DHL Express

National Labor Relations Board - Administrative Judge Opinions

Jun 5, 2008

04-CA-035417 (N.L.R.B. Jun. 5, 2008)

JD–29–08
Breinigsville, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DHL EXPRESS Cases 4–CA–35417
4–CA–35622
4–CA–35629
4–CA–35630
and 4–CA–35696
4–CA–35697
4–RC–21327
AMERICAN POSTAL WORKERS
UNION, AFL-CIO
THE CROSSROADS GROUP LABOR
RELATIONS CONSULTANTS
and Case 4–CA–35685
AMERICAN POSTAL WORKERS
UNION, AFL-CIO
Henry R. Protas and
Edward J. Bonett, Jr., Esqs.,
of Philadelphia, PA, for the
General Counsel.
Tedd J. Kochman and Paul H. Mazer, Esqs.
(Littler Mendelson), of Newark, NJ,
for Respondent DHL and Respondent Crossroads.
Daniel B. Smith and Anton Hajjar, Esqs. (O’Donnell,
Schwartz & Anderson, P.C.), of
Washington, D.C., for the Charging Party.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge. This consolidated representation
and unfair labor case was tried in Philadelphia, Pennsylvania for 6 days from March 11 through
March 19, 2008. The case involves an organizing effort by the Charging Party Union (hereafter,
the Union) at Respondent DHL’s Breinigsville, Pennsylvania facility, beginning in April 2007 and
culminating in a Board conducted election in September 2007. The consolidated unfair labor
practice complaint alleges that Respondent DHL violated Section 8(a)(1) of the Act by various
acts and statements of coercion and interference through its admitted supervisors and agents,
including security guards employed by Risk Protective Services, with which it had contracted to
provide security services at the Breinigsville facility, and Michael Penn, a labor consultant
employed by Respondent Crossroads, with which it had contracted to help in its campaign to
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defeat the Union. The complaint also alleges that Respondent Crossroads was itself liable for
the violations committed by Penn. In addition, the complaint alleges that Respondent DHL
violated Section 8(a)(3) and (1) of the Act by committing various acts of discrimination against
employee Elias Sleiman and by discriminatorily discharging employee Emilia Rios because of
their union activities. Some of the Section 8(a)(1) allegations were also advanced by the Union
as objections to the September 2007 Board conducted election, which was part of the
representation case. The Union asks that the election, which it lost by a vote of 217 to 135, be
overturned and that the Board order a new election. The Respondent filed an answer in the
unfair labor practice case, denying the essential allegations in the complaint. It also urges that
the Union’s objections to the election in the representation case be overruled and that the Board
certify the election results.1
After the trial, the General Counsel and the Respondent filed briefs, which I have read
and considered.2 Based on the entire record in this case, including the testimony of the
witnesses, and my observation of their demeanor, I make the following:
Findings of Fact
Jurisdiction
Respondent DHL is a corporation engaged in global package delivery services for
commercial customers, with a facility located in Breinigsville, Pennsylvania, where the events
herein occurred. During a representative one-year period, Respondent DHL, in conducting its
business operations, performed services valued in excess of $50,000 outside the
Commonwealth of Pennsylvania. Accordingly, I find, as Respondent DHL admits, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
Respondent Crossroads, an admitted agent of Respondent DHL, is a general partnership with
an office and place of business in San Clemente, California. It performs labor consulting work
representing management in labor and employment matters. During a representative one-year
period, Respondent Crossroads performed services valued in excess of $50,000 outside the
State of California. Accordingly, I find, as Respondent Crossroads admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.3
The Union is a labor organization within the meaning of Section 2(5) of the Act.
The Alleged Unfair Labor Practices
Background and Overview
Respondent’s facility in Breinigsville, Pennsylvania, near Allentown, occupies some
500,000 square feet of space. Packages are unloaded from incoming trucks, sorted and
processed, and then reloaded onto trucks for final delivery. Some 450 employees, mostly
identified as package handlers, work at the facility. Respondent employs both full time and part

1 After the trial closed, the General Counsel submitted a substitute for GCX 1(v), which
purported to be the Union’s objections to the election, but apparently is not. The substitute,
identified as GCX 1(v-2), is admitted, without objection.
2 Respondent filed a “brief” of 141 pages, a copious corruption of the word. The General
Counsel submitted one half as long. The Charging Party mercifully abstained from adding to
the paper chase by not filing a brief.
3 Hereafter, when the singular Respondent is used, it will refer to Respondent DHL.
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time package handlers on two basic shifts, the twilight shift that begins at about 7:30 p.m. and
the midnight shift that begins at about 11:30 p.m. The Breinigsville facility opened in stages in
January and February of 2007, with many of the employees transferring from a similar nearby
facility operated by ABX, which was taken over by Respondent. The management and
supervisory structure is headed by Plant or Hub Manager Shawn Swallow. Under him are an
Operations Manager and Sort Managers, as well as various supervisors and lead persons. The
lead persons are not supervisors and were eligible to vote in the Board election.
Almost from the opening of the new facility, nonemployee union organizers started
handbilling outside the large parking lot of the facility. Not only officials from the Union, but also
officials from the Teamsters union undertook these efforts. Beginning in late April, however,
employees themselves started handbilling—for the Union—on the sidewalk leading from the
parking lot to the plant entrance. The sidewalk runs about 400 feet from the parking lot to the
plant entrance, going straight for a distance and then cutting at a right angle to the entrance.
The handbilling by employees continued on consecutive Mondays through at least July 2007.
Several of the complaint allegations involve incidents of alleged interference with those
handbilling efforts, some of them implicating the use of security guards at Respondent’s facility.
Those incidents are discussed in more detail later in this decision.
Uniformed security guards, employed by Risk Protective Services, provide security
services at the facility. Those guards are admitted agents of the Respondent. There are three
security guard stations outside the facility. One of the posts covers the parking lot and the
sidewalk to the entrance of the plant. That means that security guards have responsibility for
this area, although they often simply observed the area from a parked car in the parking lot and
did not regularly patrol the sidewalk area on foot. Security guards are also stationed inside the
entrance to the facility, where they screen employees and visitors.
After the Union secured sufficient support from employees, on July 30, 2007, it filed a
petition for a Board election in a unit of Respondent’s packaging employees. Pursuant to a
stipulated election agreement approved on August 15, 2007, a Board conducted election was
scheduled for September 12 and 13, 2007. Prior to the election, both the Union and the
Respondent distributed handbills and other material to the employees urging them to vote either
for or against union representation. The Union also periodically distributed its newsletter, which
included articles authored by particular employees, including the alleged discriminatees, Elias
Sleiman and Emilia Rios. Respondent countered with handbills of its own. The Respondent
also had a labor consultant, Mark Penn, an admitted agent of Respondent, speak to groups of
employees on several occasions in late August to urge them to vote against the Union. The
employees were required to attend the meetings, which were on held on work time, and they
were paid for the time they spent at the meetings. Many of the Respondent’s employees speak
Spanish. Penn, who is fluent in Spanish, spoke separately to the Spanish speaking employees
and the English speaking employees, making basically the same points in each language. The
General Counsel alleges that, in two of the speeches, Penn made statements that were violative
of the Act. Those allegations will be considered in more detail later in this decision.
Two of the leading union activists were Elias Sleiman and Emilia Rios, part time
employees at the facility. Both were known by Respondent’s management and supervisors to
be union activists. Sleiman particularly was an outspoken union advocate, who regularly
handbilled on the sidewalk outside the entrance to the facility. On several of those occasions,
he had confrontations with security guards and managers. He was also active in asking
questions and making comments during Penn’s meetings with assembled employees. Rios
also engaged in handbilling and was the leading Spanish-speaking employee distributor and
gatherer of union authorization cards. The General Counsel alleges that, at various times from
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May through July of 2007, Respondent discriminated against Sleiman by reassigning him to
more onerous duties, restricting his movements, reducing his work hours, and issuing him a
written warning and a negative evaluation. The General Counsel also alleges that Respondent
discriminatorily discharged Rios on June 27, 2007. The complaint also contains other
allegations of Section 8(a)(1) conduct during the period leading up to the election. All of these
allegations will be discussed in more detail later in this decision.
The election was held as scheduled on September 12 and 13, 2007. The employees
rejected the Union by a vote of 217 to 135, with 3 challenged ballots that were not outcome
determinative. The Union filed objections to the election. It withdrew some of them during the
first day of the hearing, which left only objections that were coextensive with some of the
complaint allegations in the unfair labor practice case. The Regional Director also ordered that,
in determining the validity of the election, I consider conduct set forth in paragraphs 10, 11(b)
and 13 in the consolidated complaint because evidence on those matters was uncovered in the
course of the Regional Director’s investigation of the Union’s objections.
The Allegations of Interference with Employee Handbilling
The complaint alleges that, on three different occasions, on April 30, May 14, and July
30, 2007, the Respondent unlawfully interfered with employee handbilling on the sidewalk
outside the entrance of its facility. Since the employees were distributing pro-union handbills
before the beginning of the evening shift on non-work time and in non-work areas, the
handbilling was protected union activity. In paragraphs 6(a) and (b), the complaint alleges that,
on April 30, Respondent, through its security guards, who were admitted agents of the
Respondent, and other management officials, directed employees to leave the premises from
which they were distributing handbills; told them if they did not, the police would be called; and
also engaged in surveillance of employees while they were handbilling. In paragraphs 7(a), (b)
and (c), the complaint alleges that Respondent, through agents Gloria Szymborski and Human
Resources Manager Dennis Arends, engaged in unlawful surveillance and interference on May
14, by mingling and interfering with employees while they were engaged in protected handbilling
activity; and by Arends’ taunting of an employee handbiller on that occasion. In paragraph 9,
the complaint alleges that, on July 30, Respondent, again through its admitted agents, security
guards attached to the facility, engaged in surveillance of employees who were distributing pro-
union handbills.
The Facts
April 30, 2007 was the first time employees distributed pro-union handbills on the
sidewalk separating the employee parking lot and the entrance to the facility. The sidewalk runs
about 400 feet from a Y-shape at the end of the parking lot, past a right-angle turn, and directly
to the main entrance to the facility. The handbillers were stationed on this occasion, and on all
other occasions, about midway between the parking lot and the right-angle turn to the entrance.
They were thus at least 100 feet away from both the entrance and the parking lot. The
handbilling began at about 6:30 p.m., one hour before the evening shift started. Employees
Elias Sleiman and Emilia Rios, together with two other employees, William Molina and Eugene
Esterly, did the handbilling on this occasion. Sleiman was the most active of the handbillers and
he clearly was their leader. Shortly after they began handbilling, the employees were
approached by Respondent’s security guards and told to leave immediately. They were told
that they could not handbill where they were stationed, and that, if they did not leave, the police
would be called. Sleiman questioned the propriety of that order and the employees continued
handbilling, while the security guards remained among them. As a result, the Respondent
called the police, and, about 10 minutes later, the police arrived on the scene. Human
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Resources Manager Dennis Arends admitted that he was the person who directed the security
guards to order the handbillers to leave and to call the police. The security guards remained
with the handbillers until the police arrived. In addition, at one point, Sort Manager Mark Levey
approached the handbillers and told them that they were not permitted to handbill in that area.
After a while, the police talked with some non-employee Union officials, who were outside the
premises, off a public road adjoining the facility, where they offered advice and encouragement
to the handbillers. As a result of these conversations and conversations with Respondent’s
officials, the police left. Respondent concedes that the employees were entitled to handbill
during the times and at the location at which the handbilling took place.
During the time the police were present, and even after the police left, several of
Respondent’s managers and supervisors appeared outside the entrance to observe what was
happening. Arends, for example, remained at the entrance of the facility watching the
proceedings. The security guards also assembled there for about 10 minutes after they left the
area where the handbilling took place.4
Employees continued handbilling every Monday throughout the next few months.
Sleiman and Rios were among the handbillers. On May 14, while employees were handbilling
before the beginning of the shift, Human Resources Manager Arends directed one of his
assistants, Gloria Szymborski, to go outside and distribute water bottles to the incoming
employees. Apparently, the Respondent had some water bottles left over after a reception that
day inaugurating the opening of the facility. Szymborski went outside and stood among, and
very near, the employees distributing handbills. She distributed some water bottles, but she
also stood among the handbillers for a period of time without distributing water bottles.
Photographs were taken of her among the handbillers, one of her carrying a box of water bottles
and one of her without a box. Those photographs are exhibits in this case. She remained
among the handbillers for about 15 or 20 minutes, according to the uncontradicted testimony of
several witnesses, including two of the handbillers, Sleiman and Esterly, as well as Union
Representative Mark Dimondstein, who observed what was happening from his vantage point
on the road alongside the facility. Szymborski, who did not testify in this proceeding, engaged in
conversations with the handbillers, including asking how many employees were handbilling. In
response to questions from the handbillers as to why she was there, she answered that her
boss, Arends, had sent her outside and that she was told to remain with the handbillers. After
she left and went back inside, Arends came outside with some water bottles. He passed by the
handbillers and engaged them in some small talk. He then went to the far end of the sidewalk
near the beginning of the parking lot and distributed water bottles to employees as they were
reporting for work. There is no reason given on this record why Arends and Szymborski did not
distribute their water bottles near the entrance to the facility. Indeed, according to Arends, there
were some bottles of water left over the next day, Tuesday, May 15. On that occasion, Arends
and another assistant of his distributed those bottles to employees inside the entrance to the
facility.

4 The above is based primarily on the credible testimony of employees Sleiman and Esterly,
which was in substantial accord on material matters, augmented in part by the testimony of
Union Representative Mark Dimondstein, who viewed the scene from his vantage point off the
facility some 40 or 50 feet away from the action. I found particularly credible the testimony of
Esterly that Area Manager Mark Levey told the employees that they could not handbill on the
sidewalk. Sleiman and Dimondstein corroborated Esterly in this respect, even though
Dimondstein could not identify Levey by name. I reject Levey’s testimony that he did not make
such a comment since I found his testimony in this respect unworthy of belief.
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I find that Arends crafted his testimony to give the impression that his presence among
the handbillers on this occasion was unrelated to their handbilling and was motivated by a
desire to simply meet and greet employees and give out water bottles. I reject that testimony. I
find that Arends’s testimony in this respect demonstrated a lack of candor that adversely
infected the reliability of his testimony on this and other issues about which he testified. I find
instead that Arends and Szymborski deliberately injected themselves in and around the
handbillers to interfere with the handbillers and to intercept employees before they approached
the handbillers. Sleiman told Arends that his presence around the handbillers was causing the
employees to avoid accepting the handbills, and I find, in accordance with Sleiman’s testimony,
that some employees did in fact avoid accepting handbills because of Arends’s presence.
Sleiman and Arends also exchanged words, away from the other handbillers, at one
point during the evening of May 14. Sleiman testified that Arends followed him as he tried to
move away from Arends, and, when Sleiman questioned his presence there, Arends replied that
he could remain where he was and taunted him by stating, “Come on. Bring it on.” Arends
denied he made such a remark, and testified that Sleiman left the area where he was
handbilling and approached Arends where he was distributing water bottles and engaged him in
conversation. There is no doubt that the two men had a confrontation, but no other employees
overheard what was said. I believe that Arends did make the statement attributed to him by
Sleiman. Sleiman’s testimony on the point was firm and withstood vigorous cross-examination.
I found Arends to be a less reliable witness, having exaggerated his reason for injecting himself
in the midst of the handbillers, as indicated above. He also demonstrated an interest in
defending his turf. He made it clear, both to Sleiman at the time and on the witness stand, that
he had a right to be where he was on this occasion. In all the circumstances, I believe it is
perfectly plausible, and more likely than not, that he made the remark attributed to him by
Sleiman.
The employees continued to handbill every Monday at the same time and location. On
July 30, 2007, Operations Manager Pasquale Scaramuzzini noticed that non-employee Union
officials had parked their car off a public road along the outside of Respondent’s property.
These officials had stationed themselves in this area on prior occasions so that they could
oversee the handbilling and call out instructions and otherwise communicate with the
employees handbilling on the sidewalk of the Respondent’s facility. Respondent had never
before objected to their presence, although there is apparently some dispute as to whether they
were on Respondent’s property or on public property. On this occasion, Scaramuzzini directed
the security guards to call the police and confront the non-employee Union officials. The police
arrived and spoke to the Union officials. There is no allegation that Respondent did anything
wrong in calling the police or having them confront the Union officials off the public road
adjoining the facility.
The General Counsel does, however, allege a violation with respect to actions taken
against the employee handbillers on July 30. There was no police effort directed to the
handbilling employees, but several security guards approached the handbillers, according to
Sleiman, who again was handbilling on the sidewalk with several other pro-union employees.
Sleiman told them to leave, but one security guard was stationed among the handbillers for
about twenty minutes to half an hour—and very close to the handbillers—while the police were
dealing with the Union officials. The guard did not leave until the police left, even though Union
Representative Dimondstein, from his vantage point about 40 or 50 feet away, called over to
Sleiman to tell the guard to leave. Sleiman spoke to the guard who nevertheless remained
among the handbillers. The testimony of Sleiman and Dimondstein about the security guard
remaining among the handbillers on this occasion was uncontradicted and I credit it.
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Analysis
I find that Respondent unlawfully interfered with protected concerted activity when, on
April 30, its agents told handbillers that they could not handbill on the sidewalk leading to the
plant entrance, threatened to call, and actually called, the police. Sort Manager Levey and the
security guards transmitted these messages to the handbillers, and, of course, Arends was
responsible for setting these events in motion. Such conduct amounted to surveillance and
more. Respondent’s conduct was coercive and unlawfully interfered with protected union
activity. See Sprain Brook Manor Nursing Home, 351 NLRB No. 75 (2007) (slip op. at 2-3); and
North American Pipe Corp., 347 NLRB No. 78 (2006) (slip. op. at 12).
Although the General Counsel also separately alleges that Respondent engaged in
surveillance on this occasion because several of Respondent’s supervisors and managers
watched the goings on while the security guards and the police intervened, I find that such
passive conduct did not amount to a separate violation of the Act. I believe the management
officials watching the action on this occasion were simply acting as curious onlookers. The
General Counsel also alleges that the security guards remained in the area among the
handbillers and that this too constituted surveillance. For the same reason I gave above with
respect to the presence of the management officials, I believe that the conduct of the security
guards in remaining on the scene after their initial interference with the handbilling was simply a
continuation of the earlier unfair labor practice and adds nothing new in terms of unlawful
conduct. Once the police left, the employees were permitted to handbill without interference,
notwithstanding that management officials and security guards remained on the scene
observing what was taking place. I do not believe that there was anything separately coercive
in such conduct in either case. Nor would a separate finding of surveillance significantly add to
the remedy in this case, particularly since I have found a violation with respect to other aspects
of Respondent’s conduct on April 30 and I am finding a surveillance violation on other
allegations in the complaint. I therefore find the violation alleged in paragraph 6(a) of the
complaint and dismiss the allegation in paragraph 6(b) of the complaint.5
I also find that Respondent interfered with and surveilled protected activity when, on May
14, Szymborski and Arends injected themselves into the handbillers’ midst while they were
handbilling employees. Szymborski, who was sent outside by Arends, was an agent of the
Respondent on that occasion, specifically authorized by Arends to go outside and distribute
water bottles to employees while the handbilling was in progress. While there, she remained
near and around the handbillers for an extended period of time, thereby interfering with their
handbilling efforts. In all the circumstances, the employees, particularly those doing the
handbilling, reasonably believed that Szymborski was speaking and acting for Respondent’s
management while she stationed herself among them. See Albertson’s Inc., 344 NLRB 1172
(2005); and Wal-Mart Stores, Inc., 350 NLRB No. 71 (2007), slip op. at 6 and cases there cited.

5 I reject Respondent’s contention (Br. 12) that its violation was “de minimis” or somehow
“cured.” A large group of employees was privy to Respondent’s conduct, which had a
reasonable tendency to interfere with Section 7 rights. It would be natural for employees to
resist taking any of the handbills for fear of becoming embroiled in police and security guard
activity sanctioned by Respondent’s management. Nor did Respondent repudiate its unlawful
conduct, undertake broad and adequate publication of such repudiation, or formally notify
employees that it would not interfere with employee rights in the future. Indeed, it engaged in
other unfair labor practices. Thus, the requirements of Passavent Memorial Area Hospital, 237
NLRB 138 (1978) that might, in some circumstances, permit an employer to avoid liability for
violations were not met in this case.
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When Szymborski left and went back inside the facility, Arends replaced her, and he too
stationed himself in such a way as to interfere with the handbillers’s efforts. Although
Respondent tried to present their actions as an innocent effort to meet and greet employees and
offer them water, I have rejected Arends’ testimony to this effect. I find instead that the reason
he advanced was a pretext. It is clear that Arends deliberately injected himself and his assistant
into the handbilling activity in order to interfere with that activity. They could have distributed
their water to employees immediately outside or even inside the entrance to the facility, as
Arends and another assistant did the very next day. But they chose to go outside, well away
from the entrance and right where the handbilling was taking place, in a childish effort to
interfere with the handbilling. This was clearly the type of unusual and out of the ordinary
activity that permits a finding of unlawful surveillance, even though management officials are
observing protected activity on the employer’s property. See Sprain Brook Manor, supra, slip
op. at 2, and cases there cited. I therefore find that the General Counsel has proved the
violations alleged in paragraph 7(a) and (b) of the complaint.
I do not believe, however, that Arends’ remark to Sleiman on this occasion—“Come on.
Bring it on”—amounted to a separate violation of the Act. At most, the remark, which no one
else overheard, was an invitation to fight, not a threat that Arends would do anything, certainly
nothing of a physical nature. More likely, it was an angry response to Sleiman’s questioning of
Arends’s perceived right to be where he was. To the extent that the remark can be related to
Sleiman’s union activity—his handbilling—it was a part of Arends’s overall interference with the
handbilling activity on May 14. I have found such interference amounted to unlawful
surveillance. Arends’s remark to Sleiman added nothing of significance to the surveillance
finding, except perhaps that it demonstrated the interference with the handbilling was intentional
and deliberate. It also demonstrated Respondent’s antipathy and animus towards Sleiman for
his union activities, but it was not itself a separate unlawful threat. In these circumstances, I find
that the General Counsel has not proved the separate violation alleged in paragraph 7(c) of the
complaint. Accordingly, that allegation will be dismissed.
I further find that the Respondent engaged in unlawful surveillance when, on July 30, it
stationed its security guards next to the employee handbillers while the police were investigating
the propriety of non-employee Union officials being on the roadway adjacent to the facility. It is
uncontested that the employee handbillers were properly engaging in protected union activity on
the sidewalk leading to the facility so there was no legitimate reason for the presence of the
security guards in the midst of the handbilling. The testimony concerning the presence of the
guards on this occasion was uncontradicted and credible. In particular, the presence of one
guard among the employee handbillers for such an extended period, and so near them, was
unusual and out of the ordinary. It was also completely unconnected to whatever concerns the
Respondent had about the presence of the Union officials on the roadway adjacent to the
facility. Accordingly, I find that the General Counsel has proved the surveillance allegation in
paragraph 9 of the complaint. See Villa Maria Nursing Center, 335 NLRB 1345, 1353 (2001).6

6 Respondent put on evidence to the effect that its security guards are normally “posted” in
the parking lot and the sidewalk area leading to the entrance to the facility, thus suggesting that
the presence of the security guards in the midst of the handbillers was normal, perhaps an effort
to check the IDs of the handbillers to make sure they were employees. I reject any such
contention. First of all, the security guard posting is not equivalent to a security guard being
stationed on the post. Security guards were simply responsible for any suspicious activity on
the sidewalk; they were not normally positioned in that area. Nor did they simply check IDs
when they positioned themselves among the handbillers on July 30. Indeed, there is absolutely
Continued
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Various Section 8(a)(1) Violations
The General Counsel alleges that several supervisors committed violations when they
interacted with employees at the facility from about mid-April through early September 2007.
The relevant allegations are set forth in paragraphs 5, 8, 10, 11(b), and 13 of the complaint.
The evidence relating to those allegations basically involves the testimony of one employee (or,
in one case, two employees) and the supervisor.
In paragraph 5 of the complaint, the General Counsel alleges that, in about mid-April
2007, Supervisor Jeff Ng unlawfully interrogated an employee concerning her union sympathies.
The evidence in support of this allegation comes from the testimony of employee Niselle
Rodriquez. She testified that, sometime in April 2007, her supervisor, Ng, presented her with
her evaluation. Thereafter, at his computer desk, he engaged her in small talk, including asking
her what she thought about the Union. Rodriquez, who had not indicated her position on the
Union prior to this point, answered that she had heard things about the Union, but did not know
much about it. Ng then said, “It’s your choice, don’t let nobody tell you what to do.” Tr. 556.
Ng denied having a one-on-one conversation with Rodriquez about the Union, although he
testified that he had general conversations about unions in so-called pre-sort meetings with the
employees he supervised. I have no reason to discredit Rodriquez, who impressed me as an
honest witness. I therefore accept her testimony as an accurate account of what happened
between her and Ng.
Interrogations are not per se unlawful. The test for whether an interrogation is unlawful
is “whether under all the circumstances the interrogation reasonably tends to restrain, coerce or
interfere with rights guaranteed by the Act.” Bloomfield Health Care Center, 352 NLRB No. 39
(2008), quoting from Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In the circumstances of this case, I do
not find that the interrogation of Rodriquez by Ng was unlawful. Although Rodriquez’s union
sympathies were unknown, the questioning was by a low-level supervisor and did not take place
in a formal setting. The question itself was innocuous and Rodriquez’s response was
unremarkable. Significantly, Ng ended the conversation by stating that whether to support a
union or not was Rodriquez’s choice, thus signifying that he did not mean to coerce or even
influence her in that choice. The questioning was not undertaken in the context of threats or
other coercive conduct. And it appears to have been an isolated incident, certainly not repeated
by Ng. Thus, I do not believe the questioning reasonably tended to restrain, coerce or interfere
with employee rights. Accordingly, I shall dismiss the allegation of unlawful interrogation in
paragraph 5 of the complaint.
In paragraph 8 of the complaint, the General Counsel alleges that Supervisor Tom
Garritano threatened employees with stricter work rules leading to discipline and discharge if
they selected the Union to represent them. In support of this allegation, the General Counsel
offered only the testimony of employee Greg Eshbach, who testified that he found himself
_________________________
no evidence that they checked IDs on this or any other occasion when they confronted the
handbillers. By July 30, both the security guards and Respondent’s management officials knew
that the handbillers were bona fide off-duty employees legitimately engaging in protected union
activity on the sidewalk leading to the entrance to the facility. More importantly, the conduct of
the security guards remaining among the handbillers and monitoring their activities for an
extended period of time on July 30 was certainly out of the ordinary and unusual. That was
sufficient to support a finding of unlawful surveillance.
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overhearing Garritano speaking to the employees he supervised in a pre-shift meeting in the
spring of 2007. Eshbach did not work in that part of the facility, but was in the area picking up a
key for the forklift he was operating. Eshbach testified that Garritano was addressing about 15
employees, none of whom Eshbach knew. According to Eshbach, in the course of his remarks,
Garritano said that, if the Union was voted in, he could not work with it and he would have to
enforce the rules—“you’d go to the shop steward and you would just have to either get
disciplined or fired.” Tr. 450. Eshbach also said that Garritano related his remarks to his
personal experiences in the Army. Garritano credibly testified that he spoke to his employees
on occasion about his personal experience as a Defense Department employee, in which he
described the situation where wage rate employees worked side by side with general schedule
employees. He told his employees that the wage rate employees, who were represented by
unions, had much stricter rules. He also told employees that he could not predict how a union
would function if it secured representation rights at Respondent’s facility.
I cannot accept Eshbach’s testimony as an accurate portrayal of what Garritano said at
any particular meeting. His account is so truncated and difficult to understand that I cannot
make a sensible finding of fact based on his testimony. Nor was his testimony supported or
corroborated by any one else, even though several employees supposedly heard the same
remarks that he did. Garritano understandably could not even identify Eshbach as being
present in any of his preshift meetings because Eshbach did not belong there and merely
overheard what was being said. Nevertheless, Garritano’s candid testimony about what he said
generally at preshift meetings makes sense and holds together as a coherent story. It also fills
in the blanks in Eshbach’s rather disjointed account. I am convinced that Eshbach garbled what
he actually heard and that Garritano’s testimony reflects more completely what he said at all of
his meetings, including the one Eshbach was testifying about. Garritano impressed me as a
completely honest and reliable witness, whose testimony was much more detailed and
comprehensible than Eshbach’s. In these circumstances, I cannot credit Eshbach’s testimony
about what Garritano said. I credit instead Garritano’s testimony as to what he likely said in the
meeting that Eshbach overheard. Accordingly, I shall dismiss the allegation that Garritano
violated the Act as set forth in paragraph 8 of the complaint.
In paragraph 10 of the complaint, the General Counsel alleges that, in late August 2007,
Operations Manager Pasquale Scaramuzzini solicited grievances from employees and
promised unspecified benefits if they rejected the Union. The evidence in support of the
allegation comes from the testimony of employees Delvin Pena and Juan Ramon Mora Gomez.
Pena testified that, at some point shortly before the election, he and Gomez were waiting for an
elevator at the facility when they were approached by Scaramuzzini, who had just come on the
job as the Operations Manager. Scaramuzzini in fact started his employment on July 16, 2007.
According to Pena, Scaramuzzini made a comment about Pena’s ID lanyard, which had the
Union’s name on it. Scaramuzzini asked whether Pena and Gomez knew anything about the
Union. After they replied that they did, Scaramuzzini said that he did not know what was going
on before he arrived at the facility, but, now that he was here, there was no need for a union.
He continued, “I am here, and if you have a problem you address me and I promise you that this
problem will be solved.” Tr. 561-562. Gomez testified that Scaramuzzini also addressed him
on this occasion, “trying to seduce us . . . to be in the opposite side of the Union.” Tr. 582.
Scaramuzzini derided the benefits that the Union could obtain for the employees and Gomez
asked what the Respondent could do for them. According to Gomez, Scaramuzzini said he
could “do anything for me” if “we dropped . . . the Union.” Tr. 583. Gomez did not corroborate
Pena’s testimony about Scaramuzzini’s remarks concerning addressing him about problems,
and Pena did not corroborate Gomez’s testimony about Scaramuzzini’s remarks concerning
benefits.
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Scaramuzzini denied ever promising any employees that he would fix their problems
because that would have been contrary to instructions he had been given by his superiors on
how to approach the employees with respect to the union campaign. He said that he did tell
employees that he was available to answer their questions in accordance with Respondent’s so-
called “open door” policy. He specifically denied telling Pena or Gomez that he would take care
of their problems if they voted against the Union. He also denied telling Gomez, he would give
Gomez anything he wanted if he would reject the Union. He did testify that he did have a
conversation with both employees near the elevator on the second floor, but that the
conversation was about their training for new positions. In the course of that conversation, he
said if they had any questions they should come to see him.
I do not believe that the General Counsel has proved the violations alleged in paragraph
10 of the complaint. I do not credit Pena’s testimony that Scaramuzzini said that there was no
need for a union and tied that remark to the notion that grievances could be brought to him
without the need for a union. Pena’s testimony in this respect was not corroborated by Gomez,
who was also present on this occasion. Nor did I find Pena an impressive witness. I find much
more plausible the testimony of Scaramuzzini that he never made such a statement and that
any conversation with the two employees had to do with their training. Scaramuzzini impressed
me as a reliable witness and I have no reason to doubt his testimony. Gomez’s testimony about
the alleged promise of benefits is hard to comprehend. But it likewise was not corroborated by
Pena, who was present and would have overheard Scaramuzzini’s alleged remarks. I cannot
credit Gomez’s testimony in this respect. Not only was Scaramuzzini a more reliable witness
than Gomez, but Gomez’s testimony that Scaramuzzini promised him “anything” if he would
reject the Union does not ring true. In these circumstances, I find that Scaramuzzini did not
make the remarks attributed to him by Pena and Gomez. Accordingly, I shall dismiss the
allegations set forth in paragraph 10 of the complaint.
Paragraph 11(b) of the complaint alleges that, in late August or early September, Human
Resources Manager Arends threatened to discharge an employee for writing a union newsletter
article critical of Respondent and favorable to the Union. The evidence in support of this
allegation comes from the testimony of employee Nereida Oquendo. She testified that, a couple
of days before the election, Arends was distributing coupons for the Allentown Fair to
employees near the entrance to the facility. According to Oquendo, when she approached
Arends to get her coupon, he mentioned an article she had written in a recent union newsletter
supportive of the Union. The article stated that the employees should be willing to pay union
dues. Arends commented that Oquendo had been absent in the past and the Respondent had
not fired her. She responded that she had indeed been absent, but had an excuse. On cross-
examination, Oquendo reinforced and confirmed her testimony on direct when she was asked
about her pre-trial affidavit, which, in substance, supported her testimony. According to
Oquendo, Arends said, “Oh, you are the one who wrote the article in the newsletter” and she
answered that she had. And then he asked why she had written it, but before she could
answer, Arends said that she had “missed three weeks sick and the company did not even fire
me.” Tr. 534. Oquendo responded to Arends by stating that she had called her supervisor
about her absences.
Arends denied he had ever talked to Oquendo about her newsletter article. He also
denied threatening her because she had written a newsletter article. He did, however, recall
having a conversation with her, in which he reminded her, as he did with other employees, that
“DHL had looked out for their interests in the past.” Tr. 1106. He also confirmed that he and his
assistant, Geoffrey McVey, handed out tickets to employees for the Allentown Fair. On cross-
examination, Arends elaborated on how Respondent had helped Oquendo. He stated that she
had been a no-call no-show for “a number of days in a row.” He also stated that, at this time,
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Oquendo had called him to say that she wanted to “keep her job.” Tr. 1130. And he told her that
she was welcome to return. Arends nevertheless denied that he reminded Oquendo of this
when he gave her tickets for the Allentown Fair.
I credit Oquendo’s testimony. She impressed me as an honest witness, who withstood
vigorous cross-examination and reinforced her testimony by reference to her pre-trial affidavit.
Arends, on the other hand, did not impress me as a reliable witness, particularly when he was
testifying about his involvement in the handbilling activities of employees on May 14. He had a
distinct tendency to testify in conformity with Respondent’s litigation theories rather than to
candidly and truthfully testify about what happened. Moreover, his testimony on cross-
examination concerning the Oquendo incident tends to confirm that of Oquendo. It certainly
confirms the context of her testimony. Arends did indeed do her a favor in the past. He
basically excused what would have amounted to a dischargeable offense. It would have been
plausible for him to remind her of it, as she testified, when Arends spoke to her about her
newsletter article in the course of giving out tickets to the Allentown Fair. Nor do I credit
Arends’s testimony that he never mentioned the adverse newsletter article. That too would
have been plausible, particularly in view of the intensity of the union campaign and the notoriety
of newsletter articles generally during the union campaign. My assessment of the situation, as
well as my observation of Arends’ demeanor, also convinces me that Arends viewed Oquendo’s
newsletter article in favor of the Union as a personal betrayal, especially because he had done
her a favor in the past. In view of my credibility determination, I find that Arends did indeed
mention the newsletter article to Oquendo and made a reference to not having fired her in the
past. The clear implication of his statement was that the Respondent had the authority to retain
or discharge employees and would exercise this authority based on whether an employee
supported the Union or not. This amounts to a threat to retaliate against employees because of
their union activities. Accordingly, I find that Respondent has violated the Act, in accordance
with the allegation in paragraph 11(b) of the complaint.
In paragraph 13 of the complaint, the General Counsel alleges that Supervisor Sam
Manzano threatened an employee with more onerous working conditions if employees voted for
the Union. The evidence in support of that contention was based on testimony from employee
Elisa Alonzo, who speaks Spanish, not English. She testified that, a few days before the
election in early September, in one of the break areas, Supervisor Manzano, who was not her
supervisor, but who also spoke Spanish, had a conversation with her in Spanish. Her own
supervisor, who did not testify, was also present, but he spoke only English. According to
Alonzo, Manzano told her that she should not vote for the Union because it was “no good.” He
related that he had family members, who had worked in a unionized operation, and the
experience was not a good one. Manzano also said that if a union came in, “the supervisors
could not help the workers, they could only watch.” Tr. 442. Alonzo explained that Manzano
said the supervisors could not help with “pulling the sled or the pallets,” something she
described as “heavy work.” Tr. 442. Manzano testified generally that he often told employees
about the bad experiences his family members had had working in union environments, but
insisted that he also told employees that he could not speak for what would happen at
Respondent’s facility if the Union won the election. Manzano’s testimony about the
conversation with Alonzo was sketchy. In response to a question by Respondent’s attorney as
to whether he recalled having a conversation with Alonzo, Manzano stated, “I don’t specifically
recall speaking to her, but I have no reason to say I didn’t, either.” Tr. 865. He then responded
to another general question about his family member’s experience in a unionized plant by
repeating that he made sure the employees understood that what happened there did not
necessarily mean that that would happen at Respondent’s facility. In view of Manzano’s lack of
specific recollection concerning their conversation, and Alonzo’s more reliable and detailed
recollection of that conversation, I credit Alonzo’s account.
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Manzano’s statement that, if a union were voted in at Respondent’s facility, the
supervisors would not help the employees with their work amounted to a threat that the
employees would suffer an adverse change in their working conditions if the Union came in.
The context of the statement carries the clear implication that, at present, the supervisors do
help employees with their work, especially the heavy work of pulling sleds or pallets. Otherwise,
there would be no need to phrase the statement the way it was phrased. Neither in Manzano’s
testimony nor elsewhere in the record is there any support for the notion that supervisors did not
help employees with their work, prior to Manzano’s statement. Manzano’s statement to Alonzo
was also separate from and completely unrelated to Manzano’s other statements about the
adverse effects of a union on his family members. Thus, his testimony that, as a general
matter, he would caution employees that he did not know whether the effects of a union on
Respondent’s operations would be the same does not operate to exonerate him from the effects
of his specific statement to Alonzo about not helping employees. Nor was there any evidence
that Manzano’s statement to Alonzo referred to possible union rules governing work in the
operations of unionized employers. Manzano gave no such explanation in his testimony. In
these circumstances, I view Manzano’s statement to Alonzo as an unlawful threat that, if the
Union were voted in, employees would be subjected to stricter and more onerous working
conditions. Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act, as set
forth in paragraph 13 of the complaint.
The Allegations Involving Labor Consultant Mark Penn
As indicated above, Mark Penn, a labor consultant utilized by Respondent and an
admitted agent of Respondent, as well as Respondent Crossroads, is accused of committing
two unfair labor practices in speeches he gave to employees. Paragraph 11(a) alleges that, on
August 21, 2007, in remarks addressed to assembled employees, Penn threatened to sue an
employee for writing a newsletter critical of Respondent and supportive of the Union. Paragraph
12 alleges that, in another speech to employees in late August 2007, Penn threatened
employees with the “loss of their regularly scheduled annual wage increases if they selected the
Union as their collective bargaining representative.”
The Alleged Threat To Sue
The Facts
Penn gave at least three different sets of speeches to groups of employees, all of which
were given separately in Spanish and in English. The first speech, delivered on the week of
August 14 and 15, was generally about the Act, the Board and the Board’s election process. At
that meeting, Penn spoke a bit about his own background, which included stints as a union
organizer and as a labor consultant for management. He testified he made presentations
similar to the ones he made for Respondent some 250 times over the course of his career as a
labor consultant. He does not utilize a written script for his presentations. In his first speech, he
also mentioned that, in his work as a union organizer, he felt he had helped employees in only
three out of ten campaigns. Penn testified that he told employees, “That’s three out of every ten
times I could honestly say the employees at this company are better off with the union than they
were before the union came in. But seven out of ten times, I personally felt that we left the
employees in either the same situation or worse, and I say worse only because we didn’t solve
their problems yet they were now paying union dues.” Tr. 692. According to Elias Sleiman, who
attended this meeting, Penn advised employees that, when he worked as a union organizer,
“they did not help the people as much as the union organizers tell us. . . . They only help three
out of each ten people that pay dues into the union.” Tr. 230. At that point, an employee
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named Millie called Penn a liar and a thief. She called out, “You’re a thief, you stole my money.”
Tr. 230-231. Sleiman also testified that Penn said he was hired by Respondent to advise it on
labor law “because the labor law is so complicated and any word up or down would make it
legal or illegal.” Tr. 230. Sleiman’s testimony about Millie’s remarks and Penn’s reference to
labor law being complicated in this meeting was uncontradicted.
Shortly after Penn’s first set of speeches, an article appeared in the Union’s August 20,
2007 newsletter, written by Sleiman, in which he criticized Penn. Sleiman’s article referred to
Penn as a “union buster,” and discussed Penn’s initial speech to employees. The article
includes the following:
This union buster started lying in the first five minutes of the meeting. He said he
is just a labor consultant and is here to advise the company about labor laws so they
stop breaking those laws. If that’s true, why isn’t he upstairs educating managers and
supervisors instead of conducting anti-union meetings with the workers?
This union buster also admitted a personal role of misrepresenting union members and
lying to them about “stealing” their money. I don’t know about the laws in Massachusetts
but in Pennsylvania you go to jail for that.
Now DHL brings in this union buster to tell us the “truth” and the “facts.” Isn’t that ironic!
The fact is, that for over 100 years the answer to workers mistreatment, disrespect,
favoritism, harassment, disregard and abuse is a union. It’s time tested and proven
over and over again and hiring a liar to tell us otherwise is not going to change the facts.
Penn’s second set of meetings took place on August 21 and 22. At one of those
meetings, which was in English and which Sleiman attended, Penn referred to Sleiman’s article.
He read the initial two paragraphs cited above and denied the substance of the accusations.
According to Penn, he told employees he never said, as the article mentioned, that he was hired
“to advise the company about labor laws so they stop breaking those laws. So I corrected the
record. I said I never said that in the first meeting. What I said . . . was . . . yes, I am here to
communicate the company’s position and make sure it’s done in a lawful manner, but never
implied or inferred that the company had been breaking the law.” Tr. 696. He also said that,
contrary to the implication in the article, he did meet with managers and supervisors of the
Respondent. Tr. 696. Penn also testified as follows concerning what he said about the second
paragraph he read to employees:
I told employees that I believed that this statement crossed the line. . . . I
strongly believe this is defamatory. And I told them that, first of all, I never, never said
that, okay, never mind admitting to saying that, I never said that, never did it. Mr.
Sleiman, I believe he stood up and he said, well, yes, you did say that. And although I
don’t remember exactly what he said, he said, you know you said that you only helped
three out of ten employees, he said, not companies, that you only helped three out of ten
employees and that means that you stole money from the rest of them, something to that
effect. . . . And then I reminded the entire group, I said if you remember, what I said was,
and then I repeated what my testimony was about the first meeting, exactly that I felt,
you know, I could only hold my head high three out of ten times. Tr. 697
Sleiman testified that, during his exchange with Penn at this meeting, he said that he wrote only
“what I understood from [Penn’s] last meeting and nothing else and that’s the truth and I would
not apologize for me telling the truth.” Tr. 235. According to Sleiman, Penn then said that he
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was not “talking about three out of every ten employees, it was three out of every ten
companies,” which Sleiman thought “means the same thing.” Tr. 235.
Penn also told the employees that if Sleiman did not retract the statements made in the
article, he would consult his attorney to see if he could sue Sleiman for defamation. According
to Penn, he said, “I want a written retraction or else I will consult with my attorneys to explore all
legal option[s] that are available to me including a possible lawsuit.” Tr. 697-698. Sleiman and
a group of employee witnesses who supported his testimony confirmed that Penn explicitly
threatened to sue Sleiman for defamation. A group of Respondent’s witnesses testified,
contrary to Penn, that he simply threatened to consult his attorney.7 Nevertheless, it is clear
from Penn’s own testimony that he mentioned at least the possibility of a lawsuit. He said, in
substance, that he intended to sue if there was no retraction, and any reasonable person would
understand him to mean exactly that. Moreover, Penn was clearly angered by what he viewed
as an attack on his integrity and it would have been natural for him to react by explicitly
threatening to sue, in accordance with the testimony of Sleiman and other employee witnesses
who supported his testimony. In these circumstances, and in view of the clear implication of
even Penn’s account of what he said, I find that Penn did indeed explicitly threaten to sue
Sleiman for his article, unless he retracted his statements.
Significantly, although he never actually initiated a law suit, Penn testified that he did
indeed consult a lawyer—in fact, more than one, although none was an expert in the law of libel.
According to Penn, he dropped any notion of a lawsuit because he viewed a subsequent
newsletter article by Sleiman as an effective retraction. In that article, in the August 27
newsletter, Sleiman wrote as follows:
I would like to take this opportunity to thank all of my co-workers for their support
in response to the latest intimidation ploy by DHL when their $475/hour “hired gun”
Mike Penn publicly threatened to sue me for my last article. He said in his first anti-
union meeting that as part of the leadership of a Teamsters local they took dues money
from every ten people and they only helped three people. To take money and not fairly
represent everybody in my opinion is “stealing.” I was not the only one who heard him
say what I remember his saying. When other workers told him he should be ashamed
of himself for what he said he did, he never “corrected” them in that meeting. Like I told
all of you before, after other labor law violations that DHL committed against me, I will
not be silenced and I will stand by you and fight until we win. RX 20
Despite testifying that he viewed the above as a retraction, Penn never mentioned to employees
in subsequent meetings with them, or in any other manner that he viewed the Sleiman article as
a retraction. Nor did he ever mention to employees—or to Sleiman, for that matter—that he had
decided not to sue Sleiman for defamation.

7 I reject that testimony in view of Penn’s admission he threatened a possible lawsuit if
Sleiman did not retract his statements. Penn did not withdraw that admission when he later
denied Sleiman’s testimony that Penn threatened a lawsuit that would cost Sleiman “big” (Tr.
716). Although I doubt if Penn explicitly threatened his lawsuit would cost Sleiman “big,”
Sleiman and his fellow workers could well have inferred the possibility of a large liability from
such a lawsuit. For purposes of this case it is irrelevant whether that possibility was made
explicit.
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Analysis
It has long been accepted Board law that threats to sue for engaging in protected
concerted activity, as opposed to the actual filing of lawsuits for engaging in such activity, are
violations of the Act. S.E. Nichols Marcy Corp., 229 NLRB 75 (1977). Such threats reasonably
tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
See United States Postal Service, 350 NLRB No. 12 (2007), enf’d. 184 LRRM 2075 (11th Cir.
May 2, 2008), citing authorities; and Network Dynamics Cabling, Inc., 351 NLRB No. 98 (2007),
slip op. at 5. Nothing in BE & K Construction Co., 351 NLRB No. 29 (2007), which held that
retaliatory but reasonably based lawsuits do not constitute unfair labor practices, alters this
approach. See discussion in United States Postal Service, supra, 350 NLRB No. 12, including
at n. 1. Indeed, at the time of the Nichols case, all lawsuits by employers, whether or not
retaliatory or reasonably based, were immune from an unfair labor practice finding. See
discussion at n. 2 of the Nichols case, supra.8
A threat to sue an employee for writing a pro-union article in a newsletter distributed to
employees during a union campaign obviously tends to interfere with or coerce employees in
the exercise of their protected rights. Employees are permitted to advance their views on
unions, even in boisterous language, so long as their views are not maliciously false, that is,
made with knowledge of their falsity or with reckless disregard for their truth or falsity. See
Valley Hospital Medical Center, 351 NLRB No. 88 (2007), slip op. at 3-4, and cases there cited.
“Where an employee relays in good faith what he or she has been told by another employee,
reasonably believing the report to have been true, the fact that the report may have been
inaccurate does not remove the relayed remark from the protection of the Act. . . . In addition, in
the context of an identified, emotional labor dispute, the fact that an employee’s statements are
hyperbolic or reflect bias does not render such statements unprotected.” Ibid, citing numerous
case authorities.
Indeed, those same principles are reflected in cases dealing with state court defamation
actions against unions or their agents for statements made in the context of a labor dispute.
Courts have recognized that statements in hotly contested labor campaigns are often
statements of opinion or figurative expression, incapable of being proved true or false in any
objective sense. See Steam Press Holdings v. Hawaii Teamsters Local 996, 302 F.3d 998,
1005-1009 (9th Cir. 2002), cert. denied, 537 U.S. 1232 (2003). See also Jolliff v. NLRB, 513
F.3d 600, 609-617 (6th Cir. 2008). As the Sixth Circuit stated in Jolliff, citing numerous
authorities, debate in labor disputes may well include “vehement, caustic, and sometimes
unpleasantly sharp attacks.” Id. at 609. Again citing authorities, the Court also emphasized that
“rhetorical hyperbole, a vigorous epithet” and “loose, figurative, or hyperbolic language” merit
protection. Id. at 610. Such language is not even viewed as a factual misstatement. Id. at 610-
611 and cases there cited. Manifestly, such statements are not viewed as “maliciously untrue”
or made “with knowledge of their falsity or with reckless disregard for their truth or falsity.”
Valley Hospital Medical Center, supra, 351 NLRB No. 88, slip op. at 3. “Before the test of
reckless or knowing falsity can be met, there must be a false statement of fact.” Steam Press
Holdings v. Hawaii Teamsters, supra, 302 F. 3d at 1009, n. 6, quoting Old Dominion Branch No.

8 Nor can it be argued that a threat to file a lawsuit is “incidental” to the filing of a lawsuit,
thus implicating the constitutional underpinnings of BE & K. As the Board stated in United
States Postal Service, supra, 350 NLRB No. 12, slip op. at 1-2, that notion was specifically
rejected by the District of Columbia Circuit in Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d
601 (D.C. Cir. 2007).
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496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974). Respondent bears the
burden of proving both false statements of fact and malice. See Diamond Walnut Growers, 316
NLRB 36, 47 (1995).
Applying the above principles, I find that Sleiman’s newsletter article remained a
protected activity, notwithstanding his harsh attack on Penn. Respondent has not satisfied its
burden of proving that the article contained false statements of fact or that such false
statements of fact were made with malice. Sleiman’s article was mostly hyperbole and devoid
of direct statements of fact that could even be challenged as false. Of the two paragraphs Penn
found offensive, the first one simply calls him a “union buster” who assertedly was trying to keep
Respondent from “breaking the law.” This is mild stuff in the tough banter of a typical union
campaign. The second paragraph is rather cryptic without context, but apparently refers to
Penn’s statement, in his first meeting with employees, that, as a union organizer, he was only
able to help employees in three out of ten campaigns. Sleiman described Penn’s role in that
respect as misrepresenting members, lying to them and stealing their dues money. In a sense,
Sleiman was simply describing another employee’s emotional reaction to Penn’s remarks in that
first meeting. It was she who called him a “thief” and a “liar.” As Sleiman made clear in a
subsequent article, the use of those words in his article was a rather colorful and hyperbolic
reference to Penn’s failure, as an organizer paid from the dues of union members, to adequately
represent their interests. This was not meant as a statement of fact, but rather as a rhetorical
comment. Finally, Sleiman’s opinion—and that is what it was—that Penn’s lying to union
members and stealing their dues was actionable under the laws of Pennsylvania was
exaggerated campaign rhetoric, not a misrepresentation of fact. None of those statements were
demonstrably misrepresentations of clear fact. Nor do I believe they were viewed as such by
any of the employees—or, indeed, any reasonable person reading those statements. This is
particularly so because, in the same meeting in which he threatened to sue Sleiman, Penn
carefully and explicitly corrected what he considered objectionable in Sleiman’s article.
In any event, even assuming some factual misrepresentations, nothing in the two
paragraphs deemed objectionable by Penn were indicative of malice, which requires a showing
that the statements were made with knowledge that the statements were false or with reckless
disregard of whether they were or not. The harshest statements, accusing Penn of lying and
stealing when he was a union organizer, simply parroted the accusations of another employee
at Penn’s first meeting. Indeed, Sleiman’s subsequent article makes it clear that his original
statements were not made with malice. See Joliff v. NLRB, supra, 513 F.3d at 614-617.9
I find therefore that Sleiman’s statements remained protected concerted activity and that
Penn’s threat to sue for such protected statements was coercive and violative of the Act.
Penn’s threat to sue was especially chilling because, as he testified, he had carefully rebutted
Sleiman’s article in the same meeting. Thus, the allegedly offensive statements were corrected.
But the threat to sue never was retracted and stood as a reminder to employees not to cross
Penn or the Respondent with strong pro-union statements. Sleiman himself testified that he
lessened his previous outspoken opinions on union issues after Penn’s threat because he
starting thinking about “what I should [or] should not say.” Tr. 340. Penn’s failure to notify the
employees, to whom he had announced his intention to sue Sleiman, that he had, after reading
Sleiman’s second article on the matter, decided not to initiate a lawsuit, exacerbated the

9 As the General Counsel points out (Br. at 31), employee statements accusing an employer
of being a “crook,” “liar,” or “thief” in the course of engaging in protected activity have not been
found sufficient to render such activity unprotected. See General Chemical Corp., 290 NLRB
76, 82-83 (1988) and other cases cited in the General Counsel’s brief.
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coercive effect of his threat. He thus let linger in the minds of employees the notion that
boisterous language by employees in support of the Union would be met with the possibility of a
lawsuit. That message certainly has the reasonable tendency to chill and interfere with union
activities. I accordingly find that Penn, on behalf of Respondent DHL and on behalf of his
employer, Respondent Crossroads, violated the Act as alleged in paragraph 11(a).
The Alleged Threat That Regular Wage Increases Would Be Lost
In Penn’s third set of meetings, which took place on August 28 or 29, he discussed the
collective bargaining process as a general matter, once a union was selected by employees.
He referred to a chart on a white board, on which he had written out, both in English and in
Spanish, some of the steps in the process and some of the terminology related to the process.
Prominently displayed on the white board was the term “status quo.” The white board chart was
prepared by Penn before his meetings and the board was moved to the different locations of the
meetings. Both sides presented employee witnesses, some Spanish speaking and some
English speaking, who heard the speeches and gave dueling accounts of what Penn said at this
set of meetings. Unfortunately, their accounts of what was said were very selective and
incomplete. The General Counsel’s witnesses testified that Penn described how long the
negotiating process could last and he also said that, during that period, wages would be
“frozen.” Respondent’s witnesses denied that the word “frozen” was mentioned in connection
with wages or benefits during the negotiating process and emphasized instead that the word
“status quo” was mentioned in connection with the statement that wages and benefits would
remain the same during bargaining. It would be very difficult for a trier of fact to determine what
was said just from the testimony of employees. Obviously, the employees testified about what
they remembered most about Penn’s remarks concerning collective bargaining. They did not
intentionally lie, but they definitely shaded their testimony. Thus, I cannot base my findings
solely on such testimony.
Instead, I rely chiefly on Penn’s testimony about what he said in this third set of
meetings. He had given similar speeches both in Spanish and in English for many years. His
account of his remarks at this set of meetings was the most comprehensive of the accounts
given by the witnesses in this case. His testimony was detailed and it placed his remarks in
appropriate context. For example, a Union newsletter, distributed sometime before the August
27 or 28 speeches, had accused him of having violated the Act in an earlier speech to
employees of another employer, several years before. On that occasion, the Board found that
Penn threatened employees by stating that their wages would be frozen during negotiations.
Penn was candid in explaining this prior brush with the law, and, when it was brought up by an
employee in one of his meetings, he admitted his error. He also explained that it was
inappropriate to say that wages would be frozen during negotiations and he was not making that
claim to Respondent’s employees. Indeed, I believe he avoided the word precisely because he
had been burned before when he used it. I believe, instead, that he concentrated on the word
“status quo” and explained that all existing wage programs and benefits would remain as they
were and would stay the same throughout negotiations, as he emphasized in his testimony.
That his testimony in this respect was supported by some employee witnesses, as well as by
Plant Manager Swallow, who introduced Penn and remained at the meetings to hear his
remarks, simply enhances Penn’s testimony. I also find significant that Penn specifically wrote
the word “status quo” on his white board presentation before making his remarks.
To the extent that some of the General Counsel’s witnesses may have suggested that
Penn specifically threatened that Respondent’s existing pay for performance and periodic wage
increase program would be halted during negotiations, I reject that testimony. I am convinced
that Penn made no such reference to Respondent’s particular wage increase program. His
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remarks were addressed generally to what an employer could or could not do with respect to
existing wage and benefit programs, during negotiations. Significantly, Swallow told employees,
at this and other meetings, that any specific questions about Respondent’s own policies and
benefits should be addressed to two corporate human resources experts, who were in
attendance at the meetings. This tends to confirm that Penn did not address the specific wage
and benefit policies of the Respondent in his remarks.
In short, in accordance with Penn’s testimony, I do not believe that Penn suggested that
Respondent would not continue existing wage and benefit programs if the employees selected a
union to represent them. What he did say was that such programs would “stay the same” or
remain “status quo” during negotiations. That, of course, was an accurate statement of existing
law. Indeed, in some circumstances, even a reference to wages typically remaining frozen
during negotiations is perfectly lawful. See Flexible Industries, Inc., 311 NLRB 257 (1993) and
Mantrose-Haeuser Co., 306 NLRB 377 (1992). Accordingly, I will dismiss the allegations in
paragraph 12 of the complaint.
The Sleiman Discrimination Allegations
It is settled law that, in order to establish a finding of discrimination, the General Counsel
must make an initial showing that a substantial or motivating factor in the employer’s adverse
action against an employee was the employee’s union or other protected concerted activity. As
part of that initial showing, the General Counsel may show that the employer’s reasons for its
action were false or pretextual. Also indicative of an initial showing of discrimination is the
timing of the action at or near the time of the employee’s union activity. Once the General
Counsel has made such an initial showing, the burden of persuasion shifts to the employer to
show that it would have made the same decision, even absent the union or protected activity.
See Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); and NLRB v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984).
In paragraphs 14(a), (b), (c), (d) and (e), the General Counsel alleges that Respondent
discriminated against employee Elias Sleiman by reassigning him to a more onerous job,
restricting his movements, reducing his hours, issuing him a written warning and issuing him a
negative evaluation. It is uncontested that Sleiman was a known union activist. He was heavily
involved in handbilling employees every Monday before the beginning of the twilight shift from
late April through late July 2007. He was considered the leading employee spokesman during
the handbilling, often telling Respondent’s officials and agents to stop interfering with the
handbilling activity, which Respondent unlawfully interfered with and surveilled. At one point,
during his handbilling, he was confronted by Human Resources Manager Arends and told to
“bring it on.” He also wrote widely distributed newsletter articles promoting the Union’s position
and criticizing the Respondent’s position in the union campaign. He was also outspoken in
employee meetings in which the Respondent sought to convince employees to reject the Union.
It is in this context that I view the above complaint allegations involving Sleiman and apply the
above principles dealing with union-based discrimination.
The Alleged Reassignment to More Onerous Work
In support of this allegation, the General Counsel relies primarily on Sleiman’s testimony.
He testified that, in April and May, 2007, he operated a “tugger,” an electric-powered cart that
pulls a small trailer. According to Sleiman, on May 2, 2007, Sort Manager Levey asked him to
work on the other side of the building. When he got there, another supervisor, Trevor
Steigerwalt, asked him to park his tugger and work in the unload area, unloading trucks.
Steigerwalt told him that he would be doing this work for a “couple of weeks.” Tr. 171-173.
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Actually, Sleiman was switched with Lenny Bryant, who formerly did the unload job. The
unloading work involves picking up boxes inside a truck and putting them on a conveyor belt
that runs from the inside of the truck and into the facility. Sleiman had occasionally unloaded
trucks before, but he views that as harder work than lifting boxes on to and off of the tugger.
There are, however, harder jobs at the facility, according to other witnesses, including Plant
Manager Swallow, whom I found particularly reliable on this point.
According to Sleiman, after two weeks, he went to Levey and asked when he was going
back to his old job. Levey told him, basically, “if Trevor put you there then you stay there.” Tr.
174. Sleiman also complained to Steigerwalt, who said the present situation was working well.
About a week later, according to Sleiman, he prepared a letter to Plant Manager Swallow,
complaining about the assignment. Although the letter (GCX 13) is dated May 7, 2007, it was
not delivered to Swallow until late May. Sleiman also testified that “[t]he union helped” him write
the letter (Tr. 322). As a result, Sleiman met with Swallow and another manager, after which
Swallow offered Sleiman a choice of three other jobs, including one in the quality control
department that he accepted.
Respondent’s evidence on the transfer or reassignment is decidedly to the contrary.
According to Respondent’s witnesses, the transfer took place in mid or late March, well before
Sleiman began his open union activities. Sort Manager Mark Levey, who essentially made the
decision to reassign Sleiman, testified that, at the beginning of 2007, Sleiman ran a tugger
transporting misrouted packages to the correct reloading areas for outbound connections.
Sleiman was one of several employees who did this work; the tugger operators were not part of
the quality control department. According to Levey, Sleiman was moved off the tugger in mid-
March of 2007, at a time when he did not know Sleiman was a union supporter. Levey moved
Sleiman off the tugger in order to cross-train other employees on the tugger and because
Sleiman had some performance issues while he was on the tugger. Levey noticed a lot of
“missorts that were left in the west end of the building he was responsible for. He was talked to
numerous times to make sure that those packages get services between Reloads 1, 2, 3, and 4.
He was leaving those reloads to go deliver freight throughout the building.” Tr. 1000.
Steigerwalt corroborated much of Levey’s testimony about the tugger position. Steigerwalt had
been given the authority over some tuggers, including Sleiman, in early March of 2007.
Steigerwalt perceived a problem with the overall performance of the tuggers under his authority.
He asked that he be given Lenny Bryant as a tugger operator because he had previously
worked with Bryant and was favorably impressed by him. Both Steigerwalt and Levey
confirmed that Levey agreed and that Sleiman and Bryant essentially switched jobs.
Steigerwalt and Levey also each established that the date of the reassignment was in mid-
March because they recalled a specific incident that took place at the facility in late March, after
the Sleiman reassignment. Swallow also testified about the meeting he had with Sleiman, in
which Sleiman was taken off the unloading assignment and brought into quality control.
Swallow denied the charge in Sleiman’s letter to the effect that he was removed from the tugger
and assigned to unload trucks because of his union activities. Swallow also said that he had no
problem with taking Sleiman off the unloading job, but he did not want to put him back on the
tugger because of Sleiman’s problems when he ran the tugger.
As to the crucial issue of the date of Sleiman’s reassignment, I credit the testimony of
Levey and Steigerwalt, which was clear, coherent and mutually corroborative. Sleiman’s
testimony that the reassignment was made on May 2 does not withstand analysis. The letter he
sent to Swallow complaining about the assignment was dated May 7. It was purportedly written
after he learned that the two-week or temporary assignment was going to be more permanent
and after he consulted some union officials who helped him write the letter. Sleiman’s time line
is thus broader than the 5 days that elapsed from when he says the reassignment was made
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and the date of the letter. I found that Sleiman’s grasp of dates was generally faulty. For
example, he insisted that Penn’s threat to sue him came in the same meeting in which Penn
discussed wages and benefits during bargaining. That turned out to be wrong. I find it much
more likely that the reassignment was made in mid-March, as Levey and Steigerwalt testified.
To the extent that Steigerwalt had anything to do with the decision, in terms of recommending it,
I find that he credibly testified that his reasons for reassigning Sleiman were business-related.
Indeed, his assessment of the tugger problem also caused him to make another reassignment
at about the same time; he took another employee, Carl Yates, off his tugger position.
Moreover, I credit Levey’s testimony that he spoke with Sleiman on several occasions about
Sleiman wandering off with the tugger into areas where he was not supposed to be. On cross-
examination, Sleiman reluctantly admitted that Levey had had at least one such conversation
with him about two months before a confrontation between the two of them in June 2007. On
balance, I found Levey’s testimony more reliable than Sleiman’s on whether Sleiman wandered
inappropriately about the facility in the tugger. I also credit both Levey and Steigerwalt that the
tugger position was and is different from a position in the quality control department. Their
testimony is also supported by that of Swallow. Sleiman’s testimony on this point was quite
ambiguous and tended to suggest that he was both a tugger and an employee assigned to the
quality control department. That point is not supported by the evidence.
In view of my credibility determinations set forth above, I find that Sleiman’s
reassignment from the tugger position to the unload position took place in mid-March 2007, well
before his union activities were generally known. I also find that the assignment was made for
justifiable business reasons, as set forth by Levey and Steigerwalt. Indeed, at about the same
time, another employee, Carl Yates, was removed from his tugger position. Moreover, I find
that Swallow’s resolution of Sleiman’s complaint about the assignment was incompatible with
what might be expected of a decision originally based on anti-union considerations. Once the
matter was brought to Swallow’s attention, he quickly offered Sleiman relief from what Sleiman
viewed as an onerous assignment, so long as Sleiman was not put back on the tugger. Nor did
Sleiman insist on being put back on the tugger. In these circumstances, I find that the General
Counsel has not proved that the reassignment of Sleiman from the tugger to the unload position
was based on his union activities. But even if the General Counsel had met his initial Wright
Line burden on this point, I find that Respondent would have made the reassignment even in the
absence of Sleiman’s union activities. Accordingly, I will dismiss the allegation in paragraph
14(a) of the complaint.
The Alleged Restriction of Movement
As to the allegation about restriction of movement, the General Counsel again offers the
testimony of Sleiman. On June 14, according to Sleiman, Levey and his immediate supervisor,
William Wilkinson, approached him, at which time Levey complained that Sleiman had taken
eight minutes for a smoke break. Levey also told Sleiman that, the day before, he had seen
Sleiman out of the quality control area. Levey told Sleiman that he was not to take unauthorized
breaks and that he would have to remain in the quality control area, unless he had permission
from a supervisor. According to Sleiman, those restrictions still apply, and only to him. He also
testified that, before the restriction, he spent about 95% of his time outside the quality control
area.
By the time of the Levey-Sleiman conversation, Sleiman had been taken off the unload
position, at his request, and placed in the quality control department. Levey credibly testified
about the job duties of that position. According to Levey, quality control employees are not to
leave the quality control area and look for damaged freight. Ordinarily, other employees bring
damaged packages to the quality control area, where the quality control people repair or rewrap
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the packages and put a new airbill on them. Plant Manager Swallow confirmed that only rarely
would quality control employees leave their area to pick up or repair damaged packages. Levey
testified that he spoke to Sleiman about taking a long smoke break without the prior permission
of a supervisor and also about wandering away from the quality control area. Levey placed the
conversation on June 13 rather than June 14. According to Levey, Sleiman was not actually
doing any work when he noticed Sleiman out of his work area; Sleiman was reading a
magazine. The latter complaint is similar to others Levey made about Sleiman’s wandering off
when he was on the tugger. Nevertheless, Levey denied telling Sleiman that he was restricted
to the quality control area while he was on the clock.
I do not accept Sleiman’s testimony insofar as it purports to support the allegation in
paragraph 14(b) of the complaint. I believe, in accordance with Levey’s testimony, that Levey
did not restrict Sleiman to the quality control area, although he may have told Sleiman not to
wander around the facility, as he had done on many prior occasions when he was a tugger.
That was consistent with the normal job duties of a quality control employee, who generally
works in a dedicated area. I also believe Levey’s testimony that, on this occasion, Sleiman was
observed out of his work area without having a work-related reason for being out of the area. I
believe Sleiman exaggerated or misunderstood the conversation he had with Levey about his
smoke break and being outside his work area. That conversation, which is fulcrum of this
allegation of the complaint, is also discussed below in connection with Sleiman’s June 27 written
warning.
Sleiman’s testimony about the alleged restriction is questionable. I doubt very much
Sleiman’s testimony that, before the alleged restriction, he spent 95% of his time outside the
quality control area. Indeed, another witness for the General Counsel, Nereida Oquento, a full-
time quality control employee, who sometimes worked on the second floor, where Sleiman did
not, estimated that she only worked outside the quality control area half of her time. She also
testified that there is an area set aside for quality control with tables on which the employees
repair damaged packages. In fact, as of June 13 or 14, Sleiman had been in the quality control
department for only about two weeks, having been permitted to work there by Swallow at the
end of May or at the beginning of June. Sleiman’s view that he was always a quality control
person, except for the time he spent in the unload position, is somewhat strained. I found his
testimony about his job responsibilities before June of 2007 to be quite confusing. I am
convinced that he was a tugger operator until his reassignment to the unload position. Although
he may have done some work on damaged packages, he was not assigned to the quality
control department until after his meeting with Swallow. In all the circumstances, I believe that
Sleiman confused the wide arc of his job as a tugger before he was reassigned to do unloading
work with his job in quality control after Swallow put him there. I believe that this confusion
caused him to exaggerate or misunderstand Levey’s conversation with him on June 13 or 14.10

10 I am also aware of the documentary evidence showing the rosters of Respondent’s
employees, which consistently lists Sleiman in the quality control department from early 2007.
GCX 36. I am not sure how that evidence impacts this allegation, or, indeed, this case, but I am
convinced, from the testimony of Swallow and other management witnesses, particularly
Steigerwalt, that those rosters were not entirely accurate. Steigerwalt specifically and credibly
testified that the rosters were not relied upon on a daily basis by supervisors. In the first few
months of Respondent’s operations at its new facility there was a lot of confusion, certainly
about job titles and job duties. This is also shown by Sleiman’s testimony, which confusingly
placed himself both as a quality control person and employee who also ran the tugger. In any
event, I put no great weight on the validity of the rosters insofar as making significant findings in
this case.
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Accordingly, I find that the General Counsel has failed to show that Respondent
restricted Sleiman’s movements because of his union activities. Even if that finding were
supportable as an initial matter, I find that Respondent has shown that quality control people
normally work mostly in the quality control area. Levey’s admonition that Sleiman stay in the
quality control area was thus not an unlawful restriction, but rather a reminder that he was not to
wander away from the area where he was to perform his major job responsibilities. As such it
was based on a legitimate business-related assessment of the situation. In these
circumstances, I find that Respondent has shown that it would have treated Sleiman just as it
did, advising him not to wander outside the quality control area when he had no work-related
reason to leave the area, even in the absence of Sleiman’s union activities. Consequently, I will
dismiss the allegation in paragraph 14(b) of the complaint.
The June 27 Written Warning
On Monday, June 25, 2007, Sleiman again distributed union material to employees
outside the facility at the beginning of the twilight shift. On that occasion, he distributed a copy
of the Union’s June 25 newsletter. On the front page of the newsletter was a signed article by
Sleiman, accompanied by his photograph, entitled, “Welcome to Our Family.” As a rhetorical
device, he began the article by urging the DHL managers and supervisors not to read the rest of
the article because “you aren’t going to like it.” He went on to urge employees to join and
support the Union to better their working conditions, and to criticize the Respondent for giving
employees a “fake” welcome and then chasing them out “as soon as the last box is off the
slide.” He ended the article by tweaking the managers, stating, “I warned you not to read it!!!”
GCX 15.
Sort Manager Mark Levey had received a copy of the newsletter article, and Levey
approached Sleiman twice, during his shift the next day, on June 26. On both occasions, Levey
referred to Sleiman’s article and stated that he could not avoid reading the whole article.
Sleiman’s testimony in this respect was uncontradicted because, although Levey testified
extensively during this trial, he did not testify about the newsletter article or any conversations
with Sleiman about the article. Nor do I have any reason to question the veracity of Sleiman’s
testimony about Levey’s comments on the newsletter article. I therefore credit Sleiman in this
respect.
Also, on June 26, at about 11:15 p.m., Sleiman was approached by his supervisor,
William Wilkinson. Wilkinson told Sleiman to punch out immediately because his hours were
being cut. After he had punched out, Wilkinson asked Sleiman if he had taken his break and
Sleiman replied that he had. Wilkinson then said that Sleiman had not worked for four hours—
the point after which employees may take a paid break, under Respondent’s policy. Sleiman
responded that he was scheduled or intended to work 7 hours that night before Wilkinson asked
him to punch out, which would have put him in compliance with Respondent’s policy. Sleiman’s
testimony in this respect, which I credit, is uncontradicted because Wilkinson did not testify in
this trial.11
Sleiman was subsequently issued a written warning for admittedly taking his break
before working a full 4-hour shift, in violation of Respondent’s policy. The written warning—a

11 Sleiman also testified that he was told by his previous supervisor, Trevor Steigerwalt, that
he could take his paid break between 10:30 and 11:00 and this is what he had done. Sleiman’s
testimony in this respect was not contradicted by Steigerwalt.
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corrective action—carried a date of June 27, 2007 and was issued by Supervisor Wilkinson.
Sort Manager Mark Levey signed off on the warning as manager. Sleiman refused to sign the
warning, with a notation dated June 28. However, the written warning also contained a
reference to an incident that took place two weeks before, on June 13 or 14. As mentioned
above, on that occasion, Sort Manager Mark Levey had spoken to Sleiman twice, first about
failing to ask his supervisor’s permission before taking a break, and secondly about being out of
his area. Levey did not issue a written corrective action memorializing this discussion at the
time, even though the record shows that corrective actions are regularly issued for verbal
warnings. Indeed, the corrective action form has a specific box for “verbal warning.”12
I find that the General Counsel has shown that the June 27 warning was issued because
of Sleiman’s union activities, particularly his critical newsletter article that was distributed two
days before. Levey, who was instrumental in issuing the warning, had commented about the
article. The incident that supposedly provoked the warning was Sleiman’s apparent failure to
take his break after working four hours. But the uncontradicted testimony shows that Sleiman
was slated to work more than four hours, as he had consistently done in the past, according to
Respondent’s own records. Thus, his break would have been permissible had he not been told
to clock out early on the evening of June 27. The reason he was told to clock out was that his
hours were being reduced, a change that, as I find below, was discriminatory. Moreover, the
June 27 warning added an incident to the warning that had nothing to do with what happened
on that night to precipitate the warning. Respondent added something that happened two
weeks before, when Levey told Sleiman not to take a long smoking break and not to wander
around the facility. Levey had not issued a warning at the time of the earlier incident, obviously
because he did not think that his conversation with Sleiman required a warning. Indeed,
Levey’s testimony denying that he restricted Sleiman’s movements on that occasion makes it
clear that he did not consider the matter one that justified disciplinary action. Levey had had
numerous conversations with Sleiman about wandering around the facility while he was on the
tugger; and he did not believe that any of those conversations justified any sort of discipline,
according to his own testimony. It was partly based on that testimony of Levey’s that I
dismissed the allegation that Levey had unlawfully restricted Sleiman to the quality control
department. It was only after Sleiman’s newsletter article apparently rankled Levey, and only
after Sleiman’s hours were discriminatorily reduced, that Levey injected the earlier incident into
the June 27 warning. In these circumstances, I find that the warning was issued for
discriminatory reasons. In addition, the Respondent has failed to show that it would have
issued the warning in the absence of Sleiman’s union activities. Viewing what precipitated the
warning, it is clear that Sleiman’s break would have been proper had he not had his hours
reduced for discriminatory reasons; and it is also clear that, absent Sleiman’s union activities,
Respondent would not have added the two-week old incident as an item on the June 27
warning. Accordingly, I find that the General Counsel has proved the allegation in paragraph
14(d) of the complaint.
The Reduction in Hours
As indicated above, Sleiman’s uncontradicted testimony shows that Supervisor
Wilkinson notified Sleiman at about 11:15 p.m., the night of June 26, that his hours were being
cut and that he had to punch out immediately. He had only worked roughly 4 hours of an
anticipated 7-hour stint that night. Again, according to Sleiman’s uncontradicted testimony, he
was the only quality control employee sent home early that night. The others continued to work.

12 Sleiman complained to Plant Manager Swallow about the June 27 warning, but Swallow
declined to alter it.
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Wilkinson also told Sleiman that, from then on, he was only permitted to work until 10:30 p.m.
And, in fact, that prohibition was implemented and applied until the date of the trial.
Documentary evidence confirms that Sleiman’s hours were cut dramatically from June 26, 2007,
through the rest of the year. Before the end of June, he regularly worked between 5 to as many
as 8 hours per shift. After that point, except on a few days in which he worked 4 hours, he
never worked more than 3 or 3 ½ hours. See GCX 14. The period covered by the documentary
evidence includes peak season, which begins in August or September and runs through
December, a time when all employees are encouraged to put in more hours. According to Plant
Manager Swallow, during peak season, “the heaviest time of the year,” Respondent asks “the
part-time employees to work longer hours;” indeed, they are asked to ”actually double shift.” Tr.
771. See also RX 12 and Tr. 779. But Sleiman was never asked to work more hours during
peak season. Nor, at any time, was he ever told that he could work more hours or that
Wilkinson’s instructions were rescinded. In contrast to Sleiman, two other part-time quality
control employees, Julio Romero and Dave Hunsberger, consistently worked 7 or 8 hours,
sometimes more, during the same July through December 2007 period, according to additional
documentary evidence. GCX 22 and 23.
In view of the timing of the initial reduction in Sleiman’s hours, one day after his
newsletter article critical of Respondent, and the same day he was discriminatorily issued a
written warning, I also find that Respondent’s reduction of Sleiman’s hours was discriminatory.
Sleiman was treated differently from his part-time colleagues in the quality control department
since he was the only one whose hours were cut. Moreover, Wilkinson’s precipitous action in
telling Sleiman to punch out in the middle of the shift was extraordinary and unexplained. It is
highly unlikely that, if the reduction were based on legitimate business reasons, it would have
been announced so suddenly and dramatically. Thus, the General Counsel has clearly met his
initial burden of proving discrimination under Wright-Line.
Nor has Respondent rebutted the clear inference of discrimination. It is true that
Respondent ordered a general cut in hours in June, but Plant Manager Swallow left the
specifics of the cut to his subordinates.13 Sort Manager Levey testified that he ordered the cuts
in the areas under his supervision, but his testimony was woefully inadequate to explain why he
made the cuts in the quality control department. He testified that he had to cut hours in the
departments under his authority because of “[p]roduction standards we had to meet.” Tr. 1013.
He also testified, almost theoretically, in response to a leading question, that the quality control
area “would be one of” the areas in which it would be easier to cut hours without affecting
service. This testimony is hardly a coherent explanation. It does not justify or even establish a
cut in hours for the quality control department. Nor does his testimony offer anything to explain
why Sleiman’s hours were cut and the hours of other quality control people—particularly, the
other part-time quality control people—were not.14 Nor does it make sense for Respondent to
cut the hours of an employee, who, as I note below in the next section of this decision, was
found in his last evaluation to have been a “good hard worker.”

13 Swallow testified theoretically that quality control would be one of the areas in which it
would be easier to cut hours, but it is clear that he knew nothing about the specific reduction in
hours in any one department or area. He did not focus on the quality control department when
he ordered a general reduction in hours. And he knew nothing about why Sleiman’s hours were
cut.
14 Contrary to the suggestion in Respondent’s brief (Br. 116), there is no evidence that
Respondent spared Hunsberger and Romero from a cut in hours because they had special or
unique job requirements. Levey, for example, made no such representation in his testimony.
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To the extent that Levey’s testimony can be viewed as justifying the reduction in
Sleiman’s hours as non-discriminatory, I reject it as not worthy of belief. Although I credited his
testimony in part in other sections of this decision, I found him particularly unreliable when, as
here, his testimony seemed to mask anti-union sentiments. For example, I discredited his
testimony that, on April 30, he did not make statements to the handbillers to the effect that they
could not handbill on the sidewalk near the entrance to the facility. Wilkinson, of course, did not
testify. It was he who would have known the real reason why Sleiman’s hours were cut; and it
was he who would have known more about the reduction of hours in the quality control
department. Nor did any other witness on Respondent’s behalf reliably explain why Sleiman’s
hours were cut. Significantly, even during peak period, when Respondent encouraged
employees to work more hours, no one in management thought to increase Sleiman’s hours or
even talk to him about increasing his hours. In these circumstances, I find that Respondent not
only failed to rebut the General Counsel’s strong initial showing of discrimination, but that
Respondent’s evidence—or, more precisely, the lack of it—confirms and strengthens the finding
of discrimination. Accordingly, I sustain the allegation in paragraph 14(c) of the complaint.15
Sleiman’s Negative Evaluation
On July 9, 2007, Sleiman received his 6-month evaluation, which is used to compute pay
raises under the Respondent’s pay for performance program. That evaluation, which was
prepared by Supervisor Wilkinson, rated Sleiman as having partially met expectations, which
translated into a pay raise of 35 cents per hour. In eight of nine categories, he was rated as
having partially met expectations; in the other, adaptability, he was rated as having fully met
expectations. GCX 5. According to Sleiman’s uncontradicted testimony, when Wilkinson gave
him the evaluation, Sleiman complained about it, whereupon Wilkinson told Sleiman, “I hate to
do this . . . There’s too much politics going on in here, just sign this and let me go.” Tr. 222.
Sleiman’s earlier evaluation, prepared in January of 2007 by Supervisor Sam Manzano, rated
him as fully meeting expectations in 5 categories and as exceeding expectations in 4
categories. In that evaluation, Manzano called him a “good hard worker.” GCX 20. In his
January 2008 evaluation by Supervisor Jeff Magan, Sleiman was rated as having fully met
expectations in 7 of 9 categories. GCX 21.
A day or two after receiving his July 2007 evaluation, Sleiman complained about it to
Human Resources Manager Arends, who agreed to look into the matter. Arends eventually
spoke to Wilkinson and the evaluation was changed. The change was reflected in a revised
evaluation issued on September 18, 2007, about a week after the Board election, which the
Union lost. The revised evaluation was more favorable and found that basically Sleiman met
expectations. Six of 9 categories were changed from partially meets expectations to fully meets
expectations. For example, in both the productivity and quality of work categories, the original
remarks were changed, and, as a result, Sleiman was raised from partially meets to fully meets

15 Contrary to Respondent’s contention (Br. 120), Sleiman did not have an obligation to
volunteer for more hours during peak season, either to establish discrimination or diminish back
pay. First of all, the discrimination here was established even before the peak season call for
volunteers. Moreover, the Respondent’s lack of action in the face of its need for increased
hours manifestly demonstrates that the discrimination continued. It was, in any event,
reasonable for Sleiman to assume that, in the face of the discrimination against him, any
request, on his part, for more hours would have been futile.
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expectations. As a further result, he received an additional raise of 35 cents per hour, paid
retroactively to the date of the July evaluation. GCX 6.16
I find that the General Counsel has shown that Sleiman’s July 2007 evaluation was
negative because of his union activities. Respondent had discriminated against him twice the
month before, once by issuing him a written warning and once by reducing his hours. The latter
discrimination was a continuing violation. The evaluation was admittedly wrong. Indeed,
Respondent issued a revised evaluation after the election. Both the prior and the subsequent
evaluations were much better than the one issued in July. The July evaluation was so out of
character that it cannot be explained by anything other than continued discrimination against
Sleiman. Thus, I find that the negative evaluation was a part of Respondent’s pattern of
discrimination against Sleiman in June and July of 2007. Moreover, Wilkinson’s remark to
Sleiman at the time the negative evaluation was issued—that there were “politics” involved in
the issuance of the negative evaluation—implicates anti-union motivation because the union
campaign and Sleiman’s leadership effort in it were the most likely explanations for the use of
the word, “politics.” That evidence simply reinforces the inference that the negative evaluation
was issued for discriminatory reasons.
Respondent’s apparent defense on this aspect of the case is that a mistake was made:
The July 2007 evaluation was simply wrong and it was eventually corrected. In support of its
defense, the Respondent submits documentary evidence showing that several other evaluations
during this time period were also revised upwards. It is not surprising that, in a unit of about 450
employees, some evaluations are corrected or revised. But the fact that other evaluations were
revised, as was Sleiman’s, does not really answer or rebut the General Counsel’s initial showing
that the issuance of Sleiman’s original evaluation was discriminatorily motivated. The fact that it
was revised simply shows that it was more negative than it should have been. Thus, it supports
a crucial aspect of the General Counsel’s case. That other evaluations were also revised
upward does not at all shed light on the reason for Sleiman’s original evaluation, much less
show that Sleiman’s original evaluation was wrong for reasons other than discrimination. And
since Wilkinson, who knew best why the original evaluation was prepared as it was, did not
testify, the record stands silent on the point. Indeed, Wilkinson’s remark to Sleiman at the time
he gave Sleiman the evaluation suggests that he was somehow ordered to issue the negative
evaluation because of “politics,” a euphemism, in this case, for union activities. Respondent has
given no benign answer to that remark. In all the circumstances, the Respondent has failed to
rebut the strong evidence of discrimination in the issuance of the negative July 2007 evaluation
to Sleiman. Accordingly, I find that the General Counsel has proved the allegation in paragraph
14(e) of the complaint.

16 I reject Arends’ testimony that Sleiman did not come to him to complain about the
evaluation until some time in late August and that the changes were mere technical changes. I
found his testimony in this respect as unreliable as it was in the other instances in which I
rejected his testimony. For example, I found his testimony particularly strained when he
emphasized that Sleiman came to him not simply in late August, but in “late, late August.” Tr.
1109. In addition, Sleiman was clearly not a person who would wait before complaining about
adverse employment actions, as this record shows. My assessment of this aspect of Sleiman’s
character lends credence to his testimony that he complained shortly after he received the
evaluation. Moreover, Arends’s testimony about the technical changes in the two evaluations is
refuted by reference to the substantive changes that are apparent on the revised evaluation
itself.
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The Discharge of Employee Emilia Rios
In paragraph 15 of the complaint, the General Counsel alleges that Respondent
discharged Emilia Rios because of her union activities. It is admitted that Rios was a known
union activist. She had distributed union literature outside the entrance to the facility and had
been one of the handbillers who was subjected to unlawful surveillance and interference from
the Respondent. She was the leader among Spanish-speaking employees in distributing
authorization cards to and gathering signed cards from other employees. She also gave an
example of one occasion when she was prevented from distributing union literature in the
cafeteria by Human Resources Manager Arends. Rios had a break in employment from the
beginning of April to sometime in May 2007, apparently for medical reasons. When she
returned, she resumed her union activity. On June 18, she wrote an article for the Union’s
newsletter critical of the Respondent and favorable to the Union. The article complained about
the Respondent’s reduction of hours for part time employees like Rios; the article also
complained about the constant changes in the hours. See RX 8.
On June 25, Supervisor Brian Buck met with Rios and several other part-time employees
at the beginning of their shift on Reload 2. Sam Manzano was the Service Supervisor for
Reload 2. Apparently, he was in overall charge of these employees. But he was absent on the
night of June 25. At the June 25 meeting, Buck announced a change in the reporting time for
Rios and the others from 7:30 p.m. to 7:45 p.m. The change was to begin the next day, June
26. Although the change in starting time applied to all the employees, Rios maintained that she
alone ended her work day at 10:30 p.m., so the change meant a reduction in her time, and
consequently in her pay, of some 15 minutes. Later that evening, Rios complained to Buck
about the reduction in her hours. According to Rios, Buck replied that her hours were reduced
because “you don’t wear the appropriate clothing, you don’t use metal shoes as you’re
supposed to and because you complain a lot.” Tr. 608. Since Buck did not testify, Rios’s
testimony on this point is uncontradicted.
At any rate, the next day, June 26, Rios punched in at 7:27 p.m., contrary to the
instructions of her supervisor the night before. According to Rios, she realized that she had
punched in too early, and attempted to rectify the situation by going to Supervisor Sam
Manzano and telling him about it. According to Rios, at about 7:35 p.m., Manzano told her that
“it would be fine, he’d take care of it.” Tr. 610. Manzano’s testimony is quite to the contrary on
this point. Manzano was notified early on the evening of June 26 about the change in starting
times announced the night before. After he came out of a meeting with full-time employees at
about 7:30 p.m., he noticed Rios sitting in the break area. That would have been well before
her new starting time. After another meeting with part-time employees at 7:45 p.m., which
included Rios, he consulted the time-keeping system and confirmed that Rios had punched in at
7:27. Since that was some 18 minutes before her scheduled start time, he approached Rios
and brought this to her attention. Only at that point, according to Manzano, did Rios say that
she had made a mistake in punching in early. In assessing the credibility of both witnesses, I
credit Manzano on this part of the case. His testimony was clear, detailed and coherent. Rios,
on the other hand, seemed to be trying to shape her testimony to her own ends. For example,
she testified that Manzano did not adequately translate for her or explain to her why she was
being discharged, but, in her pre-trial affidavit, she clearly set forth the reasons she was given
for her discharge. She was also less than candid in acknowledging her prior disciplinary record.
Nor was I impressed by her demeanor on the witness stand. She seemed somewhat
argumentative and unable or unwilling to answer questions directly. In these circumstances, I
have no doubt that Manzano’s account of what happened on June 26 was more accurate than
Rios’s account.
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After he spoke to Rios, Manzano confirmed with Buck that Rios had complained to Buck
about the new start time. He also observed that other part-time employees working with Rios
had punched in appropriately. Manzano believed that Rios’s conduct amounted to a theft of
time and brought it to the attention of his superior, Sort Manager Doug Albert. Rios had had two
other disciplinary actions in her personnel file, both issued by Manzano. Both indicated that
they were final warnings, which meant that if she committed the same offense again, she was
subject to discharge. The warnings, which were labeled corrective actions, are written in
English, but, at the time they were issued, Manzano, who is bilingual, translated and explained
the substance of the warnings to Rios, who understands some English, but primarily speaks
Spanish. The first warning, dated February 6, 2007, dealt with an incident that took place on
February 2. It chastised her for taking unauthorized breaks. The second warning, dated March
8, 2007, dealt with an accumulation of incidents that amounted to failures to punch out
appropriately, which resulted in a consequent theft of time. The March 8 warning states that
Rios “has engaged in a pattern of untimely punch outs that extend a half an hour beyond her
shifts scheduled ending time. Beginning 2/26/07, supervisors clearly informed employees of the
requirement to punch out at the twilight shift’s scheduled end time, 10:30. Emilia has
continuously punched out at (11) eleven o’clock between 2/26/07 and 3/6/07, despite the fact
that no work is available past 10:30.” RX 20(b).17 The General Counsel does not allege that
these prior warnings, which were issued before the union activity began in earnest, were
unlawful.
As a result of the June 26 incident, and after taking into consideration Rios’s earlier
warnings, Respondent decided to discharge her. This was accomplished on June 27, shortly
after Rios reported for work. Manzano accompanied Rios to Sort Supervisor Albert’s office,
where she was informed that she was discharged. Manzano translated what was said into
Spanish so that Rios could understand what was being done and why it was done.
The General Counsel has met his initial burden to show that Respondent’s discharge of
Rios was motivated by her union activities. She was a known union leader, who had been
involved in extensive open union activity. She had, for example, been among the handbillers
who were interfered with by Respondent. Moreover, the timing of her discharge came a little
over a week after the publication of an article by her in the Union’s newsletter critical of
Respondent’s policy on the reduction of and changes in hours for part-time employees, the very
policy Rios criticized on June 25, the day before her discharge. According to Rios’s
uncontradicted testimony, Supervisor Buck expressed his concern that she “complain[ed] a lot,”
an implicit reference to her newsletter article. Moreover, Respondent had, at about the same
time, engaged in discriminatory retaliation against Elias Sleiman, a fellow union supporter and
handbiller. In these circumstances, particularly the timing of the discharge after the critical
newsletter article, I find that the General Counsel has met his initial Wright-Line burden of
showing that the discharge was due to Rios’s union activities.

17 The transcript mistakenly refers to two Respondent’s Exhibits 20, both of which were
introduced and received into evidence. The first, which shall remain labeled as Respondent’s
Exhibit 20, is Sleiman’s August 27, 2007 newsletter article, entitled, “I will not be silenced.”
Penn referred to that article in his testimony. The second Respondent’s Exhibit 20, which was
Rios’s second warning or corrective action, dated March 8, 2007, was not originally provided to
me in the list of exhibits. It was later provided to the reporting service and subsequently to me.
To avoid confusion, this exhibit, Rios’s second corrective action, will be relabeled Respondent’s
Exhibit 20(b). There was discussion of this exhibit, along with Respondent’s Exhibit 19, Rios’s
first corrective action, in Manzano’s testimony.
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I also find, however, that the Respondent has rebutted the General Counsel’s case by
showing that it would have discharged Rios even if she had not engaged in union activity. The
credited testimony shows that Rios deliberately punched in early on the evening of June 26.
Contrary to her testimony, she did not approach Supervisor Manzano to tell him she mistakenly
punched in early. Manzano actually approached her and confronted her with the fact that she
had punched in early. As a result, she would have been paid for time she did not work, thus
stealing time from her employer. Unfortunately for Rios, this was not the first time she had been
cautioned against stealing time. She had been issued warnings three or four months before, for
misusing her break time and for failing to punch out appropriately.18 Each of those warnings
was labeled a final warning. Her early punch-in on June 26 was a continuation of the “pattern”
of time punching violations set forth in her March 7 warning. Notwithstanding her complaint
about the Respondent’s reduction of her hours and those of other part time employees, the
General Counsel did not allege that Respondent was deliberately cutting her hours or was doing
so for discriminatory reasons. In any event, Rios was not free unilaterally to defy Respondent’s
order to change her starting time. All of the other employees working in her area complied with
the new starting time. It is clear that Respondent viewed seriously stealing time by punching in
early, punching out late or misusing paid break periods. There is thus no basis in this record for
finding that firing Rios for this offense was out of character or amounted to a pretext. In view of
Rios’s prior record and her defiance on June 26 of a lawful order changing her starting time,
Respondent has shown that it would have discharged Rios, even in the absence of her union
activities. Accordingly, I shall dismiss the allegations in paragraph 15 of the complaint.19
The Objections to the Election
I have found that Respondent engaged in unlawful surveillance of employee handbilling
activity on July 30, 2007. This incident, which took place within the critical pre-election period,
was a continuation of previous unlawful interference with legitimate handbilling activity. The

18 Because Rios was off work for an extended period between her final warnings and June
26, the final warnings were actually more recent in terms of her total work time.
19 The General Counsel submitted documentary evidence (GCX 26-31) with respect to the
disciplinary records of five employees who allegedly committed the same type of offenses as
Rios, but were not discharged for those offenses. Although all but one of those employees were
eventually discharged for different reasons, all had been warned about inappropriately punching
in or out and thus stealing time. I do not agree with the General Counsel that the documentary
evidence shows that Respondent treated those five employees more leniently than Rios and
that such lenient treatment demonstrates that Rios was discharged for pretextual reasons to
mask a discriminatory motive. Employees Vega, Drisker, Ocasio and Sanchez were each
issued a single written warning essentially for stealing time offenses. But so was Rios, prior to
the incident that prompted her discharge. Johnetta McNeill received two verbal warnings for
stealing time in September of 2007 and a final written warning for another offense of that type
on December 26, 2007. She was fired a month later for insubordination. Although McNeill was
initially given two verbal warnings, she was given a final warning, just like Rios, for stealing time.
Rios did it again and she was fired. McNeill was thus not treated substantially differently than
Rios. Nor is there any evidence as to whether she was a union supporter or not. I cannot
conclude simply from the documentary evidence about McNeill that Rios was treated in a
disparate manner or that such treatment was caused by Rios’s union activities. In any event,
the overall documentary record for these five employees shows that the Respondent viewed
seriously the notion of stealing time. Thus, far from establishing a discriminatory motive or a
pretext for the discharge of Rios, I believe, on balance, the evidence supports the Respondent’s
position rather than that of the General Counsel.
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July 30 violation came to the attention of most of the employees, who were entering the facility
at the time the unlawful surveillance occurred. Other violations occurred during the critical pre-
election period, which broadly affected large groups, if not all, of the employees who voted in
the election. Thus, the Respondent also violated the Act by virtue of Penn’s unlawful threat, in
an August 2007 meeting of employees, to sue a leading union activist for engaging in protected
concerted activity. Widely disseminated newsletters were implicated in this matter, both before
and after the threat. The Respondent also engaged in discrimination against Union activist
Elias Sleiman. That discrimination included a reduction in his hours, which began prior to the
filing of the election petition, but continued throughout the pre-election period. Indeed, it
continued until the date of the trial in this case. In view of Sleiman’s position as an outspoken
union leader—he was, of course, the object of the unlawful threat to sue—Respondent’s
treatment of him undoubtedly came to the attention of large numbers of employees. In addition,
the Respondent threatened retaliation against an employee for writing a pro-union newsletter
article and threatened an employee with more onerous working conditions if she supported the
Union. While the latter two violations, which both took place shortly before the election, were
probably not as widely known, they follow a pattern of unlawful activity that undoubtedly became
part of the lore of the workplace. A significant number of employees were affected by the
violations. Considered in toto, the violations I have found had a reasonable tendency to
interfere with the holding of a free and fair election on September 12 and 13, 2007. In these
circumstances, I find that the election results must be set aside and new election must be held
that properly reflects the will of the employees free from unfair labor practices or other
objectionable conduct.
Conclusions of Law
1. By directing employees to leave the premises where they were properly engaged in
protected handbilling activity, threatening to call the police if they did not leave and by actually
calling the police, and by engaging in surveillance of the protected union activity of employees,
Respondent has violated Section 8(a)(1) of the Act.
2. By threatening employees with reprisals, including more onerous working conditions
and discharge, for engaging in union activities, Respondent has violated Section 8(a)(1) of the
Act.
3. By threatening to sue employees for engaging in protected union activity, Respondent
DHL and Respondent Crossroads have violated Section 8(a)(1) of the Act.
4. By reducing the work hours of, and issuing warnings and negative performance
evaluations to, employees for engaging in union activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
5. The above violations are unfair labor practices within the meaning of the Act.
6. Respondent DHL and Respondent Crossroads have not otherwise violated the Act.
7. By engaging in some of the unfair labor practices set forth above—those occurring
after the petition was filed in this case, the Respondent has interfered with the holding of a free
and fair election on September 12 and 13, 2007. That election is set aside and the Regional
Director must hold a new election.
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Remedy
Having found that Respondent DHL and Respondent Crossroads have engaged in
certain unfair labor practices, I will order them to cease and desist from engaging in those unfair
labor practices in the future and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent DHL, having unlawfully discriminated against employee Elias Sleiman, must
offer him reinstatement of the hours he previously worked prior to his unlawful reduction of
hours and must make him whole for any loss of earnings and other benefits because of such
reduction in hours. Backpay, together with interest, shall be computed in accordance with
applicable Board law. Respondent DHL must also expunge the unlawful warning and the
unlawful negative evaluation issued to Sleiman and promise not to use such unlawful
documents against him in future disciplinary actions. Respondent DHL will also be ordered to
post an appropriate notice to employees.
Because Respondent Crossroads has no employees who are affected by its unfair labor
practice and because it is in the business of providing labor relations advice to clients, a notice
posting by Respondent Crossroads would be useless. However, the clients of Respondent
Crossroads do have employees and they should know that Respondent Crossroads has
violated the Act, as found in this decision. Accordingly, I am ordering that Respondent
Crossroads mail an appropriate notice, at its expense, to all of its clients as of the date that this
order becomes a final order of the Board.
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended20
ORDER
The Respondent DHL, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Directing employees to stop engaging in protected union activity, threatening to call
or calling the police to stop such protected activity, or surveilling or otherwise interfering with
such protected union activity.
(b) Threatening reprisals, including instituting more onerous working conditions and
discharging or otherwise disciplining employees because they engage in protected union
activity.
(c) Threatening to sue employees for engaging in protected union activity.
(d) Discriminating against employees by reducing their hours, issuing them warnings or
negative evaluations or in any other way because they engage in protected union activity.

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended order herein shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be waived
for all purposes.
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(e) In any like or related manner, interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days of this Order, remove the discriminatory warning issued to employee
Elias Sleiman, as well as the discriminatory negative evaluation issued to Sleiman in July 2007
from his employment file, and, within 3 days thereafter, notify him in writing that this has been
done and that neither of these will be used against him in any way.
(b) Immediately reinstate the hours previously worked by Elias Sleiman before the
unlawful reduction of his hours beginning on June 26, 2007 and make him whole for any loss of
pay and benefits due to the discriminatory reduction of his hours, together with any interest, as
computed under applicable Board law.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its office and place of business in
Breinigsville, Pennsylvania, copies of the attached notice marked “Appendix A.”21 Copies of the
notice on forms provided by the Regional Director for Region 4, after being signed by
Respondent DHL’s authorized representative, shall be posted by Respondent DHL and
maintained for 60 consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent DHL to
ensure that the notices are not altered, defaced or covered by any other material. In the event
that, during the pendency of these proceedings, Respondent DHL has gone out of business or
closed the facility involved herein, Respondent DHL shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by
Respondent at any time since May 29, 2007.
(e) 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 Respondent DHL has taken to comply.
The Respondent Crossroads, its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Threatening to sue employees for engaging in protected union activity.
(b) In any like or related manner, interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.

21 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.”
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2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Copies of the attached notice marked “Appendix B,”22on forms provided by the
Regional Director for Region 4, after being signed by an authorized representative of
Respondent Crossroads, shall be mailed, at its expense, to all of its clients as of the date this
order becomes final.
(b) 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 Respondent Crossroads has taken to comply.
IT IS ALSO ORDERED that Case 4-RC-21327 be severed and remanded to the
Regional Director to schedule a new election when she thinks it appropriate to do so.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found herein.
Dated, Washington, D.C., June 5, 2008.
____________________
Robert A. Giannasi
Administrative Law Judge

22 See fn. 21 above for language change if the order is enforced by a court of appeals.
JD–29–08
Breinigsville, PA
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT direct employees to stop engaging in protected union activity, threatening to call or calling
the police to stop such protected activity, or surveilling or otherwise interfering with such protected union
activity.
WE WILL NOT threaten reprisals, including instituting more onerous working conditions and discharging
or otherwise disciplining employees because they engage in protected union activity.
WE WILL NOT threaten to sue employees for engaging in protected union activity.
WE WILL NOT discriminate against employees by reducing their hours, issuing them warnings or
negative evaluations or in any other way because they engage in protected union activity.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act.
DHL EXPRESS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.
JD–29–08
Breinigsville, PA
APPENDIX B
NOTICE
Provided by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to publish and obey this Notice.
FEDERAL LAW GIVES EMPLOYEES THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with them on their behalf
Act together with other employees for their benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten to sue employees for engaging in protected union activity.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
THE CROSSROADS GROUP LABOR
RELATIONS CONSULTANTS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.