Watco Transloading LLC

National Labor Relations Board - Board Decisions

May 29, 2020

369 N.L.R.B. 93 (N.L.R.B. 2020)

369 NLRB No. 93
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.
Watco Transloading, LLC and United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Al-
lied Industrial and Service Workers Interna-
tional Union, AFL‒CIO, CLC, USW Local 10‒1
and Dennis Roscoe. Cases 04‒CA‒136562, 04‒
CA‒137372, 04‒CA‒138060, 04‒CA‒141264, 04‒
CA‒141614, and 04‒CA‒138265
May 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On April 5, 2017, Administrative Law Judge Susan A.
Flynn issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
and Charging Party Union filed answering briefs, and the
Respondent filed a reply brief. The General Counsel also
filed cross-exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief.
1 No party has excepted to the judge’s finding that, on August 25,
2014, the Respondent did not unlawfully interrogate employees, give the
impression of surveillance, or threaten employees with cessation of op-
erations at the Philadelphia facility. Nor were there exceptions to the
judge’s finding that the Respondent did not engage in the unlawful con-
duct alleged in the complaint to have occurred on August 28, including
unlawful interrogation, giving the impression of surveillance, urging em-
ployees to throw away union cards, and engaging in other unlawful so-
licitation and promises. There were also no exceptions to the judge’s
failure to find that the Respondent threatened employees, at an early Sep-
tember meeting, by telling them that it would lose its contract with the
Philadelphia facility refinery if a union were selected. However, there
were additional allegations of promises of benefits and solicitation oc-
curring in September 2014, which, as noted herein, we have found to
have merit.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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. In addition, some of the Respondent’s exceptions
imply that the judge’s rulings, findings, and conclusions demonstrate
bias and prejudice. On careful examination of the judge’s decision and
the entire record, we are satisfied that any such contentions are without
merit.
3 We shall modify the judge’s conclusions of law and recommended
Order to conform to the violations found and in accordance with our re-
cent decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68
(2020). The judge recommended a broad order requiring the Respondent
to cease and desist from violating the Act “in any other manner.” We
find that a broad order is not warranted to remedy the unfair labor
The National Labor Relations Board has considered the
decision and the record in light of the exceptions, cross-
exceptions,1 and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions only to the ex-
tent consistent with this Decision and Order.3
I. INTRODUCTION
We agree with the judge’s findings, for the reasons she
stated, that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act prior to a Board representa-
tion election by promising that it would try to secure a
raise for employees and that it would provide them sea-
sonal weather gear,4 and by purchasing lunch more fre-
quently for employees. We find that the Respondent did
not interrogate employees concerning their union sup-
port.5 However, we find that she erred by neglecting to
find that the Respondent violated Section 8(a)(1) of the
Act by soliciting grievances during the organizing cam-
paign.6
The judge also found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act when it discharged em-
ployee John D. Peters, and when, on separate occasions, it
issued written warnings to Dennis Roscoe, suspended
him, and discharged him. For the reasons discussed be-
low, we reverse these findings and dismiss all the
practices in this case, and we substitute a narrow order requiring the Re-
spondent to cease and desist from violating the Act “in any like or related
manner.” See Hickmott Foods, 242 NLRB 1357 (1979). We shall also
substitute a new notice to conform to the Order as modified.
4 The judge, in her conclusions of law and recommended Order, found
that the Respondent unlawfully promised rain gear and boot slips. How-
ever, the record made clear that winter gear and gloves were also prom-
ised.
5 The judge did not address this allegation, which we dismiss as fol-
lows. At a meeting with employees in September 2014, Manager Spiller
asked, “What are employee gripes and why would they want to bring the
union in?” This was followed by a freewheeling discussion of improve-
ments that employees sought to obtain through unionization. In context,
we find that Spiller’s inquiry was more in the nature of a “casual” dis-
cussion of employees’ interest in the union, see Rossmore House, 269
NLRB 1176, 1177 (1984), affd. sub nom. Hotel Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985), rather than a coercive interroga-
tion “calculated to elicit a response from employees concerning their un-
ion sympathies,” Beverly California Corp., 326 NLRB 153, 155 (1998),
enfd. in relevant part 227 F.3d 817 (7th Cir. 2000), cert. denied 533 U.S.
950 (2001).
6 The credited testimony of employee Matthew Horne established that
the Respondent unlawfully solicited grievances as alleged in the com-
plaint. He testified that, at a September 16, 2014 meeting, Terminal
Manager Brian Spiller asked employees “about the gripes that the
[e]mployees had with the Company and what he could do to resolve
them.” Taken in the context of an organizing campaign along with the
unlawful promises of weather gear at the same meeting and of a wage
raise at an earlier September meeting, Spiller’s inquiry would reasonably
lead employees to believe that the Respondent was implicitly promising
to remedy their grievances, thus suggesting that union representation was
unnecessary. Under these circumstances, the solicitation was unlawful.
DECISIONS OF THE NATIONAL LABOR RELATION BOARD2
complaint allegations pertaining to the discipline and dis-
charge of Peters and Roscoe.
Lastly, the judge dismissed the allegation that the Re-
spondent violated Section 8(a)(1) when Human Resources
Representative Brooke Beasley told Peters in a telephone
conversation that she was conducting a confidential inter-
nal investigation of his misconduct and that he was “for-
bidden to discuss any of this conversation with anyone.”
For the reasons discussed below, we affirm the judge’s
dismissal.
II.
A. The Discharge of Employee Peters
The Respondent is a rail-switching company that facil-
itates the transfer of railborne petroleum products at a
Philadelphia refinery. At the time of the relevant events
here, the Respondent employed approximately 21 em-
ployees at its Philadelphia operations. The Respondent
hired Peters as a locomotive engineer when it commenced
its Philadelphia operations in November 2013. He pos-
sessed a valuable skillset, as it was somewhat difficult to
recruit engineers.
In July 2014,7 Terminal Manager Brian Spiller warned
Shift Supervisor David Gordon that employees might seek
to form a union and said that Gordon should express to
employees his opposition to a union. Spiller noted that
Peters was pro-union and that Gordon should keep an eye
on Peters. Nonetheless, Spiller and Peters had a good re-
lationship, and Spiller valued Peters’ work. Notably, on
August 4, the Respondent hired Peters’ grandson, largely
on Peters’ recommendation.
Also on August 4, employee Curtis Pettiford emailed an
incident report to the Respondent’s corporate human re-
sources department8 in Pittsburg, Kansas, and to Opera-
tions Director Nathan Henderson9 (who was based in Hou-
ston), in which Pettiford complained, in detail, that, since
November 2013, Peters had “repeatedly” referred to Pet-
tiford, falsely, “as a homosexual.” Further, Pettiford
claimed that Peters had frequently called him a “faggot”—
including on one occasion interrupting conversations
among a group of coworkers to declare, “That guy is a
faggot”—and had continued falsely telling coworkers that
Pettiford was gay in spite of Pettiford’s strong objections.
In response to Pettiford’s complaint, he and Peters were
immediately placed on different shifts,10 and, on August 4
7 Unless otherwise noted, all dates stated hereafter are in 2014.
8 The Respondent also refers to its human resources department as
People Services.
9 To avoid confusion with Leroy Henderson, an employee (unrelated
to Nathan Henderson) at the Respondent’s Philadelphia facility, these
individuals will be referred to by their full names.
10 Beasley testified that Pettiford was advised of and satisfied with
the placement on different shifts as a short-term solution, but in his
and 5, Human Resources Representative Beasley inter-
viewed both employees by phone, along with four of their
coworkers. Two of the four coworkers corroborated Pet-
tiford’s claims that Peters had said Pettiford was gay. Alt-
hough one coworker suggested Peters may have said so
jokingly to Pettiford, the other stated that Peters had said
Pettiford was gay outside Pettiford’s presence.
In Pettiford’s interview with Beasley, he reiterated that
Peters had persisted in falsely calling him gay, both to him
and his coworkers, in spite of his protests. Pettiford also
claimed that when he and Peters were riding in a train cab
together, Peters often joked that Pettiford was rubbing or
“humping” against Peters’ leg deliberately.
In Peters’ interview with Beasley, he admitted solely to
mild joking with coworkers, other than Pettiford, about a
gay bar, and completely denied any comments to Pettiford
regarding his sexual orientation. According to Peters’
credited testimony, Beasley advised him that she was con-
ducting an interview about allegations against him and
told him that he was prohibited from discussing their con-
versation with anyone. Beasley reported the results of her
investigation directly to Operations Director Nathan Hen-
derson, as Terminal Manager Spiller was on vacation that
week. Spiller returned to work the next week, but Hen-
derson then went on vacation.
Two weeks after Beasley concluded her interviews, on
August 19, Beasley, Nathan Henderson, Spiller, and Hu-
man Resources Director Sofrana Howard held a confer-
ence call to discuss the Peters investigation. Two days
later, on the morning of August 21, Beasley booked a
flight from Kansas City to Philadelphia for August 25,
which she said was for the purpose of participating in Pe-
ters’ discharge. Also, on August 21, in the evening, a shift
supervisor observed Peters and Dennis Roscoe distrib-
uting union authorization cards in the parking lot.11
On August 25, Beasley flew to Philadelphia as planned,
arriving in the evening. While en route, she heard from
Spiller and Nathan Henderson about the union activity on
August 21. The following afternoon, Beasley participated
in a meeting, along with Terminal Manager Spiller, at
which Peters was discharged. Spiller gave Peters a dis-
charge memo stating that the reason for the discharge was
his violation of the Respondent’s sexual harassment pol-
icy, including unwelcome verbal or physical conduct of a
sexual nature creating an intimidating or hostile work
complaint he insisted on being transferred to a different facility as a long-
term solution. Beasley also testified that there were no transfer openings
for Pettiford at the time.
11 Despite some lack of clarity in her decision, the judge essentially
found that the Respondent’s suspicions, expressed in July, that Peters
was pro-union did not constitute knowledge of actual union activity by
him and that such knowledge was gained on the evening of August 21.
WATCO TRANSLOADING, LLC 3
environment. As planned, Beasley flew back to Kansas
City early the next morning. Peters filed an internal appeal
of the discharge, after which Beasley conducted additional
interviews with other employees, some of whom corrobo-
rated aspects of Pettiford’s allegations (specifically that
Peters had called Pettiford gay and “a faggot”). The ap-
peal was denied.
The judge found that the General Counsel met his initial
Wright Line12 burden of proving that Peters’ discharge
was motivated by union animus. She further found that
the Respondent failed to meet its defense burden of prov-
ing that it would have discharged him even in the absence
of his protected union activity. Her reasoning in support
of her findings was as follows.
The judge found that all of the evidence the Respondent
relied on to discharge Peters was available to it by August
5. She found the explanation for why the Respondent did
not actually discharge him until August 26 based on this
evidence to be “unpersuasive.” In particular, she con-
cluded that even though the Respondent took the immedi-
ate action of ensuring that Peters and Pettiford worked dif-
ferent shifts, it would not have delayed disciplining Peters,
or at least removing him from the workplace pending its
final determination, for an offense it deemed serious. The
judge also questioned the need to wait for Terminal Man-
ger Spiller to return from his vacation and to participate in
discussing the matter when Nathan Henderson, Spiller’s
boss, was apprised of the evidence and had the authority
to discharge Peters without consulting Spiller. Further,
while acknowledging that there was evidence of a phone
conference among the Respondent’s officials on August
19, the judge noted that there was no documentary corrob-
oration of the matters discussed, and she discredited the
“self-serving” testimony of Spiller, Beasley, and Howard
that the decision to discharge Peters was made then.13 She
further questioned why Peters was not discharged in the
week following this discussion and why it would be nec-
essary to wait for Beasley, a human resources representa-
tive, to be present at the discharge meeting when no rep-
resentative was present for Roscoe’s subsequent dis-
charge, discussed below. Further, even though, on the
12 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
13 The judge specifically referenced Respondent’s Exhibit 5, a
printout of an Outlook Calendar entry, as evidence that a teleconference
took place, but she failed to note the subject heading of this entry was
“JP Investigation discussion.” Beasley testified that “JP” was John Pe-
ters.
14 The General Counsel and the Union contend in answering briefs
that the Respondent’s harassment misconduct defense was pretextual,
and they further contend that Peters’ discharge constituted disparate
treatment when compared to the Respondent’s failure to take any disci-
plinary action against Leroy Henderson for sending a series of angry,
morning of August 21, before the Respondent learned of
Peters’ union activity later that day, Beasley made airline
reservations for a one-business-day trip from Kansas City
to Philadelphia and back, the judge noted the absence of
any testimony that Beasley discussed the Peters discharge
issue while waiting for her flight or at any time from her
arrival in Philadelphia until the meeting with Spiller and
Peters the next afternoon. Finally, the judge also ques-
tioned why Beasley conducted a follow-up investigation
of other witnesses in response to Peters’ appeal of his dis-
charge if the Respondent’s officials found the evidence
from her August 4–5 investigation sufficient to warrant
the discharge.
Without deciding the issue, we assume that the General
Counsel met his initial Wright Line burden of proving that
Peters’ union activity was a factor motivating his dis-
charge. Contrary to the judge, however, we find that the
Respondent did meet its defense burden of proving that it
would have discharged Peters even absent his union activ-
ity.14 In reaching this conclusion, we acknowledge that
the timing of Peters’ actual discharge soon after his card
distribution for the Union warrants close scrutiny and that
not every piece of evidence necessarily weighs entirely in
the Respondent’s favor. Nevertheless, “it is to be remem-
bered that Respondent is required to establish its Wright
Line defense only by a preponderance of the evidence.
The Respondent’s defense does not fail simply because
not all the evidence supports it, or even because some ev-
idence tends to negate it.” Merillat Industries, 307 NLRB
1301, 1303 (1992) (footnote omitted).
Here, the Respondent provided a coherent and rational
account of its investigation, internal discussions, and de-
cision to discharge Peters based on his homophobic sexual
harassment of Pettiford. Notably, the judge did not credit
Peters’ denial that he engaged in this misconduct. Instead,
she found the Respondent’s defense to be “unpersuasive.”
She based this finding on unfounded speculation and un-
warranted inferences, lacking any support in record evi-
dence, that each of the Respondent’s actions leading to the
discharge was somehow not what it was purported to be.
She essentially surmised that Peters should have been
vulgar text messages to Peters on August 1. We note, however, that the
judge did not find that the Respondent’s defense of Peters’ discharge was
pretextual or that it involved disparate treatment, and neither the General
Counsel nor the Union excepted to the judge’s failure to so find. Even if
there were exceptions, we would find the argument to be without merit.
In particular, Leroy Henderson’s opprobrious statements were sent in a
single evening’s sequence of text messages from off-site and amounted
to a largely incoherent ramble. They were not comparable to what Pet-
tiford described as Peters’ sustained and repeated in-person remarks in
the workplace concerning Pettiford’s sexual orientation, over his strong
protests, along with homophobic slurs in the presence of co-workers.
DECISIONS OF THE NATIONAL LABOR RELATION BOARD4
discharged soon after Beasley completed her early August
investigation, or not at all; that the August 19 teleconfer-
ence was of no consequence in the determination of how
to deal with Peters’ misconduct; that a decision was made
to discharge Peters only after the Respondent became
aware of his union card solicitation activity on August 21;
that Beasley’s presence in Philadelphia on August 26 was
mere happenstance that permitted Spiller to use it as a pro-
cedural gloss at the discharge meeting; and that Beasley
engaged in her renewed investigatory effort to secure post
hoc justification for the discharge.
We find the judge impermissibly imposed her own
judgment as to how and when the Respondent should have
conducted the investigation and discharge of Peters. The
possibility that the Respondent’s officials could have done
certain things differently at different times does not vitiate
the legitimacy of the actions taken. There is no evidence
whatsoever that the Respondent deviated from a past prac-
tice with respect to the investigation and discharge of an
employee accused of engaging in prohibited sexual har-
assment. Although inherent improbabilities in a respond-
ent’s account can cast doubt on it, here (and in Roscoe’s
suspension and discharge as well, as we will discuss) the
Respondent’s actions were triggered by independent em-
ployee reports of serious misconduct, which the Respond-
ent investigated with reasonable diligence, and its han-
dling of the discipline did not manifest any irregularities
improbable and compelling enough to cast doubt on this
straightforward narrative of events. On the contrary, the
judge’s alternative analysis is rife with improbabilities,
not the least of which are that there was no need to wait
for Terminal Manager Spiller to join in addressing this
misconduct at his facility, that Beasley’s scheduling of an
otherwise-unexplained one-business-day round trip from
Kansas City to Philadelphia had nothing to do with Peters’
situation, and that her subsequent investigation of addi-
tional witnesses was something other than a routine pro-
cedural response to Peters’ internal appeal of his dis-
charge.
In sum, we find, contrary to the judge, that the Respond-
ent proved that its actions here were consistent with a bona
fide effort to determine the validity of serious allegations
against Peters, an otherwise valued employee, and to dis-
cipline him for misconduct.15 As a result, the Respondent
has met its Wright Line defense burden to establish that it
would have discharged Peters for his misconduct notwith-
standing the coincidence of his union activity. Accord-
ingly, we will dismiss the complaint allegation that the
discharge was unlawful.
15 See Park N Fly, Inc., 349 NLRB 132, 136 (2007) (reasonably “thor-
ough[] investigat[ion] [of sexual harassment] complaint . . . [t]hat . . .
B. The Discipline and Discharge of Employee Roscoe
1. The August 21 written warnings
The Respondent hired Roscoe as a car man, a job in-
specting and repairing rail cars, in April 2014. On July 29,
Roscoe gave Terminal Manager Spiller a letter in which
he complained that African American car men were not
being given promotion opportunities. Specifically, he
pointed to the noncompetitive promotion of Mike Onus-
kanych, a white employee; and to the hiring of Joe and
Kevin Onuskanych, Mike’s sons, at the same rate of pay
as experienced African American employees, despite the
Onuskanych brothers’ lack of experience. The following
day, Spiller had a conversation with Roscoe and two other
African American car men in which he sought to explain
the Onuskanych promotion and promised future opportu-
nities. There were no further complaints to Spiller on this
matter.
On August 6, after witnessing Shift Supervisor Joe Ry-
der and Mike Onuskanych smoking in a no-smoking area
where flammable material was present, Roscoe made a
safety complaint to Shift Supervisor Gary Plotts. Roscoe
subsequently made the same report to the refinery safety
coordinator and to Terminal Manager Spiller. He would
later email Human Resources Representative Beasley
about the matter, indicating that Mike Onuskanych and his
two sons were smoking in a no-smoking area, and also that
Ryder was harassing Roscoe for reporting the violation.
Beasley spoke to Spiller, who in turn spoke to the involved
parties and posted a notice concerning smoking areas.
Spiller testified that on August 15, he observed that
Roscoe remained in the work crew trailer even though a
train was ready for inspection, which Roscoe was required
to do promptly. Spiller further testified that he told Shift
Supervisor Ryder to make sure Roscoe did not get any
overtime since he had caused a delay in completing his
work on the train. Finally, Spiller testified that Ryder later
reported that Roscoe worked beyond his shift, failed to re-
spond to initial attempts to contact him, resisted Ryder’s
directions to stop work, and stayed on site even after fin-
ishing work despite Ryder’s directions to go home.
On August 21, on Spiller’s instructions, Ryder issued
Roscoe two written warnings: one for insubordination for
failing to timely conclude his work and thereby avoid an
alleged 2½-hour overtime charge and a second for failing
to properly perform his work duties. However, the judge
found the reasons asserted for the discipline were false,
based on Roscoe’s credited testimony that he followed
normal practice by awaiting the usual notification that the
train was ready for inspection before he went to work on
disclosed substantial evidence [of misconduct]” met respondent’s af-
firmative defense burden).
WATCO TRANSLOADING, LLC 5
it, and that, with Ryder’s permission, he only worked and
claimed one overtime hour to complete his work, although
he remained on site for another unpaid hour or so.
The judge found that the written warnings issued to
Roscoe on August 21 violated Section 8(a)(1).16 She sum-
marily stated, without explanation, that both his complaint
about race discrimination and his antismoking activity
constituted protected concerted activity. She further
found that the Respondent was aware of these complaints
and, based on Roscoe’s credited version of events, that the
facts asserted in the warnings were false. Then, without
further explanation, she concluded that the General Coun-
sel had met his burden of proof, and the Respondent did
not meet its burden of proving that it would have warned
Roscoe in the absence of his protected concerted activity.
Even accepting the judge’s credibility finding with re-
spect to what happened on August 15, we disagree with
her that the General Counsel met his initial Wright Line
burden of proving that the warnings were motivated by
animus against protected concerted activity. First, we find
that the judge erred in finding that Roscoe’s smoking
safety complaints were concerted. The General Counsel
did not allege that they were concerted, and there is no
evidence that Roscoe discussed the matter with co-work-
ers or that he was attempting to initiate group action. Con-
sequently, even if the written warnings were motivated by
animus against this activity, there would be no violation
of the Act. Second, while we agree that Roscoe’s July 29
complaint concerning the treatment and promotion of Af-
rican-American employees involved protected concerted
activity, and that the Respondent recognized it as such,
there is no evidence of any hostility or any negative reac-
tion by Spiller or any of the Respondent’s other officials
to this complaint. Spiller promptly discussed the discrim-
ination complaint with Roscoe and his co-workers, there
is no evidence that he expressed any animosity about the
complaint during this discussion, and that was apparently
the end of the matter. Under these circumstances, we find
that the General Counsel has failed to meet his initial
Wright Line burden to show that Roscoe’s August 21
warnings were based on protected conduct, and we will
dismiss the complaint allegation based on this discipline.
2. Roscoe’s September 23 suspension
As noted previously, on the evening of August 21, Re-
spondent’s officials observed Roscoe and Peters in the
parking lot distributing authorization cards. The Union
16 As noted in the General Counsel’s cross-exceptions, the judge erred
in finding that the warnings also violated Sec. 8(a)(3). We agree, inas-
much as the credited evidence shows that the Respondent did not know
of any union activity by Roscoe until his distribution of union cards later
on August 21. We also note, however, that the General Counsel
subsequently filed a Board election petition, and the par-
ties agreed on an October 3 election date.
During the morning shift start on September 23, Roscoe
confronted Joe Onuskanych, who was not scheduled for
duty but had been called in to work overtime. As de-
scribed below, subsequent witness accounts vary as to the
details of what took place. However, it is undisputed that
Roscoe told Onuskanych that his presence was unneces-
sary as there was no work for him to do, and he threatened
to call human resources to advise them that Onuskanych
was needlessly being allowed to work. This encounter led
to another involving Roscoe and Shift Supervisor Brandon
Lockley, who attempted to get Roscoe to return to work.
Lockley later spoke to Terminal Manager Spiller con-
cerning what Lockley viewed as Roscoe’s disruptive and
insubordinate behavior. Spiller in turn spoke by phone
with both Director of Operations Nathan Henderson and
Human Resources Director Howard. Later that day,
Spiller suspended Roscoe pending an investigation of his
alleged misconduct. At Howard’s request, Spiller also
took written statements regarding the incident that were
forwarded to human resources.
Howard traveled to the facility to conduct additional in-
vestigative interviews. The statements taken by Spiller
and Howard did not provide any consensus version of the
exchange between Roscoe and Joe Onuskanych. The lat-
ter, corroborated by his father Mike, stated that Roscoe
told him that Joe only got his job because his father
“sucked management’s dick” and that Roscoe made a cor-
responding obscene gesture. John C. Peters Jr. (Peters’
grandson) did not mention that he heard the graphic sexual
insult or observed the gesture, but he did state that Roscoe
started a loud and heated argument. Other employees
heard nothing objectionable in the exchange between Ros-
coe and Joe Onuskanych. Matthew Horne stated that Ros-
coe asked Joe Onuskanych why he was there, adding that
Onuskanych “took it wrong,” although he did confirm that
Roscoe told Joe Onuskanych that he had a job at the Re-
spondent only because of his dad. Another employee said
Onuskanych was hostile.
With respect to the second confrontation on September
23, Shift Supervisor Lockley stated that Roscoe refused
multiple times to go to his assigned duties despite Lock-
ley’s instructions to do so. When Lockley said he would
have to send Roscoe home and call someone else in to do
the job, Roscoe asked if Lockley was threatening him.
Roscoe then told Lockley that he didn’t “have the balls”
confusingly contended in his post-hearing brief to the judge that the
warnings were issued in retaliation against union activity in violation of
Sec. 8(a)(3), rather than in retaliation against any other protected con-
certed activity in violation of Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATION BOARD6
to send him home, while clapping his hands and speaking
in a raised voice. Peters Junior, in his witness statement,
observed that Lockley intervened to “calm Roscoe down”
when the “shouting” between Roscoe and Onuskanych got
“a little out of control,” but Lockley’s effort only “added
fuel to the fire” and led to “another minute or two of shout-
ing.”17
Howard telephoned Roscoe on September 25 for his
version of the events. According to her, she first asked
Roscoe what happened on September 23. Roscoe replied
that nothing happened, only that he was waiting to give a
paper to Brian Spiller. When Howard asked a follow-up
question about this, Roscoe said he did not feel comforta-
ble answering her questions and was referring her to his
lawyer, whom he did not identify. Then Roscoe hung up.
After reviewing the investigative findings, in which
Howard found that Roscoe had acted inappropriately to-
ward Joe Onuskanych and insubordinately toward Lock-
ley, Director of Operations Henderson and Terminal Man-
ager Spiller confirmed Roscoe’s suspension. On October
2, the day before the election, the Respondent gave Ros-
coe a letter, dated October 1 and signed by Spiller, con-
firming that he was officially suspended for 14 days, da-
ting from September 23. Roscoe was also given a final
warning and placed on a performance improvement plan.
The letter cited the confrontation with Joe Onuskanych,
wherein witnesses stated he made inappropriate gestures
of a sexual nature, and the insubordination toward Lock-
ley. The letter also noted that during the investigation of
these incidents Roscoe was “uncooperative and refused to
provide any statement, stating ‘nothing happened.’” Fi-
nally, the letter stated that in determining the level of dis-
cipline to be imposed, Roscoe’s prior written warnings is-
sued on August 21, including one for insubordination,
were taken into account.
The judge found that the General Counsel carried his
initial Wright Line burden of proving that Roscoe’s sus-
pension was motivated by his union activity. She further
found that the Respondent’s reliance on alleged miscon-
duct for the suspension was pretextual. Accordingly, she
concluded that the suspension was unlawful. We again
assume, without deciding, that the General Counsel met
the initial Wright Line burden of proof. However, we dis-
agree that the Respondent’s defense was pretextual. In-
stead, we find that the Respondent has established that it
would have suspended Roscoe even in the absence of his
protected union conduct.
17 Peters Junior further corroborated Lockley’s account in his trial
testimony, agreeing that Roscoe told Lockley he didn’t “have the balls”
to send him home.
18 The judge did not explain her reasons for this finding.
Roscoe’s 14-day suspension for the events of Septem-
ber 23 was based on varying witness accounts of miscon-
duct by Roscoe involving confrontational behavior, vul-
garity, and insubordination. The judge, however, rea-
soned that the suspension and the determination of its
length were based in part on a finding that Roscoe made
an obscene sexual gesture in his confrontation with Joe
Onuskanych. She found that the Respondent did not have
a good-faith belief that this occurred because Joe’s father
Mike was the only other witness interviewed who specifi-
cally corroborated Joe’s allegation that the gesture was
made, and she found it was not clear whether Mike was an
actual witness to this incident.18 The judge further opined
that the Respondent failed to explain why its officials
credited what she then characterized as an uncorroborated
witness statement over Roscoe’s denial. She found it rel-
evant that Roscoe denied under oath at the hearing that he
made an obscene gesture and that the Respondent relied
only on contrary hearsay evidence, failing to call Joe
Onuskanych to testify. Consequently, the judge con-
cluded that the Respondent relied on the September 23 in-
cidents as a pretext to ensure that Roscoe was on suspen-
sion at the time of the representation election.
The judge’s analysis misleadingly focuses on only one
aspect of the September 23 incidents and is based on a
mistaken view of how the Respondent’s good-faith reli-
ance on contemporaneous witness statements should be
evaluated. At a minimum, the Respondent’s investigation
produced evidence that Roscoe, who had no authority over
Joe Onuskanych, initiated an officious confrontation with
him about his presence at the job site and that the confron-
tation was both loud and angry. The investigation also
produced evidence that Roscoe subsequently engaged in
insubordinate conduct with Supervisor Lockley, refusing
to obey Lockley’s directions to return to work, challeng-
ing Lockley’s authority to send him home by asking Lock-
ley if he was threatening him, and saying that Lockley
“didn’t have the balls” to send him home if he did not re-
turn to work. The judge barely discussed the latter en-
counter and gave the evidence of Roscoe’s insubordina-
tion no consideration in her analysis of whether the Re-
spondent had a good-faith basis for imposing the 14-day
suspension and related discipline.
Furthermore, the judge erred in relying on the fact that
Roscoe testified at the hearing in this case but none of the
other witnesses testified.19 Her analysis completely
misses the point. The issue of the Respondent’s good-
faith belief must be determined by whether it had a
19 We note that the judge was also mistaken that no other witness
testified. She failed to acknowledge that Peters Junior did testify and
confirmed that Roscoe told Supervisor Lockley that he didn’t “have the
balls” to send him home.
WATCO TRANSLOADING, LLC 7
reasonable basis to impose discipline when it did, not
months later when Roscoe testified about the events of
September 23 at the hearing. In fact, the judge’s reasoning
for crediting Roscoe—that he testified at the hearing when
other witnesses did not—fails to acknowledge that at the
critical time of the Respondent’s investigation and impo-
sition of discipline, the opposite was true. While the other
witnesses provided specific statements about what hap-
pened on September 23, Roscoe declined to cooperate in
the investigation, stating only that “nothing happened”
and terminating his conversation with Howard before she
could ask for any details that could be weighed against
other witness accounts. Simply put, there is no apparent
reason why the Respondent, at that earlier time, should
have found Roscoe to be inherently credible and all other
witness versions of what transpired to be untrustworthy.
We also note that the discipline imposed, including the
length of the suspension, is consistent with the Respond-
ent’s handbook provisions for the misconduct substanti-
ated by the investigation. In addition, we find that the Re-
spondent legitimately relied on Roscoe’s August 21 warn-
ings in determining the level of discipline. As previously
discussed, we have reversed the judge and found these
warnings were lawful. Thus, although Roscoe was a visi-
ble union supporter and the timing of his suspension
closely coincided with the representation election, we find
that the Respondent legitimately relied on evidence of
Roscoe’s serious misconduct to discipline him and that it
would have imposed this discipline even in the absence of
his union activity. Accordingly, we will dismiss the com-
plaint allegation based on this discipline.
3. Roscoe’s October 10 discharge
The Board election was conducted on October 3 and 4.
The Union did not receive a majority of votes, there were
no objections to the conduct of the election, and a certifi-
cation of results issued. Roscoe voted in the election while
still on suspension, which ended on October 6. He re-
turned to work on October 7 or 8.
On October 9, Leroy Henderson called Director of Op-
erations Nathan Henderson and Human Resources Direc-
tor Howard to report that Roscoe had earlier that day
pulled his car alongside Leroy Henderson’s car near the
refinery entrance gate and began cursing and threatening
him. As requested, Leroy Henderson provided a written
statement about the incident, as did his passenger, Sabrina
Harris, a security officer for the refinery. Those state-
ments asserted that Roscoe called Leroy Henderson a
“punk mother fucking bitch” (or, according to Harris, “a
20 Unlike her analysis of Roscoe’s suspension, the judge did not ex-
pressly find the Respondent’s defense to be pretextual. It is unclear
whether that was her intent.
Punk Ass Pussy”). Both witnesses generally stated that
Roscoe told Leroy Henderson he knew where Henderson
lived and that Henderson had better watch out for his two
little girls, since they had a drug addict for a father. On
October 10, Spiller and Nathan Henderson decided to dis-
charge Roscoe without asking him for his version of
events. A discharge notice was emailed to him, stating
that he had “engaged in a verbal altercation with a fellow
Team Member, wherein witnesses provided testimony
that you made threatening comments” that warranted dis-
charge under the Respondent’s rules of conduct. The let-
ter further stated that the determination to discharge Ros-
coe took into account his prior disciplinary history, specif-
ically including the August 21 warnings and the Septem-
ber 23 final warning.
The judge implicitly found, without so stating, that the
General Counsel met his initial Wright Line burden of
proving that Roscoe’s union activity motivated the dis-
charge. She also found that the Respondent failed to prove
that it would have relied on the alleged October 9 incident
to discharge him in the absence of animus towards his un-
ion activities.20 The judge acknowledged that Leroy Hen-
derson and Harris gave almost identical statements about
the incident, but noted that neither of them contacted the
police about it. Noting that neither Henderson nor Harris
testified at the hearing in this case, the judge found that
Roscoe credibly testified under oath that there was no con-
frontation with Leroy Henderson. The judge therefore ob-
served that there was no explanation why the Respond-
ent’s officials took Leroy Henderson’s accusation at face
value. She also noted that Harris had failed to identify
Roscoe as the protagonist. The judge concluded that the
Respondent did not have a good-faith belief that Roscoe
had cursed at and threatened Leroy Henderson when it dis-
charged him and, moreover, that the discharge was tainted
by what she had found to be his prior unlawful suspension.
Once again, we find numerous shortcomings in the
judge’s analysis. First, her passing attempts to undercut
the weight of consistent statements by Leroy Henderson
and Harris about the encounter with Roscoe are, to use the
judge’s own term, unpersuasive. There is nothing suspect
about the fact that Harris, who was not employed by the
Respondent, did not identify Leroy Henderson by name.
Her description of what happened in an encounter with
“other Watco personnel” substantially corroborated the
serious misconduct that Leroy Henderson attributed by
name to Roscoe. It is clear from the record that the two
employees worked together in the same small work force
and would readily recognize each other. Further, while
DECISIONS OF THE NATIONAL LABOR RELATION BOARD8
neither Leroy Henderson nor Harris contacted police,
Leroy Henderson did immediately contact Respondent’s
senior management to express his concern about the inci-
dent. Finally, it is difficult to reconcile the judge’s nit-
picking the reliability of those two witnesses when she
found it only “curious” in her decision that Roscoe denied
any encounter with Henderson on October 9, even though
he acknowledged in his testimony that he stated in a Board
investigatory affidavit that there was a confrontation, but
Henderson did all the yelling and cursing.
We also find no significance in the fact that the Re-
spondent’s officials did not attempt to get Roscoe’s ver-
sion of events prior to discharging him. The judge failed
to recognize that when the Respondent attempted to get
Roscoe’s account of the September 23 incidents, Roscoe
had simply denied that anything happened and hung up on
the investigator. After that, it would not be unreasonable
for the Respondent’s officials to believe they had little to
gain by interviewing him about the alleged October 9 in-
cident before taking action based on the statements pro-
vided by Leroy Henderson and Harris. Moreover, we note
that Roscoe’s termination letter provided Roscoe with a
post-discharge right to appeal the decision and provide his
version of events. There is no evidence that he did so.
In sum, on October 9, Leroy Henderson immediately re-
ported to the Respondent’s officials that there had been a
disturbing incident earlier that day in which Roscoe drove
up next to Henderson’s car and, sua sponte, began cursing
at him and making threats, including a threat involving the
welfare of Henderson’s children. Within a day, the Re-
spondent’s officials had mutually corroborative accounts
from two witnesses describing Roscoe’s serious miscon-
duct, occurring only a day or two after his return from sus-
pension for serious misconduct in prior encounters with a
co-worker and a supervisor. At bottom, we simply disa-
gree with the judge that the preponderance of evidence
shows the Respondent did not have a sufficient good-faith
belief that Roscoe had committed a dischargeable offense.
We find that the Respondent legitimately relied on that
good-faith belief to discharge Roscoe and that it would
have taken the same action even in the absence of his un-
ion activity. Accordingly, we will dismiss the complaint
allegation that the discharge was unlawful.
21 368 NLRB No. 144 (2019).
22 Banner Estrella Medical Center, 362 NLRB 1108, 1109‒1110
(2015).
23 Boeing Category 1(b) includes the types of rules that the Board has
designated as lawful to maintain because the justifications associated
with such rules predictably outweigh their potential adverse impact on
employees’ exercise of their protected rights under the NLRA. See, e.g.,
LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2 & fn. 2 (2019).
III. THE INSTRUCTION THAT PETERS NOT DISCUSS HIS
INTERVIEW
As discussed above, during Human Resources Repre-
sentative Beasley’s telephone interview with Peters on
August 5 about the Pettiford allegations, Beasley told Pe-
ters that the Respondent “was conducting a confidential
internal investigation” and that Peters “was absolutely for-
bidden to discuss any of this conversation with anyone.”
The judge found that this confidentiality instruction did
not violate Section 8(a)(1) of the Act because the Re-
spondent’s legitimate justification for requiring confiden-
tiality was “patently obvious.” We adopt the judge’s rec-
ommendation to dismiss this allegation, but we do so on
the basis of Apogee Retail LLC d/b/a Unique Thrift
Store,21 which was decided after the judge issued her de-
cision in this case.
In Apogee, the Board overruled precedent holding that
an employer could lawfully restrict discussion of ongoing
confidentiality investigations only where it made a partic-
ularized showing of a substantial and legitimate business
justification outweighing employees’ Section 7 rights.22
Instead, the Board held that investigative confidentiality
rules that by their terms apply only for the duration of any
investigation are categorically lawful under the analytical
framework set forth in Boeing Company, 365 NLRB No.
154 (2017). Specifically, the Board found that “justifica-
tions associated with investigative confidentiality rules
applicable to open investigations will predictably out-
weigh the comparatively slight potential of such rules to
interfere with the exercise of Section 7 rights.” 368 NLRB
No. 144, slip op. at 8. Accordingly, the Board held that
investigative confidentiality rules limited to open investi-
gations fall into Boeing Category 1(b).23 The Board fur-
ther stated in Apogee that its holding “does not extend to
rules that would apply to nonparticipants [in an investiga-
tion], or that would prohibit employees—participants and
nonparticipants alike—from discussing the event or events
giving rise to an investigation (provided that participants
do not disclose information they either learned or provided
in the course of the investigation).” Id., slip op. at 2 fn. 3.
Applying Apogee, we find that Beasley’s confidential-
ity instruction to Peters did not violate the Act.24 Beasley
orally instructed Peters not to discuss their interview con-
versation with anyone. There is no record evidence that
24 We recognize that the evidence about Beasley’s direction to Peters
does not show that it was a “rule” under Board precedent. See, e.g.,
Shamrock Foods Co., 366 NLRB No. 117, slip op. 2 fn.10 (2018) (find-
ing that an oral direction to one employee did not constitute the promul-
gation of a rule). However, the analysis set forth in Apogee is applicable
to an employer’s one-on-one confidentiality instruction to an employee
in all respects except one. We address that one respect in fn. 25, below.
WATCO TRANSLOADING, LLC 9
this instruction was not limited to the term of the investi-
gation of the Pettiford allegations, which concluded with
the denial of Peters’ appeal of his discharge. Moreover,
the reason given by the Respondent and relied on by the
judge for not finding a violation—that there was a risk of
employees’ coordinating their stories or suggesting help-
ful interview answers to others—naturally would apply
only while the investigation remained active, and we be-
lieve this reason and the corresponding durational limit of
the instruction would have been apparent to Peters under
the circumstances.25 There is also no evidence or allega-
tion that the confidentiality ban extended beyond discus-
sion of the interview and what was said there. Peters’
credited testimony about what Beasley said did not sug-
gest that her statement applied to anyone but Peters or that
it prohibited even him from discussing the incidents that
gave rise to the investigation. Accordingly, for the reasons
stated, we will affirm the judge’s dismissal of this com-
plaint allegation.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s conclusions of
law.
1. The Respondent, Watco Transloading, LLC, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent, by Brian Spiller, violated Section
8(a)(1) in early September 2014 by promising benefits to
employees, including a pay raise, rain gear and boot slips,
and winter gear and gloves, during the critical period be-
tween the filing of an election petition and the holding of
an election.
3. The Respondent violated Section 8(a)(1) in Septem-
ber 2014 by buying lunch for employees on a more fre-
quent basis during the critical period between the filing of
an election petition and the holding of an election.
4. The Respondent, by Brian Spiller, violated Section
8(a)(1) on September 16, 2014 by soliciting employee
grievances during a union organizing campaign.
25 In Apogee, we found that employees would reasonably interpret an
investigative confidentiality policy that is silent with regard to the dura-
tion of the confidentiality requirement not to be limited to open investi-
gations. 368 NLRB No. 144, slip op. at 9. There, however, we were
articulating a standard for evaluating the lawfulness of written investiga-
tive confidentiality policies on their face—not, as here, with an oral con-
fidentiality instruction issued in, and limited to, a single, specific inves-
tigation. Peters was presented with an instruction embedded in a partic-
ular set of circumstances, which reasonably would have informed him
that Beasley’s concern was to prevent Peters from attempting to persuade
other employees to corroborate his story—a concern that would cease to
apply once the investigation had ended. In this context, therefore, we
find it reasonable to take these circumstances into consideration in deter-
mining what Peters would have reasonably understood concerning the
duration of required confidentiality.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Watco Transloading, LLC, Philadelphia, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising higher wages, weather gear, or other ben-
efits to employees to dissuade them from supporting a un-
ion.
(b) Purchasing lunches for employees more frequently
or otherwise granting benefits to employees to dissuade
them from supporting a union.
(c) Soliciting grievances from employees and impliedly
promising to remedy them to dissuade employees from
supporting a union.
(d) 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) Post at its Philadelphia, Pennsylvania facility copies
of the attached notice marked “Appendix.”26 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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. Rea-
sonable steps shall be taken by the Respondent 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 current employees and former
26 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATION BOARD10
employees employed by the Respondent at any time since
September 1, 2014.
(b) Within 21 days after service by the Region, file with
the Regional Director for Region 4 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. May 29, 2020
______________________________________
John F. Ring, Chairman
______________________________________
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 vi-
olated 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
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT promise higher wages, weather gear, or
other benefits to you to dissuade you from supporting a
union.
WE WILL NOT purchase lunches for you more frequently
or otherwise grant benefits to you to dissuade you from
supporting a union.
WE WILL NOT solicit grievances from you and impliedly
promise to remedy them to dissuade you from supporting
a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WATCO TRANSLOADING, LLC
The Board’s decision can be found at
http://www.nlrb.gov/case/04-CA-136562 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.
David Faye, Esq., for the General Counsel.
Anthony B. Byergo and Julie A. Donahue, Esqs. (Ogletree Dea-
kins, Nash, Smoak & Stewart, P.C.), for the Respondent.
Michael W. McGurrin, Esq. (Galfand & Berger, LLP), for the
Charging Party Local 10‒1.
Richard J. Albanese, Esq. (Karpf, Karpf & Cerutti, P.C.), for the
Charging Party Dennis Roscoe.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, ADMINISTRATIVE LAW JUDGE. This case
was tried in Philadelphia, Pennsylvania, on October 20‒22 and
December 2, 2015. Local 10‒1 filed five charges between Sep-
tember 11, and November 25, 2014. Dennis Roscoe filed his
charge on October 7, 2014. The General Counsel issued the con-
solidated complaint on December 18, 2014. The Respondent
filed an answer on January 2, 1015, denying all material allega-
tions. An amended complaint was issued on February 11, 2015.
At the beginning of the trial, I granted the General Counsel’s
motion to amend the complaint to correct typographical errors.
The General Counsel alleges that Respondent committed numer-
ous violations of Section 8(a)(1) of the Act as follows: Human
Resource Manager Brooke Beasley prohibited an employee from
discussing her interview with him; Watco Terminal Manager
Brian Spiller violated the Act on several different occasions by:
threatening employees if they selected union representation, so-
liciting grievances and granting benefits to discourage support
for the Charging Party Union; promising employees improved
wages and working conditions to discourage support for the Un-
ion and interrogating employees about their union sympathies.
The General Counsel also alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by terminating John D. Peters
WATCO TRANSLOADING, LLC 11
on August 26, 2014, and by disciplining Dennis Roscoe on sev-
eral occasions and then terminating Roscoe on October 10, 2014.
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
The Respondent, a Delaware corporation, provides rail
switching services for industrial customers at 21 locations
throughout the United States, including the facility at issue in
this case in Philadelphia, Pennsylvania, where it employs 21 peo-
ple. In Philadelphia, the Respondent services a petroleum refin-
ery operated by Philadelphia Energy Solutions (PES). In 2014,
the Respondent purchased and received goods valued in excess
of $50,000 at the PES facility directly from points outside of
Pennsylvania. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union, Steelworkers Local
10‒1, is a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent began its operations at the PES Philadelphia
refinery on October 17, 2013. Watco is a contractor at this facil-
ity, transferring petroleum products. CSX trains, consisting of
100‒120 cars loaded with crude oil, arrive at the facility. Once
the trains are on PES property, Watco employees take over, op-
erating the train locomotives and inspecting the rail cars. The
Watco engineer, conductor, and switchman (or brakeman) brings
the train to the appropriate track location. The oil cars are dis-
connected from the locomotive (that is driven elsewhere); the
tracks are locked out and “blue flagged” by a supervisor, indicat-
ing that it is safe to work on those tracks. This process usually
takes 3‒3½ hours. Once completed, that crew brings the paper-
work to a Watco supervisor, who posts it in the employee trailer,
notifying the carmen (maintenance) that the train has been “spot-
ted.” The carmen go out and begin inspecting the cars and con-
ducting maintenance and repairs. Concurrently, PES employees
unload the crude oil; that may take 6‒7 hours. When the carmen
notice minor problems, they make the repairs. When the prob-
lem is significant, they mark the car and note the problem on the
paperwork. Those cars are later separated from the train and
moved to another track on the facility. After a number of those
cars accumulate, CSX takes possession and makes those major
repairs.
When Watco began its operations in October 2013, all em-
ployees were new hires, who underwent orientation from Octo-
ber 1 to October 17, 2013. Some additional employees were
hired on various dates thereafter. John D. Peters, a locomotive
1 John D. Peters is the grandfather of John C. Peters, Jr., also a witness
in this case. When I refer to Peters or John Peters, I am referring to the
grandfather, John D. Peters, unless I indicate otherwise.
2 Spiller was promoted to regional director of operations in January
2015, succeeding Nathan Henderson. Henderson became senior vice
engineer, was one of those original hires.1 In April 2014, Watco
hired Dennis Roscoe as a carman.
Webb is the owner of the company, headquartered in Pitts-
burg, Kansas. Brooke Beasley is one of seven People Service
managers (human resources) for Watco Companies, located in
corporate headquarters in Pittsburg. She had primary responsi-
bility for five facilities including Watco Transloading. Beasley
reported to Sofrona Howard and Matt Lions, directors of People
Services, who reported to Chris Speers, vice president of People
Services.
At the Watco facility at issue, Brian Spiller was the terminal
manager beginning in October 2013. He reported to Nathan
Henderson, director of operations/assistant vice president for op-
erations for that region, who was located in Houston, Texas.2
Subordinate to the terminal manager were four shift supervisors.
The trains are operated by three-man crews: a conductor, an
engineer, and a brakeman. There are also two-man teams of me-
chanics, called carmen, who inspect and perform general mainte-
nance and repairs on the railcars.
All employees normally work 12-hour shifts, though they may
perform overtime work when necessary. It is not unusual for
employees to have free time during their shifts, if no train is en-
tering or departing the facility.
There are two trailers on the site. One is the supervisors’
trailer, where supervisors work. The other is the employees’
trailer. Employees spend their free time during their shifts in that
trailer, where they have lockers and a break room. The trailers
are connected by a wooden deck. Outside, perhaps 50’ behind
those trailers, is an area designated for smoking. For safety rea-
sons, smoking is not permitted at the facility other than in the
designated area, which is called the “smoking hut.” It is in a
gravel area and is covered on the top but open on all sides. (R.
Exh 1.) There are also porta-johns in back, maybe 50‒75’ from
the smoking hut.
Employees Contact the Union
In June and July 2014, Peters and Roscoe each independently,
and without the other’s knowledge, contacted the United Trans-
portation Union. Each one spoke to James White, the union or-
ganizer. They both discussed the union with other employees,
but neither had any knowledge that the other had contacted any
union. Tr. 455‒56.
Spiller’s Comments About Union Activity
In July 2014, shortly after David Gordon was promoted to
shift supervisor, Terminal Manager Spiller told Gordon to “keep
his ear to the ground” regarding unionizing efforts, and that Pe-
ters was the leader of unionization efforts at the facility. (Tr.
111‒12.)3 Gordon was anti-union himself, and Spiller asked him
to tell employees about his negative experiences with unions.
Spiller made these comments to Gordon on two or three occa-
sions. In early August, Peters asked Gordon his opinion about
unionizing, Gordon expressed his anti-union sentiments and
president of Houston operations in August 2015; Spiller succeeded him
as vice president of operations.
3 Respondent fired Gordon in November 2014. However, his testi-
mony on this point was not contradicted by Spiller; thus, I credit it.
DECISIONS OF THE NATIONAL LABOR RELATION BOARD12
explained his reasons. Peters had been vocal in his support for
the union, so Gordon was aware of Peters’ opinion. There is no
evidence that the Respondent was aware of Roscoe’s union ac-
tivity until August 21 at the earliest.
Roscoe’s Complaint to Spiller about Discrimination
Mike Onuskanych had been hired in October 2013 and had
extensive experience prior to that. Spiller felt Onuskanych went
well above and beyond the requirements of the position on a
daily basis and was helpful and supportive to operations. Tr.
657‒658. He discussed the matter with Nathan Henderson, who
agreed it was important to reward such team members. Spiller
then promoted Onuskanych to lead carman, with no supervisory
responsibilities, but making him responsible for ensuring that all
necessary parts and materials were on site, and that all necessary
paperwork was properly completed by himself and all carmen.
The promotion was noncompetitive; no vacancy was advertised.
This occurred around mid-May 2014.
On July 29, Roscoe handed Spiller a letter in which he com-
plained about nonpromotion of black carmen. (GC Exh. 21.)
Specifically, he was concerned that the lead carman position had
not been advertised, so the black carmen (he, Carl Pinder, Jr.,
and Kim Bronson) did not have the opportunity to apply, and the
position was filled noncompetitively by Onuskanych, who was
white. Further, two of Onuskanych’s sons were hired to do the
same work as the black employees, at the same pay rate, despite
having less, or no, prior experience. (Tr. 272, 273, 395, 396,
397, 399‒400, 403, 404, 405, 412; GC Exh. 7, 21, 41.) There had
not previously been a lead carman; the position was newly cre-
ated for Onuskanych. The following day, June 30, Spiller called
Roscoe, Pinder, and Bronson to the supervisors’ trailer to discuss
the matter. Roscoe recalled that they met at 3 p.p. for over 2
hours. (Tr. 273‒74, 405, 407, 410.) Spiller recalled the meeting
taking 15‒20 minutes. (Tr. 660.) Spiller explained that it was
his decision and that he did not have to post jobs. He testified
that he advised them that he wanted to reward hard work and
exemplary performance, and that there would be other opportu-
nities in the future. Spiller called Beasley a few days after that
meeting and told her of the employees’ concerns. Roscoe
emailed Beasley a copy of his letter to Spiller, but she did not
respond. It is unclear whether Beasley actually received that
email. None of those employees again complained to Spiller
about race discrimination.
Peters’ Complaints About Offensive Text Messages from
Coworker
On August 1, 2014, Peters was asked to stay on overtime, as
engineer Leroy Henderson (no relation to Nathan Henderson)
called out sick. Peters called Henderson and told him to come
in, because he (Peters) could not stay. Less than 2 hours later,
Henderson sent Peters a series of text messages that Peters found
disturbing. (GC Exh. 19.) Peters went to Shift Supervisor Plotts
and showed him the messages. Plotts requested to meet with
Henderson but Henderson refused. Henderson did report to
work later in that shift, albeit in an intoxicated state, and Peters
went home.
4 Spiller was on vacation at the time and did not see the email until
his return.
Since Plotts had not dealt with the offensive texts, Peters
raised the issue with Spiller the following day, via email.4 Peters
complained to Spiller that Henderson had sent a series of threat-
ening, harassing, and disparaging text messages to his cell phone
beginning on August 1, 2014, at 6:15 p.m., because he did not
support the hiring of Henderson’s friend, who had applied for a
job with Watco. Peters advised Spiller that he had asked Plotts
to discuss the texts with Henderson, but Henderson refused to
participate, so he now requests that Spiller speak to Henderson
about his behavior. Spiller did not reply to Peters. He testified
that when he returned to work after his vacation, he discussed the
matter with each man separately. He understood that they had
known each other from prior employment, thought the issue had
been defused, and considered it resolved. (Tr. 653.) However,
Peters did not tell him that he was satisfied and did not wish to
pursue the matter.
Peters also sent the text messages to Beasley, who did not re-
spond. (GC Exh. 19.) She testified that she did not receive the
email and that she was unaware that any complaint was received
by her office. Beasley was, however, advised by Spiller that
there had been a conversation regarding problematic text mes-
sages. Beasley notified Howard generally of the problem but did
not provide her any details. No action was taken against Hen-
derson for his conduct.
Spiller testified that he did not consider Henderson’s language
to be inappropriate or threatening although he agreed that the
language might warrant further investigation. (Tr. 688, 691‒92.)
While the employees may use crude language, he drew the line
as to acceptability when an employee found it necessary to com-
plain to a supervisor, manager, or HR. He felt it significant in
this instance that the two employees seemed to have resolved the
dispute and that no action was required by him. (Tr. 688.)
Beasley Investigation of Peters
On August 4, 2014, employee Curtis Pettiford sent an email
to Beasley and Director of Operations Nathan Henderson
(Spiller’s superior). Pettiford complained that Peters repeatedly
called Pettiford a “faggot” and other offensive terms, suggesting
that Pettiford was homosexual.
Beasley advised Howard of the complaint and immediately
initiated an investigation of Pettiford’s accusation against Peters,
conducted by telephone. She interviewed Pettiford on August 4.
Pettiford said the harassment began in November 2013 and had
been witnessed by several employees: Kim Bronson, Dennis
Roscoe, Greg Baranyay, Leroy Henderson, Carl Pinder, and Da-
vid Shertel. Pettiford told Beasley that he was offended in part
because he is not gay and is married and has a child. He re-
quested that he be transferred to another Watco facility because
assignment to a different crew would not solve the problem. Pet-
tiford stated that he would still have to interact with Peters on
any crew at PES. He also said that he had no other issues with
Peters.
On August 4, 2014, the Respondent took steps to ensure that
Pettiford and Peters were never assigned to the same shift. The
same day, Beasley interviewed Leroy Henderson, a locomotive
WATCO TRANSLOADING, LLC 13
engineer.5 Henderson told Beasley that he heard Peters say that
Pettiford was gay on one or more occasions when Pettiford was
not present.
On August 5, Beasley interviewed Kim Bronson, a carman.
Bronson said he had never witnessed offensive or derogatory
name calling amongst employees at PES.
Beasley also interviewed Roscoe, a carman, on August 5.
Roscoe said he had no knowledge regarding this situation and
would like to decline comment.
On August 5, Beasley interviewed Greg Baranyay, a conduc-
tor. Baranyay reported that he heard Peters call Pettiford gay,
but not in Pettiford’s presence. This occurred 2 months prior to
the interview. Baranyay told Beasley he thought Peters said this
in a joking manner in part because Peters joked with him about
hanging out in gay bars.
Beasley called Peters on August 5 and advised him that she
was conducting an investigation into allegations against him. He
testified that she told him that he was prohibited from discussing
the conversation with anyone, including Spiller (Tr. 167).
Beasley testified that she “requested” that each of the employees
that she interviewed keep her interview with them as confidential
as possible. (Tr. 602.) I credit Peters. It is highly unlikely that
one in a position of authority would “request” rather than order
confidentiality if they were concerned that a lack of confidenti-
ality would compromise the investigation.
Peters denied calling Pettiford gay or “faggot.” He admitted
to joking around with Pettiford, but not about sexual orientation.
Peters admitted to joking around with other employees about fre-
quenting gay bars, but not with Pettiford nor about him. Beasley
testified that she suspended her investigation on August 5 be-
cause Spiller was on vacation. However, she shared the infor-
mation with Nathan Henderson, Spiller’s boss, on August 5.
Henderson could have fired Peters without Spiller’s input, but
did not do so.
Decision to Terminate Peters
The information acquired on August 4 and 5 constitutes all the
information on which the Respondent relied upon in terminating
Peters’ employment on August 26, 2014. However, Beasley in-
terviewed other employees about this matter after Peters’ termi-
nation.
On the morning of August 19, 2014, Beasley, Terminal Man-
ager Brian Spiller, Director of Operations Nathan Henderson,
and Human Resources Director Sofrana Howard participated in
a conference call to discuss Beasley’s investigation. (R. Exh. 5.)
During the call Spiller was in Ohio on company business. Hen-
derson, who did not testify in this proceeding, was apparently in
his office in Houston, Texas. Beasley and Howard were in their
offices in Pittsburg, Kansas.
There is no documentation regarding what was said during
this conference call in the record. However, Beasley, Howard,
and Spiller testified that the Respondent decided to terminate Pe-
ters during this conversation. For reasons discussed below I do
not credit this testimony.
5 None of the employees interviewed by Beasley testified in the in-
stant hearing other than Peters and Roscoe. Pettiford did not testify. As
Roscoe’s Complaints About Smoking
In early August, Roscoe saw Shift Supervisor Ryder smoking
outside, in front of the trailers where work vehicles are parked.
Roscoe told Ryder that he should not smoke there, and Ryder
replied that he was the boss and Roscoe could not tell him what
to do. Roscoe had observed Ryder and employee Mike Onus-
kanych smoking there on other occasions as well, and Mike
smoking near the tracks where oil was being pumped into a
tanker. On August 6, Roscoe advised Shift Supervisor Plotts that
he had seen two employees smoking in areas other than the des-
ignated hut on several occasions, and that it constituted a safety
hazard. He suggested that Plotts issue a memorandum to the em-
ployees reminding them to smoke only in the hut. (R. Exh. 1.)
Roscoe also contacted the PES Safety Coordinator about his
observations, and he indicated he would contact Spiller about it.
Subsequently, Roscoe reported on the Respondent’s website that
employees were smoking in unauthorized areas. He then sent
Spiller an email on August 13, advising him that he had made
Plotts and the PES Safety Coordinator “aware of the life-threat-
ening and hazardous situation” caused by employees smoking in
non-designated areas, and that employees were ignoring posted
memos and bulletins stating the smoking policy. (GC Exh. 22.)
On August 17, Roscoe forwarded that email to Beasley, advising
her that he had reported to Spiller that Ryder and Mike Onus-
kanych as well as his sons, Kevin and Joseph, were smoking in
non-designated areas in violation of PES policy. (GC Exh. 23,
44.) He also told Beasley that he felt Ryder was harassing him
for reporting his smoking violation.
Beasley replied to Roscoe’s email, that she would look into it.
She also asked about the alleged retaliation. (GC Exh. 44.) She
contacted Spiller about the situation and, on August 20, emailed
Roscoe that Spiller would handle the situation including posting
a notice. (GC Exh. 45.)
A notice was posted in the employee trailer and on the bulletin
board reminding employees that they were required to use the
designated smoking hut. Spiller testified that he also spoke with
the individuals identified by Roscoe as having violated the pol-
icy.
August 15 Overtime Incident with Roscoe and Ryder
On August 15, Roscoe worked past his shift end time at 6 p.m.,
making a repair to a train car and briefing his relief on the next
shift about other needed repairs. SS Ryder sent Roscoe some
text messages, but Roscoe did not receive them since his phone
was in the trailer, not on his person. He then called him on his
walkie-talkie and ordered him to come to the supervisors’ trailer.
When he arrived, Ryder told him to go home, since Bronson, his
relief carman, had arrived, and he didn’t want him working over-
time. Roscoe replied that he needed to fix the pin, show Bronson
the pin, and complete his paperwork. Ryder agreed, and Roscoe
stayed approximately another hour.
On August 17, Roscoe e-mailed Beasley and Spiller about the
incident with Ryder on August 15, 2014. (Tr. 286, 286‒87, 289,
442, 445, 561; see Tr. 444; GCX 40; GC Exh. 45.)
Beasley had spoken with supervisors on August 15, so she was
to the results of Beasley’s investigation, I rely on her written report of
August 29, 2014. R. Exh. 4.
DECISIONS OF THE NATIONAL LABOR RELATION BOARD14
aware of the situation from their perspective.
Employee Interaction with Union
On August 21, Peters, Roscoe, Horne, and Salmond were on
break in the employee trailer. Peters and Roscoe began discuss-
ing the merits of unionizing. Peters went on a computer in the
trailer and representation of another facility in the area, and that
he knew the Union represented PES employees. He said he was
interested in organizing the Respondent’s workforce and he be-
lieved most employees were in favor of unionizing. He sug-
gested that Savage come to the facility to talk to employees in
the parking lot when the shifts changed, and half the employees
were available. He added that Savage could meet at least 12 em-
ployees in the parking lot, and that he would contact all employ-
ees coming on shift and ask them to come in early to hear Sav-
age. Savage agreed to meet with employees in the parking lot at
the PES facility later that day, about 5:15 p.m.
On the evening of Thursday, August 21, 2014, Savage came
to the Watco employee parking lot at the PES facility. He met
with about 12 employees including Peters and Roscoe. Both Pe-
ters and Roscoe signed authorization cards. The gathering was
observed by one or more shift supervisors, who reported to Ter-
minal Manager Brian Spiller that Peters and Roscoe were circu-
lating union authorization cards. (Tr. 655.)6
On Monday, August 25, Brooke Beasley flew from Kansas
City, Missouri to Philadelphia, arriving at 9:25 p.m. Beasley tes-
tified that while she was en route to Philadelphia, Nathan Hen-
derson and Spiller informed her of the union activity at the PES
facility. The next day, Spiller picked her up and drove her to the
PES site. There is no evidence as to what Beasley did until 3:30
p.m. on the 25th. Peters reported to work at 2 p.m. At about
3:30 Spiller and Beasley summoned Peters to Spiller’s office and
terminated his employment.
Peters appealed his termination to the Director of Operations
Nathan Henderson. As a result, Beasley conducted more inter-
views on August 287 and apparently, for the first time, authored
a written report of her investigation on August 29. Henderson
denied Peters’ appeal.
Legal Analysis Regarding John Peters’ Discharge
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity or other protected
activity has been a substantial factor in the employer’s adverse
personnel decision. To establish discriminatory motivation, the
General Counsel must show union or protected concerted activ-
ity, employer knowledge of that activity, animus or hostility to-
wards that activity and an adverse personnel action caused by
such animus or hostility. Inferences of knowledge, animus and
6 Spiller testified that he first learned of this union activity on Mon-
day, August 25, his first day back at the PES terminal after being away
for reasons not fully explored in this record. I do not credit this testi-
mony. Shift Supervisors observed the union meeting in the parking lot
on August 21 and I infer that if one thought that it was important enough
to report this, they would not have waited 4 days. Spiller was not on
vacation between August 21 and 25. His vacation ended the week of
August 4‒8. On August 19, he was on company business in Ohio. He
testified that on August 21 he was at home in Pittsburg. In any event,
there is no evidence that supervisors at the PES facility would have been
discriminatory motivation may be drawn from circumstantial ev-
idence as well from direct evidence.8 Once the General Counsel
has made an initial showing of discrimination, the burden of per-
suasion shifts to the employer to prove its affirmative defense
that it would have taken the same action even if the employee
had not engaged in protected activity, Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
One thing that is perfectly clear is that Respondent was aware
that John Peters had been passing out union authorization cards
when it fired him on August 26. The timing of his discharge in
conjunction with Watco’s animus toward unionization is suffi-
cient to meet the General Counsel’s initial showing of discrimi-
nation. Aside from the timing of the discharge, Respondent’s
illegal grant of benefits to employees during the subsequent or-
ganizing campaign, which I discuss later, demonstrates its ani-
mus towards employees’ efforts to organize Watco employees at
PES.9 The fact that other Watco facilities are unionized is irrel-
evant with regard to the company’s actions in this case. Thus, the
burden of persuasion shifted to Respondent to prove that it would
have fired Peters even in the absence of his union activity. I find
that it did not satisfy its burden.
The timing of Peters’ discharge is suspicious for a number of
reasons. First, all of the evidence upon which the company re-
lied in discharging Peters was in its possession on August 5. The
company’s explanation for why he was not discharged until Au-
gust 26 on the basis of this evidence is unpersuasive. Brooke
Beasley testified that Brian Spiller was on vacation the week of
August 3‒9, 2014, and that his boss, Nathan Henderson, was on
vacation during the week of August 10‒16. However, Beasley
consulted with Henderson and Human Resources Manager
Sofrana Howard the week of August 3‒9. They decided to take
action, even in Spiller’s absence, by ensuring that Peters and
Curtis Pettiford never worked on the same shift. Assuming the
only reason for Peters discharge was Pettiford’s complaint, there
is no satisfactory explanation as to why Watco did not discharge
Peters on or about August 5. Respondent has not explained why
it was necessary to wait for Spiller’s return. Henderson, who did
not testify in this proceeding, appears to have had the authority
to discharge Peters immediately and there is no explanation as to
why he did not do so.
Respondent’s witnesses testified that the decision to terminate
Peters was made during a conference call on Tuesday, August
19, a week before it actually fired Peters. However, there is noth-
ing to support this assertion other than the self-serving testimony
of its witnesses, Spiller, Beasley, and Howard. While there is
documentary evidence that they participated in a conference call
on August 19 (R. Exh. 5), there is no documentary evidence as
to what was discussed during this call - no emails, no notes, no
unable to contact Spiller on Thursday, August 21, Friday, August 22, or
over the weekend.
7 This suggests that Respondent did not have sufficient information
to justify the termination prior to August 28.
8 Flowers Baking Co., Inc., 240 NLRB 870, 871 (1979); Washington
Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v.
NLRB, 70 F. 3d 863 (6th Cir. 1995).
9 Respondent’s post termination conduct may be considered in deter-
mining anti-union animus, 2 Sisters Food Group, 357 NLRB 1816,
1836‒37 (2011).
WATCO TRANSLOADING, LLC 15
memoranda. Respondent has a progressive discipline policy,
(GC Exh. 43), which does not mandate Peters’ termination.
There is no evidence that this policy was considered with regard
to Peters on August 19, or at any other time. Prior to August 26,
Respondent had never disciplined Peters. (Tr. 169.)
Moreover, if the decision to terminate was made on Tuesday,
August 19, there is no satisfactory explanation as to why it was
not effectuated for a week, or why Spiller could not have dis-
charged Peters without a human resources representative being
present. In contrast, when Respondent presented Dennis Roscoe
with his 14-day suspension on October 2, Henderson and Spiller
met him without a representative from human resources (Tr.
347‒49.) When Respondent discharged Roscoe, it sent him an
email; nobody met with him (Tr. 363‒64.)10
While the record shows that on August 21, Brooke Beasley
made airplane reservations to fly from Kansas to Philadelphia on
August 25, this by itself does not satisfy Respondent’s burden of
persuasion that Watco decided to fire Peters before it knew of his
union activities. Moreover, Spiller picked Beasley up and drove
her to the PES facility on the morning of August 26, after they
both knew of Peters' union activities.11 There is no evidence in
this record as to what Beasley did until 3:30 when Peters was
called into the office to be fired. There is also no evidence as to
what Beasley discussed with Henderson and Spiller on the after-
noon of August 25, while she was waiting for her flight at Chi-
cago Midway (Tr. 578)—other than there had been union activ-
ity at the PES site. One would think that Peters' involvement
would have been a subject of discussion since according to
Beasley she was going to Philadelphia for the express purpose of
firing Peters.
Alleged 8(a)(1) Violations
Complaint paragraph 4(a): Brooke Beasley prohibits Peters
from discussing his interview with her
I find that Respondent, by Brooke Beasley, did not violate the
Act in giving this “confidentiality” instruction.
In Caesar’s Palace, 336 NLRB 271, 272 (2001) the Board
held that the employer did not violate Section 8(a)(1) by instruct-
ing employees not to discuss an ongoing drug investigation. It
observed that employees have a Section 7 right to discuss disci-
pline or disciplinary investigations. However, it found that Cae-
sar’s established a substantial and legitimate business justifica-
tion which outweighed its infringement on employees’ rights.
The Board in footnote 5 made it clear that it is the Respondent’s
burden to establish a legitimate and substantial business justifi-
cation.
In Hyundai America Shipping Agency, Inc., 357 NLRB 860
(2011) the Board found the employer violated Section 8(a)(1) by
promulgating, maintaining, and enforcing an oral rule prohibit-
ing employees from discussing with other persons any matters
10 When Roscoe reported for work on October 10, he was escorted
off the PES premises by Shift Supervisor Gary Plotts. No representative
of Watco ever met with him regarding the circumstances of his termina-
tion.
11 While both Spiller and Peters testified that they became aware of
Peters’ union activities on August 25, I do not credit their self-serving
testimony that they were not aware of it earlier—given that Peters’
under investigation by its human resources department. This
rule was a blanket prohibition, applying to all matters regardless
of the circumstances. The employer’s rule in Boeing Co., 362
NLRB 1789 (2015), was similarly broad.
In Caesar’s Palace, an employer witness testified that it never
explained the purpose of the confidentiality instruction to the
employees during the investigation, 336 NLRB at 273. The
Board appears to have inferred from the circumstances of the in-
vestigation that the employer had a legitimate and substantial
justification for its confidentiality instructions. I believe this
could be inferred in many investigations in which the dangers of
evidence being destroyed or fabricated, and witness intimidation
are obvious. In this vein I would note the Rule 615 of the Fed-
eral Rules of Evidence, in requiring a judge to order the seques-
tration of witnesses upon the request of any party, is a tacit recog-
nition of this danger.
In this case, I find that Respondent’s legitimate reasons for
instructing employees not to discuss its investigation are patently
obvious. There was an obviously danger of the employees coor-
dinating their stories or suggesting “helpful” interview answers
to others. Thus, I find that Respondent’s burden of establishing
that these interests outweigh its infringement on employees’
rights has been met.
Complaint paragraph 4(b): Statements by Brian Spiller in the
breakroom on August 25, 2014
John Peters testified that on August 25, Terminal Manager
Brian Spiller met with a group of employees in the employees’
trailer. Peters testified that witnesses Matthew Horne, a current
Watco employee at the time of this trial, and Dennis Roscoe, who
was terminated on October 10 were present. Peters testified that
Spiller looked directly at him and asked what was going on with
the union campaign and then told the employees that Rick Webb,
the owner of Watco, would shut the facility down if employees
voted to have a union (Tr. 140).
However, when testifying, Horne said nothing about attending
a meeting with Spiller and Peters in August and he testified that
he never heard Spiller say anything akin to Watco tearing up its
contract or losing the contract with PES (Tr. 89).12 In light of
this I credit Spiller’s denial at Tr. 677—78 that he made any
statements suggesting that unionization would lead to termina-
tion of Respondent’s work at PES, or that he made any of the
other statements testified to by Peters. I dismiss complaint par-
agraph 4(b).
Meeting on August 28 (complaint para. 4(c))
Dennis Roscoe testified that he attended a meeting with Brian
Spiller and Shift Supervisor Brian Lockley in the management
trailer on August 28, 2014. According to Roscoe, Spiller asked
Roscoe to tell him about the union campaign. Then Roscoe tes-
tified that Spiller told him that he knew Roscoe was passing out
activities were open and notorious in the employee parking lot and there
is persuasive evidence that shift supervisors were aware of these activi-
ties as early as August 21.
12 Horne, who worked for Watco at the time of the trial, had the least
reason of any witness to fabricate testimony. I rely on his testimony
heavily and where it does not corroborate other GC witnesses, I am dis-
inclined to credit their testimony.
DECISIONS OF THE NATIONAL LABOR RELATION BOARD16
authorization cards and that Spiller would pay him $7 more than
any other Watco employee on the site if he threw away any
signed authorization cards he had received. Then, according to
Roscoe, Spiller asked what employees wanted and that he and
Nathan Henderson had already discussed giving employees a
$2‒$3 per hour raise (Tr. 332‒334).
Spiller denied ever promising an employee a raise if he threw
away authorization cards (Tr. 678). He also denied in a rather
generalized way the other statements attributed to him by Roscoe
without specifically mentioning Roscoe (Tr. 677‒78)6. I find
Spiller’s denials at least as credible as Roscoe’s accusations and
therefore dismiss complaint paragraph 4(c).
Meetings in early September 2014 (complaint paras. (d), (e),
and (f))
The Union filed a petition to represent Respondent’s full-time
and regular part-time engineers, conductors, and car persons at
the PES site on September 2, 2014. The Union and Watco en-
tered into a stipulated election agreement on September 11,
2014, for an election to be held October 3 and 4, 2014.
Matthew Horne, a current Watco employee at the time of trial,
testified to the following regarding meetings conducted by Brian
Spiller in September 2014 (Tr. 75). Given the fact that Horne
was an employee in good standing at the time of his testimony,
appeared to have no ulterior or self-serving motive and was tak-
ing a risk of subtle retaliation, I credit his testimony.13
Horne testified that Spiller asked employees what their gripes
or issues were and why they would think about selecting union-
ization. In response, employees raised improved health benefits,
vacation time, a seniority system, and wages. Spiller replied by
saying that he would try to obtain a $2‒3 an hour raise. At an-
other meeting, he asked employees to fill out a sheet for rain gear
and boot slips so that he could order them. In response to the
employee requests, Spiller promised to attempt to obtain winter
hats and gloves.
Spiller testified in a very general way that his conversations
with employees after the union campaign started was consistent
with those prior to the union campaign (Tr. 677‒678). He did
not specifically contradict Horne’s testimony that he told em-
ployees in September that he would try to obtain a $2‒3 per hour
raise.
Section 8(a)(1) prohibits employers from soliciting employee
grievances in a manner that interferes with, restrains, or coerces
employees in the exercise of Section 7 activities. Solicitation of
grievances in not unlawful but raises an inference that the em-
ployer is promising to remedy the grievances. Additionally, an
employer who has a past policy of soliciting employees’ griev-
ances may continue such a practice during an organizing cam-
paign. However, an employer cannot rely on past practice to jus-
tify solicitation of grievances where the employer significantly
alters its past manner and methods of solicitation, American Red
Cross Missouri-Illinois Blood Services Region, 347 NLRB 347,
351 (2006); Carbonneau Industries, 228 NLRB 597, 598 (1977).
I conclude that the Respondent, by Spiller, violated Section
8(a)(1) in telling employees that it would try to get them a raise
13 The testimony of current employees which contradicts statements
of their supervisors is likely to be particularly reliable because these
and in indicating that they would be receiving rain gear and boot
slips. Although there is evidence that that Spiller had told em-
ployees that he was working on getting such items for employ-
ees, it was not until after the campaign started that Respondent
indicated that employees would receive them.
The Board will infer that an announcement or grant of benefits
during the critical period between the filing of a representation
petition and a representation election is objectionable and viola-
tive of Section 8(a)(1). However, an employer may rebut this
inference by showing there was a legitimate business reason for
the time of the announcement or grant of the benefit, Caterpillar
Logistics, Inc., 362 NLRB 395, 395 fn. 4, 9‒10, (2005), enfd.
835 F. 3d 536 (6th Cir. 2016). Watco has not rebutted this infer-
ence.
Complaint paragraph 4(g): Allegation that the Respondent pro-
vided lunch to employees on a more frequent basis in Septem-
ber 2014 than it had prior to the union organizing campaign
Matthew Horne testified that prior to the commencement of
the union organizing campaign, Respondent bought lunch for its
employees only once or twice. After the campaign started, he
testified that the company bought lunch once a week, Tr. 82.
Brian Spiller testified there was no change in its providing food
for employees after the commencement of the union campaign.
I credit Horne for the reasons stated previously. The increase in
the frequency of this benefit after the commencement of the or-
ganizing campaign violates Section 8(a)(1), Caterpillar Logis-
tics, Inc., supra, 395 fn. 4.
Complaint paragraphs 6 (b)-(e): Discipline of and termination
of Dennis Roscoe
On the afternoon of August 21, Shift Supervisor Ryder issued
two written warnings to Roscoe. He told Roscoe they were from
HR. (GC Exh. 25 and 26.) One warning was for insubordination
to his supervisor regarding his overtime on August 15, and the
other was a quality of work warning for sitting in the trailer in-
stead of immediately beginning his maintenance activity. There
is no evidence that Respondent was aware of any union activity
on the part of Dennis Roscoe prior to the evening of August 21,
2014. However, I find that his complaint about race discrimina-
tion and his antismoking activity constitute protected concerted
activity. Although Roscoe did not discuss his safety concerns
regarding smoking with other employees, his complaints were
made on behalf of all employees and were not purely personal
concerns. Management was well aware of his complaints. Fur-
ther, the facts asserted in the warnings are false; I credit Roscoe’s
testimony as to what occurred on August 15. On a daily basis,
as a carman, Roscoe sits in the employee trailer waiting until a
train arrives and is “spotted.” On August 15, as on all other
dates, he had no knowledge of when the train arrived and was
ready for inspection until it was locked down, and the supervisor
posted it on the board in the trailer. Roscoe testified that the train
was spotted about 1 p.m. He then got dressed and went to the
tracks to conduct his inspection. If Spiller or Ryder had been
aware at the time that Roscoe was sitting in the trailer after being
witnesses are testifying adversely to their pecuniary interest,” Flexsteel
Industries, 316 NLRB 745 (1995), enfd. mem. 83 F.3d 419 (5th Cir.
1996).
WATCO TRANSLOADING, LLC 17
advised that the train had been spotted, they certainly would have
said something to him then, rather than waiting to issue a warn-
ing. Roscoe informed Ryder that he signed out at 7 p.m. (one
hour of overtime). He was not paid for “turnstile time,” the time
he spent getting undressed, cleaned up, changing, and cleaning
up the trailer. Although he was charged with 2½ hours of unau-
thorized overtime, Roscoe testified that he worked, and re-
quested, only 1 hour of overtime. The additional time that he
was onsite he had signed out. Moreover, Roscoe testified, and I
credit his testimony, that it is standard procedure for him to ex-
plain needed repairs to the oncoming crew, that it had never been
necessary to request overtime in advance in such situations, but
rather that it was routine to continue working until those discus-
sions had concluded. I find that the General Counsel has met his
burden and that the Respondent has not met its burden of demon-
strating that it would have issued the warnings in the absence of
Roscoe’s protected concerted activity.
Therefore, I find that the Respondent violated Section 8(a)(3)
and (1) in issuing Roscoe two disciplinary warnings on August
21, 2014.
Incidents of September 23, 2014; Respondent sends Dennis
Roscoe home
On September 23, 2014, 10 days before the scheduled repre-
sentation election at Watco, Respondent sent Dennis Roscoe
home in what was essentially a suspension pending an investiga-
tion. He was not allowed to return to work until October 6 or 7,
but voted in the election that was conducted by the Board on Oc-
tober 3 and 4.
On September 23, shortly after he arrived at work, Roscoe
confronted Joseph Onuskanych, who was not scheduled to work
that day. Onuskanych had come to work for overtime pay as a
flagman. Roscoe questioned why Onuskanych was at work, sug-
gesting that his presence was not necessary for the work that was
to be performed that day. Roscoe threatened to call human re-
sources to complain about this.
At some point Roscoe said that the only reason Joseph Onus-
kanych and his brother Kevin had jobs at Watco was because of
their father, Michael Onuskanych, lead carman at Watco.
Roscoe also had a dispute with Shift Supervisor Brandon
Lockley the same day. After his conversation with Onuskanych,
Roscoe told Lockley that he wanted to report to human resources
that Onuskanych was being allowed to be at work with nothing
to do. Lockley told Roscoe that he was tired of Roscoe disrupt-
ing operations and that Roscoe should go do his work. Roscoe
said that he had talked to Brian Spiller and that Spiller said he
could wait for Spiller to get to work so that Roscoe could give
him papers about another issue he had.
After talking to Lockley, Terminal Manager Brian Spiller con-
sulted with his boss, Nathan Henderson, and Human Resources
Manager Sofrana Howard. Spiller then sent Roscoe home, es-
sentially suspending him pending an investigation.
Howard instructed Spiller to obtain statements from wit-
nesses. On September 23, Spiller took statements from the fol-
lowing employees: Joseph Onuskanych, Shift Supervisor Bran-
don Lockley, Michael Onuskanych, Matthew Horne, John C. Pe-
ters, Jr., Gregory Baranyay and Dennis Roscoe. Howard also
flew to Philadelphia and conducted face to face interviews on
September 25 with Joseph Onuskanych, Brandon Lockley, Mike
Onuskanych, Matthew Horne, Greg Baranyay and Dennis Ros-
coe. Roscoe referred Howard to his attorney shortly after How-
ard called him. On September 29, Respondent interviewed
Lockley a second time.
Of these witnesses only Roscoe, Matthew Horne, and John C.
Peters, Jr. testified in this proceeding. Neither Horne nor Peters
was asked about the events of September 23 concerning Dennis
Roscoe.
Onuskanych’s statement includes the following: Roscoe said,
“the only reason I got this job is because of my dad and he was
dicksucker in the form of hand and mouth gestures,” (R. Exh.
11). Joseph’s father gave a statement that Roscoe “make a re-
mark in front of our coworkers that the only reason Joe Onus-
kanych and Kevin Onuskanych are employed by Watco [is] be-
cause Mike Onuskanych sucks management’s dick and stood
there and made the action of sucking dick in front of my cowork-
ers,” (R. Exh. 14). It is not clear that Mike Onuskanych was
present during the exchange between Roscoe and his son, or
whether he was relating what his son had told him. In this hear-
ing, Roscoe denied making any crude, rude, or obscene gesture
to Joe Onuskanych (Tr. 347, 503).
Other than Joe and Mike Onuskanych, no other witness
claimed that Roscoe suggested in any way that Mike Onus-
kanych performed oral sex on management. Brian Lockley did
not mention that in this initial statement, but in his second state-
ment on September 29 stated that Joe Onuskanych told him that
Roscoe had made “rude comments.” (R. Exh. 8.)
On October 2, the day before the beginning of the representa-
tion election, Respondent called Roscoe into work to meet with
Nathan Henderson and Brian Spiller. Spiller gave Roscoe a let-
ter dated October 1 assessing a 14-day unpaid suspension, dating
from September 23, and a final written warning. It also put Ros-
coe on a performance improvement plan, (GC Exh. 34). In ad-
dition to insubordination, the suspension was based on a finding
that Roscoe had made inappropriate gestures of a sexual nature.
The representation election was conducted at the PES facility
on October 3 and 4. Thirteen employees voted against union
representation; seven voted in favor. No objections to the con-
duct of the election were filed and the Board certified the election
results. Roscoe returned to work on October 7, 2014.
On or about October 9, Nathan Henderson called Spiller and
told him that employee Leroy Henderson (no relation to Nathan
Henderson) had complained that Roscoe pulled his car even with
Henderson’s and started cursing and threatening Henderson.
Spiller and Henderson consulted with an attorney and decided to
fire Roscoe on October 10, 2014. Respondent notified Roscoe
of his termination by email on October 11.
Legal Analysis with regard to the suspension and discharge of
Dennis Roscoe
The legal principles in Wright Line, 251 NLRB 1083 (1980),
apply to the suspension and discharge of Dennis Roscoe. The
General Counsel made it initial showing of discrimination. Re-
spondent was aware of Roscoe’s union activities and had demon-
strated animus towards the organizing campaign by virtue of its
illegal grant of benefits to unit employees. Moreover, in the
absence of sufficient non-discriminatory justification, the length
DECISIONS OF THE NATIONAL LABOR RELATION BOARD18
of the suspension, encompassing the dates of the representation
election, is another indication of discriminatory motive. The
burden of proof thus shifts to the Respondent to prove that it sus-
pended and discharged Roscoe for non-discriminatory reasons.
To satisfy its burden under Wright Line, an employer need not
prove that an employee actually engaged in misconduct to justify
discipline or discharge if it establishes that it had a good faith
belief that the misconduct occurred, McKesson Drug Co., 337
NLRB 935, 937 fn. 5 (2002).
Roscoe’s suspension and, more importantly, the length of the
suspension were based in part of Respondent’s conclusion that
he made an obscene gesture directed at Joseph Onuskanych. I
find that Respondent did not have a good faith belief that this
occurred. To the contrary, I conclude that it was a pretextual
reason to ensure that Roscoe was on suspension at the time of
the representation election.
Had Respondent merely taken Joseph Onuskanych’s com-
plaint at face value, it would have been unnecessary to interview
witnesses. However, Respondent did interview a number of wit-
nesses and none of them corroborated Onuskanych’s story, ex-
cept for his father. As to the latter, it has not been established
that Mike Onuskanych was present when Roscoe supposedly
made this obscene gesture. There is, for example, no evidence
of his reaction to such a remark, which one would expect under
the circumstances.
Sofrana Howard testified that “it was found that he (Roscoe)
made the alleged comments to Mr. Joe Onuskanych and that he
made the alleged comments and then was insubordinate to Mr.
Lockley,” (Tr. 629). I would note that the use of the passive
voice is often used to avoid pinning responsibility on the person
who performed an act or made a decision. However, more im-
portantly, there is no explanation as to the basis upon which Re-
spondent credited the assertions of Joe Onuskanych over Dennis
Roscoe’s denials.
I believe it also relevant to the question of the Respondent’s
good faith belief that Roscoe denied making the obscene remark
under oath in the instant trial, while Respondent relied com-
pletely on hearsay and did not call Joe Onuskanych as a witness.
As a result of the above, I conclude that the Respondent has
not established that it had a good faith belief that Roscoe made
the obscene gesture and has not met its burden of proving that
the length of his suspension was determined on a non-discrimi-
natory basis.
Roscoe’s discharge
There are three different versions of what happened on or
about October 9, 2014 between Dennis Roscoe and Leroy Hen-
derson. Roscoe testified under oath as to what transpired. Hen-
derson and his passenger Sabrina Harris did not. Henderson au-
thored a document (R. Exh. 16), in which he stated that Roscoe
pulled up next to him, yelled unprovoked obscenities at him,
threatened him (i.e., Roscoe stated “he knew where I resided”)
and cut off his vehicle. Leroy Henderson then called Sofrana
Howard and Nathan Henderson, but apparently not the police.
Henderson’s passenger, Sabrina Harris, a security guard for PES,
14 Roscoe’s testimony is a bit curious with regard to an affidavit he
gave the Board Agent during the investigation the charge. He told her
that Leroy Henderson was leaning outside the window of his car and
gave an almost identical statement and also appears not to have
contacted the police. Respondent, by Nathan Henderson and
Brian Spiller, decided to fire Roscoe without getting his side of
the story.
Neither Leroy Henderson, who still worked for Watco at the
time of this trial, nor Sabrina Harris testified in this proceeding.
Roscoe, on the other hand, denied under oath ever having a con-
frontation with Henderson (Tr. 365‒66, 525‒32.)14 I find his tes-
timony to be credible. There is no explanation for the basis upon
which Respondent took the allegations of Leroy Henderson at
face value. Sabrina Harris did not know the identity of the indi-
vidual with whom Henderson allegedly had a confrontation.
In light of this, I conclude that Respondent has not established
that it had a good faith belief that Dennis Roscoe cursed and
threatened Leroy Henderson. Moreover, Roscoe’s discharge is
tainted by his 14-day discriminatory suspension. Therefore, I
find that Respondent has not met its burden of proving that it
would have fired him on October 10 or suspended him for 14
days on October 1 in the absence of its animus towards his union
activities.
SUMMARY OF CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) and (1) by terminating
the employment of John Peters and Dennis Roscoe.
Respondent violated Section 8(a)(3) and (1) in suspending
Dennis Roscoe for 14 days in October 2014.
Respondent violated Section 8 (a)(3) and (1) in issuing two
written warnings to Roscoe.
Respondent, by Brooke Beasley, did not violate Section
8(a)(1) by instructing John Peters to keep her interview with him
confidential.
Respondent did not violate Section 8(a)(1) on August 25,
2014 by interrogating John Peters, by creating the impression
that employees’ union sympathies were under surveillance or
threatening to terminate Watco’s presence at the PES site.
Respondent did not violate Section 8(a)(1) on or about August
28, 2014 by interrogating Dennis Roscoe, creating the impres-
sion that employees union activities were under surveillance,
telling Dennis Roscoe that it would give him a raise if he threw
away union authorization cards, soliciting employee grievances
and impliedly promising to remedy them and making the other
statements alleged in complaint paragraph 4(c).
Respondent, by Brian Spiller, violated Section 8(a)(1) of the
Act in September 2014 by promising benefits to employees, in-
cluding telling employees that he would try to get them a raise
and in indicating that they would be receiving rain gear and boot
slips, in order to discourage support for the Union.
Respondent violated Section 8(a)(1) in buying lunch on a
more frequent basis than it had previously after it became aware
of the union organizing drive and after the representation petition
had been filed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
looked like he was yelling or cursing at Roscoe. However, Roscoe told
the Board Agent that he kept his windows rolled up and did not say any-
thing to Henderson and assumedly kept driving, Tr. 529‒30.
WATCO TRANSLOADING, LLC 19
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged John Pe-
ters and Dennis Roscoe, must offer them reinstatement and make
them whole for any loss of earnings and other benefits. 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 pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall compensate John Peters, Sr., and Dennis
Roscoe for search-for-work and interim employment expenses
regardless of whether those expenses exceed their interim earn-
ings. King Soopers, Inc., 364 NLRB No. 93 (2016). Search-for-
work and interim employment expenses shall be calculated sep-
arately from taxable net backpay, with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as prescribed
in Kentucky River Medical Center, supra.
The Respondent shall compensate John Peters and Dennis
Roscoe for the adverse tax consequences, if any, of receiving
lump sum backpay awards. Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014). In accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Re-
spondent shall, within 21 days of the date the amount of backpay
is fixed either by agreement or Board order, file with the Re-
gional Director for Region 4 a report allocating backpay to the
appropriate calendar year for each employee. The Regional Di-
rector will then assume responsibility for transmission of the re-
port to the Social Security Administration at the appropriate time
and in the appropriate manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Watco Transloading, LLC, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, disciplining, or otherwise discriminating
against any employee on the basis on their support for United
Steel Workers Local 10‒1, or any other union.
(b) Announcing, promising, and/or granting benefits in order
to dissuade employees from supporting United Steel Workers
Local 10‒1, or any other union.
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
John D. Peters and Dennis Roscoe full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to seniority or any other rights
or privileges previously enjoyed.
(b) Make John D. Peters and Dennis Roscoe whole for any
15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
loss of earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the remedy
section of the decision.
(c) Compensate John D. Peters and Dennis Roscoe for the
adverse tax consequences, if any, of receiving lump sum backpay
awards, and file with the Regional Director for Region 4, within
21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years for each employee.
(d) Compensate John D. Peters and Dennis Roscoe for their
search-for-work and interim employment expenses regardless of
whether those expenses exceed their interim earnings.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the John D. Peters and Den-
nis Roscoe discharges and Dennis Roscoe’s written warnings
and suspension and within 3 days thereafter notify John D. Peters
and Dennis Roscoe in writing that this has been done and that
the discharges and Roscoe’s warnings and suspension will not
be used against them in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(g) Within 14 days after service by the Region, post at its
Philadelphia, Pennsylvania (PES) facility copies of the attached
notice marked “Appendix.”16 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employ-
ees are customarily posted. In addition to physical posting of pa-
per notices, the 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 Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 26,
2014.
(h) 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 insofar
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATION BOARD20
as it alleges violations of the Act not specifically found. Dated, Washington, D.C., April 5, 2017