inc., East
Liberty, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening to discharge employees because of
their union sympathies or support.
(b) Asking union supporters to resign their employ-
ment if they are dissatisfied with working conditions.
(c) Coercively interrogating employees concerning
employees’ protected concerted activities.
(d) Giving the impression to employees that it was
surveilling their protected concerted activity.
(e) Coercively interrogating any employees about their
union sympathy or support.
(f) 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) Within 14 days after service by Region 8, post at
its various facilities copies of the attached notice marked
“Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since May 6, 2002.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

the letter was the concerted activity of all three employees involved
herein. Thus, inasmuch as the letter was unprotected, the concerted
activity of all three was unprotected.
6 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.”
MEMBER SCHAUMBER, concurring in part.
In addition to finding the employees’ letter unpro-
tected because it was maliciously false, as stated in the
majority, I also find it unprotected because it publicly
disparaged the Respondent. The employees’ maliciously
false statements went to the heart of the Respondent’s
business, the interstate delivery of commercial goods,
and they were sent to the Respondent’s primary customer
at its East Liberty facility. The Board has found that “the
right to engage in union or concerted activities does not
justify an employee in maliciously disparaging his em-
ployer’s product or undermining his reputation.” Fire-
house Restaurant, 220 NLRB 818, 825 (1975). See also
American Arbitration Assn., 233 NLRB 71 (1977) (em-
ployee questionnaire sent to the employer’s clients un-
protected in part because it held the employer up to ridi-
cule and could have been interpreted as purposefully
endeavoring to embarrass the employer). A fine line
exists between raising sensitive issues that relate to terms
and conditions of employment and disparaging an em-
ployer’s reputation. See Sahara Datsun, 278 NLRB
1044, 1046 (1986), enfd. 811 F.2d 1317 (9th Cir. 1987),
citing Allied Aviation Service Co., 248 NLRB 229, 231
(1980), enfd. Mem. 636 F.2d 1210 (3d Cir. 1980). I find
the statements about fixing the logbooks crossed that
line.
The interstate delivery of commercial goods is subject
to State and/or Federal regulations. Compliance with
governmental regulations is an integral aspect of the Re-
spondent’s business and accusing the Respondent of fail-
ing to comply with the regulations not only impugned the
Respondent’s business but, according to the Respon-
dent’s unrefuted claims, also subjected it to potential
civil or criminal sanctions. The employees acknowl-
edged this by stating in their letter that the Respondent’s
safety manager, John Cox, would go to jail for falsifying
records. This serious accusation could have a devastat-
ing impact on the Respondent’s reputation and could
undermine the relationship between the Respondent and
Honda, as evidenced by Honda’s concern about an op-
erational disruption.
In Sahara Datsun, supra, the Board found that an em-
ployee’s conduct lost the protection of the Act when he
informed a bank through which the employer obtained its
financing for its customers that the employer’s managers
were submitting falsified customer credit applications to
the bank. The Board found that the employee had little
or no factual basis for his accusations and that the em-
ployee intended primarily to disparage the reputation of
the employer in the eyes of the financial institution. Id.
at 1046. Similarly, here, I find that the employees, by
making the maliciously false statements about logbooks,
TNT LOGISTICS NORTH AMERICA, INC. 571
primarily intended to disparage the Respondent in the
eyes of Honda. Thus, contrary to the judge, I find that
the letter lost the protection of the Act because it was
maliciously false and because it disparaged the Respon-
dent.
MEMBER WALSH, dissenting.
My colleagues find that the employees’ letter to man-
agement and customer Honda (the letter) lost the protec-
tion of the Act because the letter’s accusation that the
Respondent asked drivers to “fix” their logbooks was
maliciously false. I disagree.
I.
The log book statement would be maliciously false if it
were made with knowledge of its falsity or with reckless
disregard for its truth or falsity. See New York Times Co.
v. Sullivan, 376 U.S. 254, 280 (1964); Linn v. Plant
Guards Workers of America, Local 114, 383 U.S. 53
(1966) (adopting the New York Times standard in NLRB
proceedings). In Titanium Metals Corp., 340 NLRB
766, 766 fn. 3; 772 (2003), the Board expressly adopted
the judge’s following thorough discussion of applicable
principles:
[I]n Sahara Datsun, 278 NLRB 1044 (1986), enfd. 811
F.2d 1317 (9th Cir. 1987), the Board found that an em-
ployee’s statements that the employer falsified cus-
tomer credit applications, which were made to the bank
that granted financing to the employer’s customers,
were unprotected. The Board found that the statements,
although related to terms and conditions of employ-
ment, were, nevertheless, unsubstantiated assertions
that could have ruined a longstanding business relation-
ship based on trust and fair dealing. On the other hand,
the Board in Veeder-Root Co., 237 NLRB 1175 (1978),
found that employee literature did not lose the protec-
tion of the act because it was false, misleading, or inac-
curate, provided that the statements were not deliber-
ately or maliciously false or made with reckless disre-
gard for the truth. See National Steel Corp., 236 NLRB
822, 824 (1982). The Board has also found that em-
ployee action is protected whether or not employees
were reasonable or correct in a good-faith belief. Fred-
ericksburg Glass & Mirror, 323 NLRB 165, 179
(1997). The Board’s decision in New York University
Medical Center, 261 NLRB 822, 824 (1982), reflects
how the Board applied this standard. In that case, the
Board found that the statement, “[T]he NYU bosses
have turned their security guards into a fascist gestapo
illegally searching workers and firing them,” was not
deliberately or maliciously false because it was based
on employee reports that the employer’s guards were
searching black and Hispanic employees.
II.
Here, the record establishes that Emerson Young often
spoke with Safety Manager John Cox about how log-
books should be kept up, how people should be
“straight” in them, and “not be fixing the logbooks to run
extra runs.” The record further establishes that John
Jolliff told Cox that by reducing the prescribed amount
of time for completion of particular delivery routes, Con-
tract Manager Jeff Basinger was “setting up the routes so
that you would have to falsify your logs to legally run the
route.” Jolliff explained in his testimony at the hearing
that Basinger required particular routes to be completed
in 1 hour and 15 minutes, whereas Jolliff believed that it
took 1 hour and 30 minutes (the amount of time that
Jolliff had previously been allowed) to complete these
routes; according to Jolliff, “You legally can’t do it in an
hour and fifteen minutes.” Also according to Jolliff, if a
driver wanted to earn a monthly performance bonus for
timely completion of his routes, he would have to “fal-
sify” his log book to show that he had completed some
routes in less time than it actually took him to do so.
Jolliff expressed his concerns about these matters to Cox.
Cox did not challenge Jolliff’s claim that the drivers
were having to falsify their logbooks to show compliance
with Basinger’s new standards, but told Jolliff instead
that he was going to “check into it.” There is, however,
no evidence that Cox reported back to Jolliff about this
matter. Instead, about a week later, Basinger angrily
asked Jolliff why Jolliff had gone over Basinger’s head
to speak to Cox about the logbooks (among other prob-
lems).
Jolliff subsequently gave Young input into the letter
that the employees sent to management and to Honda.
Jolliff testified that he was not instructed by the Respon-
dent to falsify his log book.
III.
While the log book statement in the letter may have
in fact been false, in the sense that there is no evidence
that employees were actually asked by management to
falsify their logs, it did not lose the protection of the Act
under the above-cited precedent if it was not maliciously
false, i.e., knowingly false or made with reckless disre-
gard for whether or not it was false. It was not unreason-
able for Jolliff and Young to feel, even if incorrectly, that
management was at least implicitly condoning the falsi-
fication of logbooks to show compliance with Basinger’s
reduced standard running times for some routes.1 In fact,
when Jolliff told Cox that the drivers were being forced

1 My colleagues incorrectly reject this finding as unsupported con-
jecture. It is not. Rather, this finding is based on the totality of the
relevant evidence, as set forth in the preceding section.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
to falsify their logbooks to show such compliance, Cox
never challenged or contradicted Jolliff’s assertion. At
most, therefore, the letter’s statement that management
was asking employees to fix their logbooks was an exag-
geration, which hardly makes it deliberately or recklessly
false. It was, in short, not maliciously false, and its in-
clusion in the letter therefore did not deprive Young,
Jolliff, and Steven Daniels of the protection of the Act. I
therefore dissent from my colleagues’ reversal of the
judge’s finding that the Respondent violated Section
8(a)(1) of the Act by discharging these employees for
their protected concerted activity.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY THE 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 threaten to discharge employees because
of their union sympathies or support.
WE WILL NOT ask union supporters to resign their em-
ployment if they are dissatisfied with working condi-
tions.
WE WILL NOT coercively interrogate employees con-
cerning employees’ protected concerted activities.
WE WILL NOT give the impression to employees that
we are surveilling their protected concerted activity.
WE WILL NOT coercively interrogate employees about
their union sympathy or support.
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.
TNT LOGISTICS NORTH AMERICA, INC.
Allen Binstock, Esq., for the General Counsel.
John D. Webb, Esq., for Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Marysville, Ohio, on May 20, 2003. The charges
were filed September 11 and November 4, 2002,1 and the com-
plaint was issued January 23, 2003. The complaint, as
amended at the hearing, alleges that TNT Logistics North
America, Inc. (Respondent) violated Section 8(a)(1) by threat-
ening an employee with discharge because of his union activi-
ties, inviting an employee to resign because of the employee’s
union activities, creating the impression that it was engaging in
surveillance of the protected concerted activity of its employ-
ees, interrogating employees concerning their protected con-
certed activities, and interrogating an employee concerning his
union activities. The complaint also alleges that Respondent
violated Section 8(a)(1) by suspending and then terminating
employees John Jolliff, Emerson Young, and Steven Daniels
because they engaged in protected concerted activity in the
form of a letter that was sent to Respondent’s corporate man-
agement and to a customer. Respondent filed a timely answer
that denied the substantive allegations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the interstate trans-
portation of freight at its facility in East Liberty, Ohio, where it
annually derives gross revenues in excess of $50,000 for the
transportation of freight from the State of Ohio directly to
points outside the State of Ohio. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Prior to September 2001, Respondent was known as CTI
Logistics and before that as Customized Transportation, Incor-
porated. Honda of America is Respondent’s biggest customer
at its East Liberty, Ohio facility. Robert Wheeler is Respon-
dent’s director of Honda operations, a position he had held
since August 2002. Before that Wheeler was district manager
for Honda manufacturing. Jeff Basinger is Respondent’s con-
tract manager at the facility.
Emerson Young worked for Respondent as a truckdriver
from 1990 until his termination on August 22, 2002.2 At the
time of his termination Young made three trips daily to Troy,
Ohio, where he picked up a trailer loaded with automobile parts
for Honda and returned to Respondent to drop off the loaded
trailer. While employed by Respondent, Young received
awards for safe driving and professionalism; he was never dis-
ciplined. John Jolliff began working for Respondent in No-
vember 1995 as a truckdriver. Like Young, Jolliff received

1
All dates are in 2002 unless otherwise indicated.
2 From 1992 to 1996 Young worked as a casual employee. During
the remaining periods of his employment Young worked full time.
TNT LOGISTICS NORTH AMERICA, INC. 573
awards for safe driving. Steven Daniels worked for Respon-
dent as a truckdriver since December 1994. He too received
several performance awards.
In January Young contacted the United Auto Workers in
Marysville, Ohio. The union officials advised Young to have
the workers who favored a union ready, but to wait until an-
other organizing campaign at Honda became active.
During a safety meeting in April at which all the drivers
were present, Jolliff complained to Basinger that the drivers
were concerned that they were not going to get the routes that
they felt they were entitled to, among other complaints. Jolliff
said that management should be disciplined as a result.
Wheeler, who was also present, answered that Jolliff was
prounion, that Honda did not like unions, and that he should go
somewhere else and to work there.3
Meanwhile, in January 2001, Jolliff filed a worker’s com-
pensation claim over an injury he sustained at work. Jolliff
asserts that his relationship with Respondent deteriorated after
that and he began to be harassed by Basinger. In about late
April or early May 2002, Jolliff complained of this to John
Cox, Respondent’s safety manager and someone with whom
Jolliff felt he had a good relationship. About a week after
Jolliff complained to Cox about Basinger, Basinger summoned
Jolliff into his office and asked why Jolliff went over his head.
Basinger appeared angry; he spoke in a loud voice and threw
papers on a table. Jolliff replied that he never got any results
by talking with Basinger and that Respondent had an open door
policy. Basinger said that Jolliff was a weak link among the
drivers and that Jolliff should go work somewhere else like
Clark Trucking.4 Basinger asked if Jolliff had any problems
working with Respondent. Jolliff replied that he had no prob-
lems with the workers but he did with management. Basinger
declared that Jolliff was prounion and Honda did not like un-
ions and that if Jolliff did not keep his mouth shut Wheeler was
going to fire him (Jolliff). Jolliff had seen Basinger react an-
grily at other times too, sometimes physically pushing people
out of his way.5
In May some dock workers complained to Young about
working conditions and expressed their desire to go forward to
obtain union representation. They also suggested sending a
letter to Respondent’s higher management that described the
local conditions that the employees felt were issues. The em-
ployees thought the letter was a good idea because they felt that

3 These facts are based on the credible testimony of Young and
Jolliff. Wheeler denied making these statements, but his recollection of
this meeting was lacking in detail and his demeanor was unconvincing;
I do not credit his testimony on this matter. Basinger’s version of this
meeting was likewise unpersuasive. For example, he claimed that he
did not conclude that Jolliff was prounion until after he learned of the
letter described below. Yet, when asked to explain how he came to
know that Jolliff was prounion, Basinger answered he made that con-
clusion based on the letter that was sent. Yet Jolliff made complaints at
this meeting that were similar to those made in the letter but Basinger
would have us believe that he made no similar inference.
4 Clark Trucking is apparently a nonunion employer that has under-
gone several organizing campaigns.
5 These facts are based on Jolliff’s credible testimony. Basinger’s
denials were unconvincing and his demeanor lacking in credibility. I
do not credit his testimony on this matter either.
local managers had not responded to their concerns and be-
cause Respondent had expressed that it had an open door policy
that purported to welcome such action. Young discussed the
idea of sending the letter with about 80—90 employees. The
group concluded that because Young had contacted the Union,
they would give him their grievances and he would compose
the letter. Jolliff was among the employees who voiced com-
plaints to Young. Jolliff complained that he was being har-
assed; he was aware that Young intended to prepare and send a
letter to Respondent’s corporate executives expressing the
complaints. Likewise Young told Daniels that he was working
on the letter and that he felt the corporate officials should know
their problems. Daniels voices his concerns about scheduling
for Saturday overtime.
On August 12, Young sent a letter to Respondent’s corporate
management in Jacksonville, Florida; he also sent a copy to
Honda. Because Respondent relies on the content of the letter
to justify its termination of the three employees, the rather
lengthy letter is set forth in its entirety:
This letter is being sent to protest the management & manag-
ers at contracts 006 & 001. We hope that our management at
our home office will get an idea of how we the dock workers
and truck drivers at these contracts are being treated & do
something about it.
Some of the things listed in this letter are just some of the
many wrong things we feel are mistreatment & discrimination
against our work force here by managers Robert Wheeler and
Jeff Basinger.
These are the poorest managers we have had in the history of
these two contracts since our beginning in 1989.
Mr. Wheeler is hardly ever here to listen to our problems
when we need advise on problem solving. He has lied to us
on various occasions and we do not approve of this and many
of his methods. We feel he should be a better leader and
manager. We have lost a lot of business under Mr. Wheeler’s
management. He has done some good things for us, but the
loss of business and leadership looms big.
Mr. Basinger came here with what appears to be his own per-
sonal gain for himself. He put up a wall to most people—
mainly the drivers—under his contract. You do as I say or
else.
Well it may be else as most people or drivers don’t care for
him. He believes he put TNT on the map here, well we know
better.
We the dock workers & drivers of 006 & 001 are tired of be-
ing treated the way these 2 managers are doing us. We want
to have a good & decent place to work and have a good rela-
tionship with our management here.
We have a list of some of the things that both managers have
imposed on both dock workers and rivers and hope you will
step in and help us to have harmony again.
HEALTH
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
We are given points for going to the doctors and or dentist
even if we have a written excuse. We thought the company
TNT wanted us to take care of our health. Lots of workers
are showing up sick & then going home and getting ½ points
so they don’t get fired. Drivers are driving sick & tired and
this is not safe or healthy. People are not taking care of or not
given the time to see a dentist, this is totally uncalled for from
managers. We bet you people don’t have this problem.
FUNERALS
People are given points when they attend family funerals.
This is about as low as any company can get. This is dirty pe-
riod. Any funeral outside of a family is another story—you
should or can get a point for that, but not inside your own
family.
LOGBOOKS
Some drivers are being asked to fix their logbooks to make
extra runs. These drivers are being asked by dispatchers and
management to do these runs and either fix their logbooks or
turn their heads on it. Mr. John Cox once said he would not
go to jail for fixing logbooks for anyone. Well Mr. Cox pack
your suitcase, it has and is presently being done at 001.
INSURANCE
Our present insurance is the worst we have ever had and we
feel that TNT needs to make a change in that as soon as they
can—it is lousy.
These are just a few of the nasty things that are going on at
these contracts. We hope TNT will make management
changes at these contracts.
We the dock workers & drivers feel this needs to happen and
the point system modified for health, sickness, & funerals.
We realize that there are some bad apples in every group—
but don’t punish good workers or their families, and don’t let
these managers dictate their lives. TNT says they are family
oriented-prove it.
We just held the drivers re-bid meeting on the new routes and
this is what happened, to not one but several of the drivers.
When drivers went to bid on our new runs. Mr. Basinger told
these drivers these runs were already taken and he had other
runs for them.
One driver asked who took the run he wanted and Mr. Bas-
inger did not want to tell him who took it. But then asked
again and Mr. Basinger told him who got it and it turned out
to be one of his friends from a previous contract.
Mr. Basinger finally said he was entitled to take the route
since he had seniority over his friend. He in turn did get the
route. That is dirty of Mr. Basinger to keep trying to put his
friends & buddies in our jobs. We will not stand for this crap
and you can count on that!!!
One last thing on Mr. Basinger, a driver accidentally bumped
into him in the office & Mr. Basinger told the driver to excuse
himself and physically shoved the driver and hurt his shoulder
& is having trouble with it.
We all agreed that the driver should contact his attorney about
this matter and take certain action against Mr. Basinger. No
one should have to be treated like this. This man is going to
get hurt if he shoves the wrong person and it will be no ones
fault but his own if he gets hurt.
We are 90% of the workers at these two contracts. We are
together and have seeked outside help. We hope we can pre-
vent bringing in or having to be represented by an outside or-
ganization. But we will have no choice if this treatment con-
tinues.
Remove managers, Wheeler & Basinger. It is not all about
money, as it is working conditions such as no heat on the
dock in the winters. You put up a new office in Florida-we
bet it is heated and cooled both.
We the dock workers and drivers hope you will step in and
resolve this matter with the management problem at 006 &
001 East Liberty, Ohio.
We are sending copies of this letter to the following parties:
Dave Kulik President—TNT
Jeff Hurley V President—TNT
John Cox Safety Department—TNT
Scott Johnston Honda of America
Copies and information to 2 television stations in Columbus
Ohio to be aired at a later date if TNT Headquarters does not
resolve this situation.
Because no one wanted to sign the letter individually, the letter
indicated that it was sent from the dock workers and drivers at
the facility. This letter was addressed and sent to Richard Ku-
lik, Respondent’s president, Jeff Hurley, Respondent’s vice
president, John Cox, Respondent’s safety director, and Scott
Johnston, employed by Honda. Although Jolliff and Daniels
voiced complaints to Young concerning working conditions
before the letter was written, neither played any role in writing
or mailing the letter.
On August 21, District Manager Wheeler summoned Young
into Wheeler’s office. Wheeler asked if Young had problems
of any sort with management. Young answered that he did and
mentioned a problem the employees had with recent route as-
signments and disciplinary points assessed against employees.
Wheeler answered that there was nothing he could do about it;
the directions had come from “corporate.” They shook hands
and Young left.
The next day Jolliff was summoned to Wheeler’s office.
Kevin Schafer, a supervisor or manager on the cross-dock area,
was also present. Wheeler stated that a letter was sent to cor-
porate headquarters and to Honda. Wheeler explained that the
letter threatened Honda with bad news and media coverage.
The letter appeared to be on a table, but Jolliff was not allowed
to read it. Wheeler asked if Jolliff knew who wrote the letter.
Jolliff answered that it was the first time he had heard of the
letter. Jolliff explained at the trial that he feared retaliation if
he answered Wheeler’s question truthfully. Wheeler said that
he had reliable sources that reported that Jolliff had a part in
writing and sending the letter. Jolliff asked who the sources
TNT LOGISTICS NORTH AMERICA, INC. 575
were and Wheeler answered that it was the dock workers.
Wheeler asked again if Jolliff knew who sent the letter and
Jolliff again answered that he did not. Wheeler asked if Jolliff
had problems with Respondent; Jolliff replied that he did and
that Wheeler already knew about them. Wheeler said that he
wanted to hear about the problems, so Jolliff described his
problems with Basinger. Wheeler said that Jolliff was being
placed on suspension and that if the investigation did not find
any wrongdoing on his part he would be brought back to work.
Jolliff asked who was behind the suspension, and Wheeler said
that it was Jeff Hurley, Respondent’s vice president.6
That same day Young received a call in his truck to again re-
port to Wheeler’s office. As he was going to Wheeler’s office
Young encountered Jolliff. Young asked Jolliff what was go-
ing on and Jolliff explained that he had been suspended be-
cause of the letter that was sent to Respondent’s corporate
headquarters. Daniels joined the conversation. When Young
arrived in Wheeler’s office he discovered that Basinger and
Schafer were also present. Wheeler announced that he had
called Young to the office because of the letter that had been
sent to corporate office. Wheeler said that he had heard from a
reliable source, someone on the docks area, that Young had a
part in writing and sending the letter; he then asked Young if he
had a part in the letter. Young said the he did not. Wheeler
asked if Young knew anything about the letter. Wheeler ex-
plained that he brought Young into the office to terminate him.
He said that if Young could help him he could save Young’s
job with a short suspension instead of termination. Wheeler
asked what workers were talking about on the docks and
Young answered “Various things.” Wheeler asked like what?
Young responded “Like what assholes you three really are.”
Wheeler also asked what good a union would do for Young at
that point in his life. Young replied “Probably none.” Wheeler
then told Young to clean out his truck and that he was on ex-
tended suspension until further notice. Young had not revealed
his union sympathies to anyone in management prior to the
meeting.7
Daniels was the third person summoned into Wheeler’s of-
fice that day. Wheeler said that Daniels was involved in a letter
that was sent to corporate officials and to a supplier; he said
that he had reliable sources. Daniels asked to see the letter
because he did not know what Wheeler was talking about.
Wheeler held the letter in his hand but turned it upside down so
that Daniels could not read it. Daniels said that he had been
there a long time and had dealt with Wheeler. Wheeler said
that he did not believe that Daniels was involved with the letter.
Wheeler and Schafer, who was also present, went to the office
area a few minutes and then returned. Wheeler then announced
that Daniels was suspended until an investigation was com-
pleted. Wheeler assured Daniels that he would try and com-
plete the investigation quickly and if Daniels was cleared he

6 These facts are based on Jolliff’s credible testimony.
7 These facts are based on Young’s credible and largely uncontro-
verted testimony. To the extent that Wheeler’s testimony conflicts with
Young’s, I do not credit it. Wheeler’s version seemed incomplete and
his demeanor was uncertain.
would be brought back to work with full backpay.8 Daniels left
and Schafer followed him. After they discussed whether it was
necessary for Daniels to remove his personal items from his
truck, Schafer said that he would see Daniels in a few days.9
Respondent fired Young, Jolliff, and Daniels on August 26.
Their termination letters read:
On August 20, 2002 our customer Honda Manufacturing
North America received a letter signed by TNT Logistics
North America, Drivers and Dock Workers, East Liberty,
OH. The letter stated that management was mistreating em-
ployees, harassing employees and threatened the Customer
(Honda) that if they did not do something they would turn the
matter over to the local news stations (our customer is very
sensitive to bad media coverage). The letter also directly
threatened a Contract manager quote “This man is going to
get hurt if he shoves the wrong person and it will be no ones
fault but his own if he gets hurt.” This letter violates TNT
company policy 315-workplace violence. Also, sending a
threatening letter of this nature to our customer puts TNT’s
reputation in a bad light and additionally could lead to a loss
of business or failure to get new business and we can not tol-
erate that by any employee.
Our company has an open door policy and for an employee to
send a letter to our customer without contacting local man-
agement or Corporate Headquarters to work on their issues is
inexcusable. This act cannot and will not be tolerated by
TNT North America.
We have it on reliable sources that you had a part in the writ-
ing and sending of this letter to our customer. This act jeop-
ardized our entire operation and all employees’ livelihood at
this location.
As of today August 26, 2002 we are terminating your em-
ployment with TNT Logistics North America.
III. ANALYSIS
I first address the issue of the discharges. Section 7 of the
Act protects the right of employees to engage in concerted
activities designed to address working conditions. Activities
are concerted when they are by, or on behalf of, more than one
employee. Meyers Industries, 268 NLRB 493, 497 (1984)
remanded sub nom. Prill v. NLRB, 755 F. 2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985) (Meyers l), on remand,
Meyers Industries, 281 NLRB 882 (1986), enfd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988) (Meyers II). Here, the letter was clearly the prod-
uct of concerted activity. Many employees provided their con-
cerns to Young and agreed that he should send the letter as a
means of addressing those concerns. Respondent argues that
the employees’ activity was not concerted because “Young
acted without the knowledge and consent of other TNT em-

8 In his brief the General Counsel contends that Wheeler asked
Daniels if he had participated in sending the letter. I have examined the
transcript pages relied on by the General Counsel and conclude that this
contention is not supported by the record.
9 These facts are based on Daniel’s credible and uncontroverted tes-
timony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD576
ployees.” This assertion is simply contrary to the facts that I
have found as described above. Many employees voiced their
complaints to Young and agreed that sending a letter was the
appropriate vehicle of making Respondent aware of those con-
cerns. Respondent may be arguing that in order to be concerted
activity the actual letter had to be shown to other employees for
the approval. There is no support for such a constricted view of
concerted activity. It is enough that employees had input into
the letter and gave general approval to sending it.
An employer must also know of the concerted nature of the
activity. Here, the content of the letter clearly reveals its con-
certed nature. The letter indicated it was sent from the dock
and driver employees. Indeed, Respondent must have at least
suspected the concerted nature of the letter because it fired
three employees as a result. I conclude that the letter consti-
tuted concerted activity and Respondent was aware of its con-
certed nature. Oakes Machine Corp., 288 NLRB 456 (1988).
In its brief Respondent cites Compuware Corp. v. NLRB, 134
F.3d 1285, 1291 (6th Cir. 1998), and concedes that an em-
ployee has the right to engage in concerted communications to
a third-party customer, such as Honda of America, if the third-
party communications addresses legitimate employee concerns
such as terms and conditions of employment or employee
grievances. The letter sent to Honda by the employees fits
comfortably within that description. Respondent, however,
argues that parts of the letter did not deal with employee griev-
ances or terms and conditions of employment. More specifi-
cally, Respondent argues that the letter “contained a direct
threat of violence to Mr. Basinger.” I disagree. I have con-
cluded above that Basinger in fact has physical contact with
employees as he shoved them out of his way. In this context,
the letter was not threatening Basinger but was merely high-
lighting the conduct of Basinger that the employees found of-
fensive and was stressing the obvious—that some people may
react angrily to getting physical pushed around. Respondent
also argues that the letter lost the protection of the Act because
it contained broad criticisms of the managers of the facility.
But this was the core concern of the employees— that the man-
agers were not treating the employees fairly. Fair treatment by
management is as much a term and condition of employment
that may be addressed by concerted activity as wages and pen-
sions. Respondent’s citation to New River Industries v. NLRB,
945 F.2d 1290, 1294 (1991) is unpersuasive. In that case an
employee sent a letter that mocked the employer’s offer to give
employees a free ice cream cone. Here, the letter was an at-
tempt to address legitimate employee concerns. Respondent
also asserts that the employees sent a “scandalous letter full of
unfounded criticisms and unsupported allegations.” First, the
record in this case does not support this assertion. Second, the
test in determining whether employee statements lose the pro-
tection of the Act is not whether the assertions were unsup-
ported or unfounded, but rather whether they are maliciously
false. New River Industries v. NLRB, 945 F.2d 1290, 1294–
1295 (4th Cir. 1991). Respondent cites Shelly & Anderson
Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1203 (9th Cir.
1974). But in that case the court upheld the Board and con-
cluded that an employer violated the Act in unlawfully dis-
charging two employees who participated in a 15-minute pro-
test during working time. Respondent complains of the fact
that Honda was its largest customer at the facility and by send-
ing the letter to Honda the employees were treading on very
sensitive grounds. However, as the General Counsel points
out, the Board has held that “absent a malicious motive [an
employee’s] right to appeal to the public is not dependent on
the sensitivity of Respondent to his choice of forum.” Allied
Aviation Service, 248 NLRB 229, 231 (1980).
By discharging employees John Jolliff, Emerson Young, and
Steven Daniels because they engaged in, or because Respon-
dent believed that they engaged in, protected concerted activity,
Respondent violated Section 8(a)(1).
The General Counsel alleges that Respondent unlawfully
threatened to discharge an employee because he engaged in
union activity. I have concluded above that in early May Bas-
inger declared that Jolliff was prounion and Honda did not like
unions and that if Jolliff did not keep his mouth shut Wheeler
was going to fire Jolliff. By threatening to discharge an em-
ployee because of his union sympathies, Respondent violated
Section 8(a)(1).10
Next, the General Counsel contends that Respondent unlaw-
fully invited an employee to resign. During the same meeting
referred to in the previous paragraph, Basinger suggested that
Jolliff quit his employment with Respondent and work else-
where. This occurred in the context where Basinger had de-
clared that Jolliff was prounion and could be fired for that rea-
son. Thus, the invitation to resign was intertwined with
Jolliff’s perceived support for a union. By asking union sup-
porters to resign their employment if they are dissatisfied with
working conditions, Respondent violated Section 8(a)(1). Gen-
eral Fabrications Corp., 328 NLRB 1114 (1999).
The General Counsel contends that Respondent unlawfully
interrogated employees concerning their protected concerted
activities. As set forth above, on August 22 Wheeler ques-
tioned both Jolliff and Young about the letter. I have also con-
cluded above that the letter was concerted activity protected by
the Act. The Board has held that it is unlawful to coercively
interrogate employees concerning such activity. TPA, Inc., 337
NLRB 282 (2001). Here, the coercive nature of the question-
ing is clear: it was designed to procure information in order to
discipline the employees. By coercively interrogating employ-
ees concerning employees’ protected concerted activities, Re-
spondent violated Section 8(a)(1) of the Act.
The General Counsel contends that Respondent violated the
Act by unlawfully giving the impression to employees that their
protected concerted activities were under surveillance. As set
forth more fully above, on August 22 Wheeler told Jolliff,
Young, and Daniels that he learned from a reliable source that

10 Respondent’s brief does not address the 8(a) (1) allegations of the
complaint. Respondent has thus waived any argument that it may have
that this allegation is barred by Sec. 10 (b) of the Act. In any event the
evidence shows that the charge in Case 8–CA–33810–1 was served on
Respondent on November 6. Therefore conduct that occurred on or
after May 6 may be appropriately alleged to be unlawful. Here, Jolliff
testified that his meeting with Basinger occurred about a week after he
talked to Cox and the discussion with Cox occurred in late April or
early May. I conclude that a preponderance of the evidence shows that
Basinger’s comments occurred within the 10(b) period.
TNT LOGISTICS NORTH AMERICA, INC. 577
these employees had participated in the creation and sending of
the letter. The Board has held that an employer may not create
the impression that employees’ protected concerted activities
are under surveillance under circumstances that reasonably tend
to instill fear in employees for having engaged in those activi-
ties. Here, Respondent not only indicated to the three employ-
ees that it had been monitoring their lawful activity, but it did
so in order to procure information to be used to discipline them.
I conclude that Respondent violated Section 8(a)(1) by giving
the impression to employees that it was surveilling their pro-
tected concerted activity. Trade West Construction, Inc., 339
NLRB 12 (2003).
Finally, the General Counsel contends that Respondent vio-
lated the Act when it interrogated Young concerning his union
activities. I have described above how on August 22, Wheeler
asked what good a union would do for Young at that point in
his life. Young replied “Probably none.” Questioning an em-
ployee about his union activity is not a per se violation of the
Act. Rather, the questioning must be weighed against all rele-
vant circumstances to determine whether it was coercive.
Rossmore House, 269 NLRB 1176 (1984). On the one hand,
Wheeler’s questioning was of a general nature and Young’s
response to the question highlights this fact. On the other hand,
the questioning occurred in Wheeler’s office in the presence of
two other supervisors. As described above, it was accompanied
by another unlawful interrogation and was part of Young’s
unlawful termination. Also, Young had not revealed his recent
union activities to Respondent. Under these circumstances, I
conclude that Respondent violated Section 8(a)(1) by coer-
cively interrogating an employee concerning his union sympa-
thy and support.
CONCLUSIONS OF LAW
1. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By discharging employees John Jolliff, Emerson Young,
and Steven Daniels because they engaged in, or because Re-
spondent believed that they engaged in, protected concerted
activity, Respondent violated Section 8(a)(1).
3. Threatening to discharge an employee because of his un-
ion sympathies.
4. Asking union supporters to resign their employment if
they are dissatisfied with working conditions.
5. Coercively interrogating employees concerning employ-
ees’ protected concerted activities.
6. Giving the impression to employees that it was sur-
veilling their protected concerted activity.
7. Coercively interrogating an employee concerning his un-
ion sympathy and support.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having discriminatorily discharged John Jolliff, Emerson
Young, and Steven Daniels, Respondent must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the date of
discharge to the date of 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).
[Recommended Order omitted from publication.]